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,

v.

DERON DIAMOND GAINES,

Defendant and Appellant.

 A141836

 (Contra Costa County

 Super. Ct. No. 05-132268-4)

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. 
2

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

 

2

The trial court later signed a written probation order, which sets forth the 

probation conditions in less detail. To the extent the written order is in conflict with the 

trial court’s oral pronouncements, we find the trial court’s oral pronouncement controls. 

Where the reporter’s transcript and clerk’s transcript cannot be harmonized, “ ‘that part of 

the record will prevail, which, because of its origin and nature or otherwise, is entitled to 

greater credence.’ ” (People v. Smith (1983) 33 Cal.3d 596, 599.) In this case, there is no 

indication the trial court intended the written order to modify his prior oral statements 

concerning probation conditions. (See People v. Rodriguez (2013) 222 Cal.App.4th 578, 

586.)
3

require a probationer to know that something falls within a prohibited category when the

category is essentially clear.

Frustrated with the “dismaying regularity” of having to “revisit the issue in orders 

of probation,” the Third Appellate District has incorporated, by operation of law, a 

blanket knowledge requirement into all category conditions. (People v. Patel (2011) 

196 Cal.App.4th 956, 960.) In our view, the Third District’s approach fails to solve the 

vagueness problem fully because it neither gives “ ‘adequate notice to those 

[probationers] who must observe [the conditions’] strictures’ ” nor sufficiently protects 

against “ ‘ “the attendant dangers of arbitrary and discriminatory application.” ’ ” (In re 

Sheena K., supra, 40 Cal.4th at p. 890.) Probationers and probation officers cannot be 

expected to know, understand, and adhere to implied terms that, even if binding on them 

as a matter of law, are neither expressed by the sentencing court nor set forth in the 

written probation conditions. 

It is also important to distinguish between the knowledge requirement used to 

make a vague category more precise and mens rea principles. Willfulness is the mens rea 

that is implicitly required for a probation violation. (People v. Cervantes (2009) 

175 Cal.App.4th 291, 295.) Put another way, probation may not be revoked unless the 

evidence shows the probationer’s conduct constituted a willful violation of the terms of 

his or her probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 983.) Thus, 

sentencing courts need not include a requirement that a probationer knowingly violated a 

condition in order to protect against enforcement of unwitting violations. Moreover, 

expressly adding a mens rea requirement to a probation condition may not clarify the 

ambiguity at issue. If reasonable probationers can be confused about what falls within a 

prohibited category, informing them they cannot knowingly engage in conduct related to 

that category may still not explain clearly what they are supposed to avoid.

Our colleagues in Division Four recently disapproved of this approach In re 

Kevin F. (2015) 239 Cal.App.4th 351 (Kevin F.). Specifically, the court took issue with 

cases holding probation conditions need not articulate a mens rea requirement. (Id. at 

p. 362.) The court reasoned these cases wrongly “presuppose that the requisite element 
4

of mens rea for proof of a violation is readily ascertainable in advance.” (Ibid.) We 

respectfully disagree with Division Four’s reasoning. Whether or not a mens rea 

requirement is ascertainable in advance, adding such a requirement does not provide any 

more or less notice to the probationer as to what types of conduct should be avoided. If 

probationers are unclear about what a particular probation condition forbids them from 

doing, informing them they cannot knowingly engage in such conduct may not clarify the 

ambiguity. And if the probation condition clearly puts probationers on notice of the type 

of conduct to be avoided, it should be unnecessary to inform the probationers they will 

violate probation if they engage in that conduct willfully. 

Kevin F. was also concerned that “the mens rea standard in revocation proceedings 

is difficult to state with precision.” (Kevin F., supra, 239 Cal.App.4th at p. 363.) The 

court acknowledged it is an abuse of discretion for a trial court to revoke probation based 

upon conduct over which the probationer has no control. (Id. at pp. 362–363.) But the 

court stated that “[b]ecause ‘ “[t]he terms ‘willful’ or ‘willfully . . .’ . . . imply ‘simply a 

purpose or willingness to commit the [prohibited] act . . . ,’ without regard to motive, 

intent to injure, or knowledge of the act’s prohibited character” ’ [citations], the [mens 

rea] standard offers little protection against [an] unwitting violation.” (Id. at p. 363, 

italics omitted.) 

Division Four’s concerns may be valid, but we do not believe they are 

appropriately addressed by adding an express mens rea requirement to every single

probation condition issued by our trial courts. If unwitting violations should not result in 

probation revocation under any circumstance, then a blanket rule should suffice. If there 

are circumstances under which they should result in revocation, then the issue is better 

resolved ex post, when the trial court can review the relevant facts. And as discussed 

above, if the concern is that ambiguous probation conditions will result in unwitting 

violations, then adding an express mens rea requirement will not always provide 

probationers with adequate notice of the conduct they should avoid. Finally, we observe 

that if, as Kevin F. suggests, the terms “willful” and “willfully” cannot be defined with 

precision, adding such terms to probation conditions will add little clarity. 
5

With these principles in mind, we turn to the specific probation conditions at issue 

here. 

