Filed 8/11/16 P. v. Godina CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068299

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS276118)

ANTONIETTE GODINA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed as modified.

         Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland,

Assistant Attorneys General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys

General, for Plaintiff and Respondent.

         Antoniette Godina pleaded guilty to one felony count of unlawfully importing a

usable amount of a controlled substance into California. (Health & Saf. Code, § 11352,
subd. (a).) The court imposed a four-year split sentence, with the first two years to be

served in jail followed by two years of mandatory supervision. (Pen. Code, § 1170, subd.

(h)(5)(B).) Godina argues that three supervision terms are unconstitutional. For reasons

we will explain, we conclude one of her arguments has merit. Therefore, we will modify

one term of her supervision and affirm the judgment as modified.

                               FACTUAL BACKGROUND

       The facts are not in dispute, and we take them from the probation report. In

November 2014, based on a computer-generated alert, United States Customs and Border

Protection Officers detained Godina when she drove across the border from Mexico into

the United States. They searched her car and found in it approximately 3.97 pounds of

black tar heroin and approximately 2.29 pounds of white powder heroin. Godina initially

admitted to law enforcement authorities that she was hired to transport the narcotics into

the United States. Godina later recanted, but told the probation officer that when she was

stopped at the border, one of the passengers in her car indicated to her to not say

anything, mentioning that her family was from Sinaloa, Mexico. Godina took that to

mean the passenger's family was in the Sinaloa drug cartel and knew where Godina lived.

       In exchange for her guilty plea to one count of unlawfully importing a usable

amount of heroin, the People dismissed a charge of possession for sale of a controlled

substance. (Health & Saf. Code, § 11370.4, subd. (a)(1).)

       The narrative portion of the probation report states: "The defendant was assessed

by the COMPAS [correctional offender management profiling for alternative sanctions]

assessment tool. [¶] The assessed level of risk for recidivism suggests that the defendant

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is likely to be successful with minimal intervention and that mandatory supervision

would adequately serve to protect the community. Intervention at a more intrusive level

could prove ineffective or counter-productive based upon available research." The

probation officer also stated: "This is the defendant's first conviction. The defendant

currently attends East LA Community College and is studying Sociology. Her studies

will be interrupted if she is sentenced to local prison. She hopes to someday obtain

Bachelor's and Master's degrees in Sociology."

       The probation officer wrote that Godina, who was 24 years old, had smoked

marijuana at the age of 18 and last smoked it at the age of 19. The probation officer also

stated that Godina was not working at the time of her arrest, and concluded, "[Godina]

stated she receives no financial support from her family. A poor financial situation is

often present when people get involved in the transportation/importation of illegal drugs."

       At sentencing, the trial court imposed supervision terms requiring Godina to: (1)

"obtain [the probation officer's] approval as to residence [and] employment." (2) "not

knowingly use/possess a firearm, ammunition or deadly weapon"; and (3) "participate

and comply with any assessment program if directed by the [probation officer]." Godina

did not object to these supervision terms at the sentencing hearing.

                                      DISCUSSION

       Godina contends: "The probation condition giving the probation department

unqualified power to approve or disapprove [her] place of residence or employment is




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untailored and overbroad and violates [her] First Amendment rights to travel and free

association."1

       Probation terms may limit constitutional rights if those limitations are reasonably

necessary to meet the goals of probation. (People v. Bauer (1989) 211 Cal.App.3d 937,

940-941 (Bauer).) Judicial discretion to set terms of probation is circumscribed by

constitutional considerations. (People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.)

When a term impinges on a constitutional right, it must be carefully tailored and

reasonably related to the compelling state interest in reformation and rehabilitation.

(People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Where, as here, a probation term

is challenged on its face as unconstitutional, our review is de novo. (In re Shaun R.

(2010) 188 Cal.App.4th 1129, 1143.) Facial challenges to the constitutionality of

probation conditions may be raised on appeal without prior objection in the trial court.

(In re Sheena K. (2007) 40 Cal.4th 875, 883, 887-889.)

       When an offender chooses probation, thereby avoiding incarceration, state law

authorizes the sentencing court to impose conditions on such release that are "fitting and

proper to the end that justice may be done, that amends may be made to society for the

breach of the law, for any injury done to any person resulting from that breach, and . . .

for the reformation and rehabilitation of the probationer." (Pen. Code, § 1203.1, subd.


