Impermissibly Vague Probation Condition for Associating

In November 2017, a Fremont Police Officer investigated a report of suspicious activity taking place in a grocery store parking lot. He went there and found Michael Carlos Gonsalves there in possession of a knife, credit cards in the names of Anna C. and Tracy J., three cell phone and a DoubleTree hotel key card.

Gonsalves told the police officer that Anna C. and Tracy J. gave him permission to have their credit cards, but at trial Tracy J. testified that her credit cards had been stolen from her car earlier in the day. The hotel card contained credit card information for Carl C., who testified he did not know how his credit card information had been transferred onto the hotel key.

The cell phones contained personal identifying information for numerous people who did not know Mr. Gonsalves and did not give him permission to have such information.

Gonsalves was then arrested and in Alameda Superior Court, a jury found him guilty of misdemeanor grand theft (Penal Code § 484e(d)) and felony fraudulent possession of personal information (Penal Code § 530.5(c)(3)).

At sentencing, the trial court judge denied defendant’s request to reduce the felony to a misdemeanor, noting Gonsalves' “quite lengthy” criminal history and that “he has not performed well in that connection.” It was “not encouraging.” He also noted a “pattern of serious and increasingly serious conduct.”

Nonetheless, he placed Gonsalves on three years of felony probation and ordered him not to “associate with any person known to [him] to have a criminal record.”

Gonsalves then filed an appeal with the First Appellate District Court challenging the validity of the probation condition forbidding him from associating with any persons known to him to have a “criminal record.”

The First Appellate District Court agreed that the probation condition was constitutionally flawed.

It noted from the outset that Gonsalves did not challenge the reasonableness of the association condition under the “longstanding framework” of People v. Lent (1975) 15 Cal.3d 481. Instead, Gonsalves says the association condition is vague and overbroad. It should be mentioned that although Gonsalves did not make this objection at sentencing, he can make such a constitutional challenge for the first time on appeal where, as here, it presents a pure question of law that can be resolved without reference to the sentencing record from the trial court. In re Sheena K. (2007) 40 Cal.4th 875, 888-880.

Court of Appeal First Appellate District San Francisco