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Flawed Probation Condition Results in Remand

People v. Gonsalves Court: California Courts of Appeal, Docket: A159031 (First Appellate District), Opinion Date: June 30, 2021. Gonsalves was found in possession of a knife, credit cards in the names of Anna and Tracy, three cell phones, and a hotel key card, which contained credit card information for Carl.. The cell phones contained personal identifying information for numerous people who did not know Gonsalves or give him permission to use their information; they had been used to access websites where personal identifying information could be illegally purchased and contained metadata indicating they belonged to Gonsalves. A jury found Gonsalves guilty of misdemeanor grand theft (Penal Code 484e(d)) and felony fraudulent possession of personal information (section 530.5(c)(3)). The court denied Gonsalves’s request to reduce the felony conviction to a misdemeanor, noting his criminal history, and sentenced Gonsalves to three years of felony probation, ordering Gonsalves not to “associate with[] any person known to [him] to have a criminal record.” The court of appeal remanded for resentencing. The challenged probation condition was constitutionally flawed; the term “criminal record” is impermissibly vague because it has no settled meaning and may include a record of an arrest resulting in no charge or conviction. The condition is not carefully tailored to the government’s interests in rehabilitating Gonsalves and protecting the public. Gonsalves’s probation term must be reduced in accordance with Assembly Bill 1950 (2020).

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