P. v. Assante
Filed 3/24/06 P. v. Assante CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H028607
Plaintiff and Respondent, (Santa Clara County
Superior Court
v. No. CC442422)
JESUS JUAREZ ASSANTE,
Defendant and Appellant.
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Pursuant to a negotiated disposition, the trial court found defendant Jesus Juarez Assante guilty of four counts of lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and further found that the crimes were committed against more than one victim (Pen. Code, §§ 667.61, subds. (b), (e), 1203.066, subd. (a)(7)).[1] Defendant was sentenced to 30 years to life and ordered to submit to an AIDS test pursuant to section 1202.1. Defendant appeals from the order requiring AIDS testing. He contends the record does not establish probable cause to believe that a bodily fluid capable of transmitting HIV was transferred from him to the victims. We agree and remand for further proceedings at the election of the prosecution.
I. Statement of Facts
Defendant began molesting Carla and her cousin, Daisy, when they were about six and seven years old. Defendant lived in a converted garage behind Carla's house and the molestations occurred in and around the garage. Typically, defendant molested the girls in front of each other. Defendant would tell Carla and Daisy they were playing doctor, and the girls would sit on defendant's lap, with their panties down and their legs straddling him. Defendant would then touch their vaginas with his hands, keeping his own pants on.
Defendant also showed Carla pornographic movies and made her touch his penis. Carla testified that defendant made her â€
