Error and/or relief
The defendant was convicted of multiple counts of sexual assault on a child. We agree the trial court did not make the necessary probable cause finding for the defendant to undergo AIDS testing absent evidence of transfer of bodily fluids. Remanded for the court to hold a hearing to see if there is evidence warranting the order.
First Holding:
Section 1202.1 requires that a court order AIDS testing if the defendant is convicted of specified sex offenses 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.
Authority:
PEN 1202.1(e)(5)(A)
Second Holding:
There was no evidence presented to the sentencing court that such a transfer occurred. But 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. On remand, the court should conduct further proceedings to determine whether probable cause exists to order AIDS testing under section 1202.1(e)(5)(A).
Authority:
People v. Butler (2003) 31 Cal.4th 1119, 1129