“Don’t Bother Anybody”

Is “don’t bother anybody” an unconstitutional term of probation? I was browsing the unpublished cases out of the Sixth District Court of Appeal a while back (because I had nothing better to do) and came across an opinion reversing a probation order made by a judge I used to appear in front of regularly in a county that I won’t name but that I would describe as a sleepy coastal community located on the Monterey Bay and that isn’t the county of Monterey. Here’s some background information on the case:

After a defendant in a vandalism case (I think it was vandalism) admitted a probation violation, the trial court added a new condition: "Don't bother anybody." Defendant objected and the court responded that "[h]e's not to bother anybody. Don't bother anybody. That's my order." The defendant objected that this requirement was overbroad, but the condition "[d]on't bother anybody" was included in the probation order. The defendant then appealed. I thought it was funny that the judge doubled-down and had the condition written onto the probation order - I enjoy stuff like that.

In an unpublished memorandum opinion, the appellate court reversed the probation term, stating that "[t]o withstand a constitutional challenge on grounds of vagueness, a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition." (People v. Hall (2017) 2 Cal.5th 494, 500, 213 Cal. Rptr. 3d 561, 388 P.3d 794; see also In re Sheena K. (2007) 40 Cal.4th 875, 890, 55 Cal. Rptr. 3d 716, 153 P.3d 282 (Sheena K.).) The purpose of the vagueness requirement is to ensure "fair warning," which "'prevent[s] arbitrary law enforcement'" as well as "'providing adequate notice to potential offenders.'" (Sheena K., at p. 890.)

So does “don’t bother anybody” as a probation term withstand constitutional scrutiny? No, final answer.