People v. Gaines

Filed 12/3/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A141836 v. DERON DIAMOND GAINES, (Contra Costa County Super. Ct. No. 05-132268-4) Defendant and Appellant.

Defendant Deron Diamond Gaines challenges conditions of his probation requiring that he may not (1) go to any establishment where alcohol is the “chief item of sale,” (2) use or possess any “dangerous drugs,” and (3) own or possess any weapon that can be concealed on his person. Defendant argues these conditions are unconstitutionally vague and therefore violate his due process rights. We affirm in part and reverse in part. I. BACKGROUND Defendant was charged by amended information with second degree vehicle burglary (Pen. Code,1 §§ 459, 460, subd. (b)), and felony theft (§ 484). It was further alleged defendant had suffered seven prior convictions (six felonies and a misdemeanor), and four prior prison terms. (§ 667.5, subd. (b).) A jury found defendant guilty of vehicle burglary and felony theft, and the trial court found the prior conviction allegations to be true. The court sentenced defendant to a split sentence of four years in county jail and two years on mandatory supervision. At the sentencing, the trial court imposed several conditions of probation, including: (1) “You shall not use, possess or have under your custody or control any

1 All statutory references are to the Penal Code unless otherwise indicated.

narcotics, dangerous drugs or narcotic paraphernalia”; (2) “You must abstain from the use of alcoholic beverages and marijuana, and you may not go to any establishment where alcohol is the chief item of sale”; and (3) “You are not to own, have in your possession, custody or control, any handgun, rifle, shotgun or any other firearm whatsoever, or any weapon that can be concealed upon your person.”2 II. DISCUSSION Defendant contends these probation conditions are unconstitutionally vague. These challenges raise questions of law, which we review de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129.) We conclude that, with the exception of the trial court’s reference to “concealed weapons,” the challenged conditions are unconstitutionally vague. A. Applicable Law Unconstitutionally vague probation conditions may often be cured by requiring the probationer to know a particular association, place, or item is within a prohibited category. (See In re Sheena K. (2007) 40 Cal.4th 875, 892.) For example, a vague condition prohibiting gang associations may be modified to forbid association with any person known to the probationer to be a gang member. (Ibid.) However, not every category condition is vague merely because it does not require the probationer to know a particular association, place, or item is within the prohibited category. A probation condition passes constitutional muster so long as it spells out with reasonable specificity what is prohibited in such a way that persons of common intelligence need not guess at its meaning or differ as to its application. (Id. at p. 890.) Thus, it is unnecessary to