Filed 5/24/17 P. v. Haggard CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LOAL HAGGARD,

Defendant and Appellant.

F071691

(Super. Ct. No. VCF233199)


OPINION

APPEAL from an order of the Superior Court of Tulare County. Joseph A. Kalashian, Judge.
Gregory Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

In 2010, Loal Haggard was convicted of five violations of Penal Code section 288, lewd act on a child, and the trial court ordered him to submit to blood testing for HIV antibodies pursuant to section 1202.1. This order was never transmitted to the correctional authorities, however, which brought the problem to the court’s attention in 2015. The court also failed to note a finding of probable cause that was required by the statute. The court held a hearing and again ordered Haggard to submit to the testing, this time noting its probable cause finding.
Haggard appeals from the 2015 order. He argues that the trial court had no jurisdiction to revisit the issue in 2015 and the order violated his rights under the Fourth, Fifth, and Eighth Amendments, as well as his constitutional right to privacy. Haggard’s arguments lack merit and we will affirm the order.
Haggard filed a writ petition around the same time as he filed this appeal, apparently as a precaution in case the order was not appealable. The issues raised in the writ petition are the same as in the appeal. The People do not claim the order is not appealable. In a separate order, we will deny the writ petition as moot in light of our disposition of the appeal.
FACTS AND PROCEDURAL HISTORY
On November 18, 2010, Haggard pleaded no contest to five counts of committing a lewd act against a child under the age of 14 (§ 288, subd. (a)). Four of the counts included allegations under section 1203.066, subdivision (a)(8), that Haggard engaged in substantial sexual conduct with a child under 14. Haggard admitted these allegations were true. At the change of plea hearing, the court recited the specific nature of the charges, all of which involved the same victim: (1) Haggard touched the victim’s vagina; (2) he touched her vagina with his mouth; (3) he touched her vagina with his mouth on an additional occasion; (4) he touched her vagina with a glass sex toy; and (5) he put her mouth on his penis. The court found that factual bases for the charges were presented at the preliminary hearing. The abuse began in 1997, when the victim was six years old.
The minutes from the hearing on November 18, 2010, included the following notation: “Order for HIV testing signed in open court.” That order is included in the appellate record. File-stamped November 18, 2010, it stated: “It is hereby ordered that the above named defendant submit to a blood draw for the purpose of testing defendant for HIV pursuant to Penal Code § 1202.1.” The order further stated that Haggard was to be tested while in custody at the county jail, before being transported to the state prison. The court also imposed the following additional orders: Haggard was to pay restitution, a restitution fine, a parole revocation fine and certain fees; he was to register as a sex offender, have no contact with the victim, and possess no firearms or ammunition; and he was to provide buccal swab samples, thumb and palm prints, and blood and other biological samples as required for law enforcement identification analysis under section 296, subdivision (a). These orders were reflected in the minutes from the sentencing hearing and the transcript of the court’s oral remarks at that hearing. Some of them were shown in the abstract of judgment. But no portion of the record of the proceedings of December 16, 2010, made reference to the HIV testing order that had been issued the month before. On the abstract of judgment form, in a section titled “TESTING,” there was a box labeled “AIDS per PC 1202.1.” This box was not checked.
The appellate record does not show precisely how it came to the trial court’s attention in 2015 that the HIV testing order had not been carried out. On May 15, 2015, the court issued a minute order stating that a prior minute order—apparently dated April 24, 2015—was amended to say “[t]he order to have Defendant submit to blood test pursuant to PC 1202.1 is withdrawn.” Also on May 15, 2015, the court issued an order setting a hearing “to resolve the testing issue pursuant to PC 1202.1.” The hearing was to be held on May 27, 2015. These two orders appear to mean that the trial court had been told in 2015 that the testing still needed to be done and had issued an order to do it, but then a hearing was requested, so the order was withdrawn pending the hearing.
On May 18, 2015, Haggard filed an “Opposition to the Proposed Order to Obtain and Test Defendant’s Blood for HIV/AIDS Virus.” (Boldface and some capitalization omitted.) In this opposition, Haggard stated: “Upon information and belief, in 2015, after Defendant spent five years in state prison, officials at the Richard J. Donovan Correctional Facility notified this Court that an order for HIV testing was not included in the abstract of judgment and minute order for December 16, 2010.”