1       The propriety of a residence approval probation condition in a case involving
possession of drugs and misdemeanor drug use is currently before the California Supreme
Court. (People v. Schaeffer, review granted Oct. 31, 2012, S205260.) Additionally,
although the precise issue presented here concerns conditions of mandatory supervision,
rather than conditions of probation, we apply the same standards to evaluate their validity
and reasonableness. (People v. Martinez (2014) 226 Cal.App.4th 759, 763-764.)
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(j).) Accordingly, the California Supreme Court has recognized a sentencing court has

"broad discretion to impose conditions to foster rehabilitation and to protect public safety

pursuant to Penal Code section 1203.1." (People v. Carbajal (1995) 10 Cal.4th

1114, 1120.)

       The sentencing court abuses its discretion when its determination is arbitrary or

capricious or "exceeds the bounds of reason, all of the circumstances being considered."

(People v. Giminez (1975) 14 Cal.3d 68, 72.) A term of supervision "will not be held

invalid unless it '(1) has no relationship to the crime of which the offender was convicted,

(2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct

which is not reasonably related to future criminality.' " (People v. Lent (1975) 15 Cal.3d

481, 486.) "This test is conjunctive—all three prongs must be satisfied before a

reviewing court will invalidate a probation term. [Citations.] As such, even if a

condition of probation has no relationship to the crime of which a defendant was

convicted and involves conduct that is not itself criminal, the condition is valid as long as

the condition is reasonably related to preventing future criminality." (People v. Olguin

(2008) 45 Cal.4th 375, 379-380.) A "court may leave to the discretion of the probation

officer the specification of the many details that invariably are necessary to implement

the terms of probation. However, the court's order cannot be entirely open-ended."

(People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358-1359 (O'Neil).)




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                     I. The Residency and Employment Requirement

       As Godina pleaded guilty to importing a controlled substance, the appropriate

inquiry is whether the condition that she obtain the probation officer's approval as to

residence and employment is reasonably related to her supervision. In Bauer, upon

which Godina relies, the court struck a residence-approval condition, which seemed

designed to prevent the defendant from living with his parents because they were

overprotective. Nothing in the record suggested that the defendant's home life

contributed to the crimes of which he was convicted (false imprisonment and simple

assault), or that his home life was reasonably related to future criminality. (Bauer, supra,

211 Cal.App.3d at p. 944.) The court concluded that the residence approval condition

impinged on the right to travel and freedom of association, and it was extremely broad

since it gave the probation officer the power to forbid the defendant from living with or

near his parents. (Ibid.)

       The present case is distinguishable from Bauer. Godina committed a grave crime,

crossing an international border and, possibly at the direction of a drug cartel, attempting

to import into the state a significant amount of drugs. Under these circumstances, where

she lives may directly affect her rehabilitation. For example, without any limitations, she

could choose to live in a residence where drugs are used or sold. Thus, the state's interest

in Godina's rehabilitation is properly served by the residence-approval condition.

Moreover, probation conditions "should be given 'the meaning that would appear to a

reasonable, objective reader.' " (People v. Olguin, supra, 45 Cal.4th at p. 382.) We



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presume a probation officer will not withhold approval of a residence for an irrational or

capricious reason. (Id. at p. 383.)

         The employment condition at issue here enables the probation department to

monitor other specific conditions of supervision imposed by the trial court. Further, in

light of the probation office's conclusion that Godina's unemployment was possibly

related to her getting involved in importing drugs into the country, the state has a

reasonable interest in ensuring Godina's employment is approved by her probation officer

to prevent future criminality. (See People v. Lewis (1978) 77 Cal.App.3d 455, 464

[upholding probation order that precluded defendant from working in specified locations

and required "that defendant maintain employment to be approved by the probation

officer"].)

         We conclude that the trial court did not abuse its discretion in imposing the

condition that Godina, as a term of her mandatory supervision, obtain the approval of her

probation officer as to her residence and employment.

                   II. The Assessment Program Requirement is Overbroad

         Godina contends the condition requiring her to participate and comply with any

assessment program if directed by the probation officer is an overbroad delegation of

power.

