December 8, 2010 By Wallin & Klarich

As a result of a recent decision by the California Courts of Appeal, 6th District, a probation condition requiring that a defendant avoid associating with individuals who are known, or suspected, to be gang members is unconstitutionally vague.

Mario Gabriel pled guilty to charges that included having unlawful possession of a concealed firearm. Convicted in 2009, Gabriel was placed on probation for three years. Among the various conditions of probation imposed by the trial court was the requirement that Gabriel avoid any contact or association with known or suspected gang members, drug users, probationers, or parolees.

Gabriel appealed to the 6th District, contending that the condition failed to provide adequate notice of expectations, thus making it too vague to properly comply with or enforce. He argued that the use of the word “suspected” exposed him to criminal penalties for associating with individuals he may not have known were gang members.

The appellate court agreed with Gabriel’s argument and ordered that the disputed condition be modified to delete the word “suspected.” In passing down the order, the court stated that a probation condition must be worded with sufficient precision so that the probationer is aware of what is required of him and also so the court can determine whether the condition has been violated.

The court determined that to “suspect” is “to imagine [one] to be guilty or culpable on slight evidence or without proof,” and that to “imagine” is “to form a notion of without sufficient basis.” Given this lack of specificity, the court reasoned that the word “suspected” does not adequately provide the defendant notice of what is expected of him when he lacks actual knowledge that a person is a gang member, drug user, or on probation or parole. Furthermore, this word renders the condition too imprecise for a court to properly determine whether a violation of the condition has occurred.

If you are facing a probation violation matter, it is very important that you are aware of your constitutional rights. These inalienable guarantees were included in the U.S. Constitution to ensure that you receive a fair trial. To help you ensure that your rights are not violated, it is very important for you to seek the legal assistance of an experienced criminal defense attorney. At Wallin & Klarich, our Orange County attorneys have been in practice for over 30 years and will use the benefit of their experience to protect your interests and raise the best possible defense in your case. Call us today at 888-749-0034 or visit us online at We will be there for you when you call.

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