Filed 1/17/18




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                          G054483

        v.                                             (Super. Ct. No. 14NF1456)

MARIA INES PINEDA AREVALO,                             OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Robert
Alan Knox, Judge. Affirmed.
                  Marta I. Stanton, under appointment by the Court of Appeal, for Defendant
and Appellant.
                  Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Eric A. Swenson, Supervising Attorney General, Kristine Gutierrez
and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
              A jury convicted Maria Arevalo of possessing methamphetamine for sale
(Health & Saf. Code, § 11378). The trial court suspended execution of sentence and
granted three years formal probation on several conditions. On appeal, Arevalo contends
the probation condition requiring her to maintain a residence approved by her probation
officer is unconstitutionally overbroad and violates her right to travel and freedom of
association. She also requests that this court independently review the in camera hearing
of her Pitchess motion. We find her first contention lacks merit, and the Attorney
General agrees this court should review the confidential records. We have done so, and
we affirm the judgment.
                                          FACTS
              In 2014, Orange County Sheriff’s Department Investigator Ashra
Abdelmuti conducted a “controlled buy” between a confidential informant (CI) and
Arevalo. After the CI purchased methamphetamine from Arevalo, deputies obtained a
search warrant for Arevalo, her vehicle, and her apartment.
              Abdelmuti spoke to Arevalo at her mother’s house in Anaheim. After
learning the deputies intended to search her apartment, Arevalo gave them the keys.
Inside Arevalo’s apartment, deputies found 5.6 ounces of methamphetamine, two large
digital scales, a box of empty plastic baggies, a plastic sifter, and $1,116 in cash. The
methamphetamine had a street value between $5,314 and $7,086. Abdelmuti opined the
items seized indicated the methamphetamine was possessed for sale.
              Arevalo testified in her defense. She stated she was afraid of her ex-
boyfriend Daniel Jose Leon. Leon possessed two guns, and Arevalo once saw him hit a
friend in the head with a gun.
              Arevalo ended her relationship with Leon in the middle of 2013, but during
their relationship, she had borrowed $1,500 from him and had not repaid the loan. In
January 2014, Arevalo testified she was employed and dating someone new. Arevalo
testified Leon was jealous about her new relationship and angry that she had not repaid

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him the money she owed. Arevalo claimed Leon gave her the methamphetamine and
drug-related items detectives found in her apartment, and that he forced her to sell
methamphetamine as a way to repay the money she owed him. She did not want to take
the drugs but agreed to do so because she believed she and her family (including her then
five-year-old daughter) were in danger. Leon threatened Arevalo by putting a nine-
millimeter gun to her head. Leon was sometimes physically violent towards Arevalo, and
he said he would hurt her and her daughter if she reported anything to the police.
              Arevalo admitted she sold drugs to the CI. She drove her car to deliver the
drugs but she did not collect any money from the CI. Arevalo claimed the buyer wanted
to give the money directly to Leon. She explained the money found in her apartment was
not related to selling drugs, but was money she was saving “for [her] new visa.” She
admitted she did not ask her family for the money to repay Leon. She also never told her
family or the police about Leon’s threats.
              Deputies arrested Leon. During their search of his apartment, they found a
nine-millimeter gun and a bag of ammunition.
                                      DISCUSSION
I. Probation Condition
              Arevalo maintains the probation conditions requiring her to maintain a
residence approved by her probation officer are unconstitutionally overbroad and must be
stricken. The Attorney General maintains the condition is narrowly tailored to serve the
state’s interests in rehabilitation and reformation. We conclude the approval condition is
constitutionally valid.
              Generally, trial courts are given broad discretion in fashioning terms of
probation in order to foster the reformation and rehabilitation of the offender while
protecting public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Therefore,
we review the imposition of a particular condition of probation for abuse of that
discretion. “As with any exercise of discretion, the court violates this standard when it

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imposes a condition of probation that is arbitrary, capricious or exceeds the bounds of
reason under the circumstances. [Citation.]” (People v. Jungers (2005) 127 Cal.App.4th
698, 702.)
              However, we review constitutional challenges under a different standard.
Arevalo’s claim the probation term is unconstitutionally overbroad presents a question of
law, which we review de novo. (In re Sheena K. (2007) 40 Cal.4th 875, 888-889.) Not
all terms that require a defendant to give up a constitutional right are per se
unconstitutional. (People v. Mason (1971) 5 Cal.3d 759, 764-765, overruled on a
different point as stated in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) “If a
probation condition serves to rehabilitate and protect public safety, the condition may
‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not
entitled to the same degree of constitutional protection as other citizens.”’” (People v.
O’Neil (2008) 165 Cal.App.4th 1351, 1355.)
              A probation condition cannot be unconstitutionally overbroad. “A
restriction is unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional
rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state
interest in reformation and rehabilitation.’ [Citations.] The essential question in an
overbreadth challenge is the closeness of the fit between the legitimate purpose of the
restriction and the burden it imposes on the defendant’s constitutional rights—bearing in
mind, of course, that perfection in such matters is impossible, and that practical necessity
will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
              Although conditions requiring prior approval of a probationer’s residence
may affect the constitutional rights to travel and freedom of association (People v. Bauer
(1989) 211 Cal.App.3d 937, 944 (Bauer)), courts have the authority to do so if there is an
indication the probationer’s living situation contributed to the crime or would contribute
to future criminality. (People v. Soto (2016) 245 Cal.App.4th 1219, 1228.) A trial court
may impose probation conditions that place limits on constitutional rights if they are

