Error and/or relief
The evidence was insufficient to support an order requiring the defendant to submit to HIV/AIDS testing.
First Holding:
The trial court erred in ordering the defendant to submit to a blood test for HIV/AIDS pursuant to section 1202.1 because there was insufficient evidence of probable cause to require the testing. The conduct was contact by the defendant’s hands only, but there was no indication in the record that the touching would transmit bodily fluids.
Authority:
PEN 1202.1
Second Holding:
Defendant did not object below to the HIV/AIDS testing order. In general, absent an objection in the trial court, a defendant forfeits appeal of any deficiency in the statutorily required finding supporting an HIV testing order pursuant to section 1202.1. However, as the People point out, because mandatory HIV/AIDS testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection.
Authority:
People v. Stowell (2003) 31 Cal.4th 1107, 1117,
People v. Butler (2003) 31 Cal.4th 1119, 1123
Third Holding:
Section 1202.1 requires the trial court to order every person who is convicted of a sexual offense listed in subdivision (e) to submit to a blood test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS).
The term “sexual offense” includes lewd or lascivious conduct with a child in violation of Section 288, but the statute provides that testing shall be ordered only if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. The statute directs a court ordering such testing to note its finding on the court docket and minute order if one is prepared.
Authority:
PEN 1202.1
Fourth Holding:
A remand is warranted. Section 1202.1 is part of a broader statutory scheme of health and safety legislation intended to combat the further spread of HIV infection and promote prompt medical treatment for those already infected. Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. It would be unfair to both the victim and the public to permit evasion of the legislative directive if evidence exists to support a testing order.
Accordingly, we will vacate the HIV/AIDS testing order but remand the matter to permit a further hearing on the issue if the prosecution so requests.
Authority:
People v. Butler (2003) 31 Cal.4th 1119, 1128-1129