         When it comes to participation in court-ordered programs, conditions leaving the

selection and scheduling of programs within the discretion of the probation officer have

been upheld. "The trial court is poorly equipped to micromanage selection of a program,

both because it lacks the ability to remain apprised of currently available programs and,

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more fundamentally, because entry into a particular program may depend on mercurial

questions of timing and availability." (People v. Penoli (1996) 46 Cal.App.4th 298, 308

(Penoli); see In re Moriah T. (1994) 23 Cal.App.4th 1367.) Even if the court could be

more specific in its order, that does not necessarily render it overbroad. (Penoli, at p. 308

["Desirable as such a narrowing of the probation officer's discretion might be, however,

we are not prepared at this time to hold that its absence constitutes prejudicial error"].)

       As to the separate question of whether the condition is vague under the

constitution because it provides insufficient notice of what would be expected of the

defendant, the court in Penoli found that notice was satisfied if the probationer's trial

attorney had actual knowledge of what the program ordered by the court would typically

entail in terms of treatment and duration. (Penoli, supra, 46 Cal.App.4th at p. 309.)

Such an order also does not have to be specific regarding how compliance with the

program will be assessed since it is ultimately up to the sentencing court to determine

compliance with conditions of probation, not the probation officer. (Id. at p. 310.)

       Here, the challenged condition does not specify what types of assessment

programs the probation officer can order Godina to participate in and thus appears to

convey upon the probation officer the kind of unfettered discretion that California courts

have repeatedly found vague and overbroad. (See Bauer, supra, 211 Cal.App.3d at

pp. 943-945; O' Neil, supra, 165 Cal.App.4th at pp. 1357-1358.)

       The People cite to Penoli in arguing that the identical condition is not vague or

overbroad, but such an argument is unavailing. Penoli did permit a fair amount of

discretion to be exercised by the probation officer in selecting a program, but the

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contested condition in Penoli stated that the treatment was for drug abuse. (Penoli,

supra, 46 Cal.App.4th at pp. 301-302.) Penoli does not stand for the proposition that a

probation officer can be given the power to order participation in a program without any

guidance regarding the program's purpose. Furthermore, a condition ordering a

probationer to participate in polygraph examinations and answer questions posed to him

truthfully as part of a sex offender treatment program was found constitutionally

permissible. (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320-321.)

However, such a condition must limit the questions asked to those relevant to the

probationer's rehabilitation and the crime of conviction. (Id. at p. 321.)

       Thus, in the absence of any language restricting the assessments to the task of

assessing problems related to defendant's rehabilitation or crime of conviction, this

supervision condition is overbroad and we modify it to state that Godina is required to

participate in an assessment program which relates to the dangers and harms of drug

smuggling and trafficking if directed by the probation officer.

                        III. The Weapons Use or Possession Term

       Godina asserts the supervision term regarding weapons fails to allow for lawful

use of weapons to defend herself. She requests we modify the term accordingly. Relying

on this court's opinion in People v. Forrest (2015) 237 Cal.App.4th 1074, the People urge

us to reject this contention. Unlike the defendant in Forrest, however, Godina was not

convicted of a violent crime. (Id. at pp. 1076, 1083.) Nonetheless, Forrest is instructive,

as we concluded the omission of a reference to self-defense did not render the condition



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overbroad under the constitution because no law enforcement officer would consider

defendant's fleeting use of a weapon in self-defense as a probation violation. (Id. at

p. 1083.)

       Here, if Godina possessed or used a dangerous or deadly weapon in self-defense,

she could establish her possession or use was not willful, i.e., the absence of mens rea, at

the probation violation hearing. "A court may not revoke probation unless the evidence

supports 'a conclusion [that] the probationer's conduct constituted a willful violation of

the terms and conditions of probation.' " (People v. Cervantes (2009) 175 Cal.App.4th

291, 295.) Accordingly, we find no reason to modify this condition to specifically

exclude the possession or use of a weapon in self-defense.




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                                     DISPOSITION

      We modify the supervision requirement regarding assessments to state that

Antoniette Godina must "participate and comply with any assessment program relating to

the dangers and harms of drug smuggling and drug trafficking if directed by the probation

officer." The judgment is modified as set forth in this opinion and otherwise affirmed.



                                                                           O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


McDONALD, J.




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