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reasonably necessary to meet the twin goals of rehabilitation of the defendant and
protection of the public. (Bauer, supra, 211 Cal.App.3d at pp. 940-941.)
              Arevalo relies upon the Bauer case, in which the appellate court struck a
residence approval condition. (Bauer, supra, 211 Cal.App.3d at p. 945.) A jury found
defendant guilty of false imprisonment and simple assault. (Id. at p. 940.) The trial court
imposed the restriction to prevent defendant from living with his parents because they
were overprotective. (Id. at p. 944.) Nothing in that record suggested defendant’s home
life contributed to the crimes or that his residence was reasonably related to future
criminality. (Ibid.) Defendant had no prior criminal history and the restriction was not
proposed by the probation department. (Id. at p. 943.) While noting probation conditions
requiring approval before traveling or moving can be appropriate under certain
circumstances, the appellate court determined the restriction in this case impinged on
defendant’s constitutional right to travel and freedom of association. “Rather than being
narrowly tailored to interfere as little as possible with these important rights, the
restriction is extremely broad. The condition gives the probation officer the discretionary
power, for example, to forbid [defendant] from living with or near his parents—that is,
the power to banish him. It has frequently been held that a sentencing court does not
have this power. [Citations.]” (Id. at p. 944-945.)
              Here, there is nothing in the record to suggest the approval condition was
designed to banish Arevalo from a particular neighborhood or stop her from living where
she desires. (See People v. Stapleton (2017) 9 Cal.App.5th 989, 995 (Stapleton)
[distinguishing Bauer because “residence condition imposed here is not a wolf in sheep’s
clothing; it is not designed to banish defendant”].) Moreover, the legal landscape has
changed since publication of the Bauer opinion. Our Supreme Court stated in People v.
Olguin (2008) 45 Cal.4th 375 (Olguin), “A probation condition should be given ‘the
meaning that would appear to a reasonable, objective reader.’ [Citation.]” (Id. at p. 382.)
The condition here presumes a probation officer will not withhold approval for irrational

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or capricious reasons (Id. at p. 383) and will appreciate there are limited housing options
in Orange County. The approval condition allows the probation officer to supervise
Arevalo’s residence, because the nature of her crime suggests a need for oversight. The
probation officer can limit her exposure to sources of temptation for future criminality by,
for example, not approving residences in close proximity to other drug dealers. Living in
an area having easy access to drug suppliers could negatively affect her rehabilitation.
And, if the probation officer disapproves of a particular residence for any arbitrary
reason, Arevalo may file a petition for modification of her probation condition. (Pen.
Code, §§ 1203.2, subd. (b)(1), 1203.3, subd. (a); see People v. Keele (1986) 178
Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s
actions].)
              We are also mindful of the legal tenet, “[P]robation is a privilege and not a
right, and adult probationers, in preference to incarceration, may validly consent to
limitations upon their constitutional rights. [Citation.] For example, probationers may
agree to warrantless search conditions or restrictions on their constitutional right of
association. [Citations.]” (Stapleton, supra, 9 Cal.App.5th at p. 994.) “If a defendant
believes the conditions of probation are more onerous than the potential sentence, he or
she may refuse probation and choose to serve the sentence. [Citations.]” (Olguin, supra,
45 Cal.4th at p. 379.) For all of the above reasons, we conclude the residence approval
condition is constitutionally valid.
II. Review of Record
              During discovery, Arevalo requested and was granted review of
confidential police personnel files. The court provided the witnesses’ names, addresses,
and contact information regarding one incident. Arevalo requests we independently
review the Pitchess hearing conducted by the trial court. The Attorney General agrees
we may review the sealed transcript.



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              We can independently examine the record made by the trial court “to
determine whether the trial court abused its discretion in denying a defendant’s motion
for disclosure of police personnel records.” (People v. Prince (2007) 40 Cal.4th 1179,
1285.) We have reviewed the reporter’s transcript and conclude the trial court complied
with the required Pitchess procedures. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.)
The custodian of records was present and placed under oath. The court independently
reviewed the relevant personnel file. The proceedings were stenographically recorded.
(Id. p. 1229.) Our independent review finds the trial court did not abuse its discretion in
determining there was discoverable information with respect to only one incident. We
conclude the remaining records in the personnel file were not related to false reports or
dishonesty and were properly withheld from production.
                                      DISPOSITION
              The judgment is affirmed.




                                                  O’LEARY, P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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