B. Alcohol Condition

First, defendant challenges the condition requiring that he “not go to any 

establishment where alcohol is the chief item of sale.” We agree the condition is so 

ambiguous that defendant could unknowingly violate it. An area where alcohol is the 

chief item of sale might be, in some instances, a bowling alley, pool hall, or football 

stadium, even though the primary service being offered is recreational. Likewise, it may 

not be readily apparent whether alcohol is the chief item of sale at establishments such as 

convenience stores and bar-and-restaurant facilities. Contrary to the Attorney General’s 

argument, persons of common intelligence may not agree as to whether alcohol sales at 

such venues are merely ancillary. Accordingly, the probation condition must include an 

express knowledge requirement to give defendant fair warning of what locations he must 

avoid. 

C. Drug Condition

Defendant also challenges that portion of the drug condition prohibiting him from 

possessing or using “narcotics, dangerous drugs, or narcotic paraphernalia.” He asserts 

the term “dangerous drugs” is unconstitutionally vague and overbroad, and should be 

replaced with the term “controlled substances.” Defendant’s claim has merit, since 

“dangerous drugs” can be interpreted in different ways. Various drugs could be 

considered dangerous when used for legitimate medical purposes, even if used with a 

prescription. In fact, Business and Professions Code section 4022 defines a “dangerous 

drug” as one that cannot be used without a prescription.3 Likewise, over-the-counter 

drugs could be considered dangerous if used in sufficient quantities. The Attorney 

 

3

Specifically, the statute states a dangerous drug is one that is “unsafe for self-use 

in humans or animals” and includes drugs that bear the legend: “ ‘Caution: federal law 

prohibits dispensing without prescription,’ ‘Rx only,’ or words of similar import.” (Bus. 

& Prof. Code, § 4022, subd. (a).) The term also encompasses “Any other drug . . . that by 

federal or state law can be lawfully dispensed only on prescription . . . .” (Id., § 4022, 

subd. (c).)
6

General argues “dangerous drugs” is merely shorthand for various classes of narcotics

described in the Health and Safety Code. But the current Health and Safety Code does 

not clearly define the term, and probationers and probation officers may be unfamiliar 

with this particular shorthand. Accordingly, in the interest of clarity and precision, we 

further order that “controlled substances” replace “dangerous drugs” in the disputed 

probation condition. The condition shall also be amended to clarify that defendant may 

use controlled substances with a valid prescription.

D. Weapons Condition

Next, defendant challenges as imprecise the condition that he not own or possess 

“any weapon that can be concealed on [his] person.” All parties appear to agree the 

condition clearly prohibits defendant from possessing inherently dangerous weapons 

designed to cause harm, including firearms, daggers, and brass knuckles. However, 

defendant argues the condition is vague because it is unclear whether it also prohibits 

possession of any concealable object capable of being used as a weapon, such as a 

screwdriver or a wrench. Defendant contends the ambiguity would be remedied if the 

condition was modified by replacing the term “weapon” with “deadly and dangerous 

weapon.” We are not persuaded. In this context, the condition plainly prohibits the 

possession of items specifically designed as weapons, as well as other items that 

defendant may intend to use to inflict great bodily injury. (People v. Moore (2012) 

211 Cal.App.4th 1179, 1183, 1186 [rejecting a challenge to a substantially similar 

condition].) 

Defendant further argues the weapons condition should be modified to include an 

express knowledge requirement. Otherwise, defendant contends, he could unknowingly 

violate the condition if he inadvertently comes into possession of a weapon. The 

argument conflates the issues of vagueness and mens rea. As discussed above, all 

probation conditions implicitly include a mens rea requirement. Accordingly, regardless 

of how the probation condition is worded, defendant cannot be held in violation for 

carrying a concealed weapon if he does so without knowledge of its presence. There is 

thus no need to modify the condition to add an explicit knowledge requirement. Contrary 
7

to defendant’s contentions, adding such a requirement is not necessary to provide him 

with fair warning, since the condition clearly informs him of the kind of conduct he must 

avoid.

III. DISPOSITION

The written probation order is ordered modified to conform to the trial court’s oral 

pronouncement of the probation condition. The challenged probation conditions shall 

read: “You shall not use, possess or have under your custody or control any narcotics, 

controlled substances, or narcotic paraphernalia without a valid prescription. You must 

abstain from the use of alcoholic beverages and marijuana, and you may not go to any 

establishment where you know alcohol is the chief item of sale.” The weapons condition 

does not require modification. In all other respects, the judgment is affirmed.

 

_________________________

Margulies, J.

We concur:

_________________________

Humes, P.J.

_________________________

Dondero, J.
8

A141836

People v. Gaines

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Nancy Davis Stark

Counsel: 

Charles Marson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, 

Assistant Attorneys General, Donna M. Provenzano and Joan Killeen, Deputy Attorneys 

General, for Plaintiff and Respondent.