Haggard argued to the trial court that an order for HIV testing was not and could not properly be made under section 1202.1 in this case. That section provides that testing for HIV antibodies is automatically required when a defendant is convicted of certain crimes. (§ 1202.1, subds. (a), (e)(1)-(5).) For other offenses, including violations of section 288, the testing is required only when “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.” (§ 1202.1, subd. (e)(6)(A).) Further, the court “shall note its finding [of probable cause] on the court docket and minute order if one is prepared.” (§ 1202.1, subd. (e)(6)(B).) The court had not noted a probable cause finding on the docket or in a minute order in 2010. It could not make such a finding now, Haggard argued, because there was no evidence that his blood or semen was transferred to the victim; and saliva is not a bodily fluid capable of transmitting HIV because it is not included in a regulatory list of such fluids. (Cal. Code Regs., tit. 22, § 41102, subd. (a).) Haggard also argued that subjecting him to HIV testing would be unconstitutional for several reasons.
At the hearing on May 27, 2015, the trial court rejected Haggard’s arguments. It made the probable cause finding on the record and issued a new minute order for testing. The order was stayed for 30 days. Haggard filed a notice of appeal the same day.
To challenge the new order, the public defender’s office filed a petition for a writ of mandate or prohibition on Haggard’s behalf in this court on July 8, 2015. A stay request was filed at the same time.
This court granted the stay request. Our order included the following remark: “Upon this court’s own motion, judicial notice is taken of Volume 1, page 77, in the clerk’s transcript in People v. Haggard, case No. F071691.” That page is the trial court’s order for HIV testing issued on November 18, 2010.
On September 24, 2015, counsel appointed by this court filed an opening brief in this appeal on Haggard’s behalf. The arguments raised on appeal are identical to those in the writ petition.
On September 24, 2015, and January 12, 2016, Haggard filed requests for judicial notice of the writ petition and other materials filed in the writ proceeding. We deferred ruling on these requests. The requests are now granted.
Haggard also filed a request to consolidate the writ proceeding and the appeal, which we denied. Since we will be denying the writ petition as moot, consolidation remains unnecessary.
DISCUSSION
I. Jurisdiction to issue the new testing order
Haggard argues that the testing order issued on May 27, 2015, constituted a modification of his sentence and therefore the trial court lacked jurisdiction to issue it. We conclude, however, that the May 27, 2015 order merely reaffirmed the already-valid testing order of November 18, 2010, so there was no modification and no jurisdictional problem arises. Therefore, the 2015 order is valid as well.
Haggard relies on the rule that a trial court generally lacks jurisdiction to increase a sentence after execution of the sentence has begun. (People v. Howard (1997) 16 Cal.4th 1081, 1089.) He concedes that the court can correct a clerical error at any time, but he says what happened in this case was a judicial error. “[A] judicial error is one that is made in rendering the judgment,” and the court’s power to correct it is more limited. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1205.) Haggard also concedes that a court can correct an unauthorized sentence at any time (People v. Scott (1994) 9 Cal.4th 331, 354), and cites a case in which it was held that a failure to order HIV testing could be corrected after the defendant started serving his sentence because the testing was mandatory for every violation of the Penal Code section there at issue, i.e., section 261.5. (People v. Barriga (1997) 54 Cal.App.4th 67, 69-70.) By contrast, where the violation is of section 288, as in this case, the testing is not mandatory, but is required only if the court finds probable cause to believe that a bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. (§ 1202.1, subd. (e)(6)(A).) Haggard says that for this reason, there was no unauthorized sentence and therefore no jurisdiction to make a correction.
The People argue that the November 18, 2010 order was and remains valid. They say the only problem is the court’s failure to note its probable cause finding. This, they say, was a clerical error correctable at any time, and that the 2015 order merely corrected it.
In our view, Haggard has not identified any error that needed correcting in the court’s action in November 2010. The failure to note a probable cause finding was error, but, under People v. Stowell (2003) 31 Cal.4th 1107 (Stowell), that error was forfeited long ago.
In Stowell, our Supreme Court confronted a situation similar to the one in this case. Stowell was convicted of violating sections 288 and 289, offenses requiring HIV testing if, pursuant to section 1201.2, subdivision (e)(6)(A), the trial court finds probable cause of transference of bodily fluids capable of transmitting HIV. The trial court ordered HIV testing, but it did not state its probable cause finding on the record or include a note of the finding in its docket or minutes. (Stowell, supra, 31 Cal.4th at p. 1111.) The Supreme Court rejected Stowell’s argument that the testing order must be reversed because of this failure. It held that he forfeited the issue by failing to make any objection based on it in the trial court. (Id. at p. 1113.)
In explaining this conclusion, the court began by observing that HIV testing ordered under section 1202.1 is not punishment and its imposition is not a sentencing choice. Accordingly, general forfeiture principles apply, not forfeiture principles derived from cases on sentencing. (Stowell, supra, 31 Cal.4th at pp. 1113-1114.) Under general forfeiture principles, a claim of error is forfeited for purposes of appeal if it could have been, but was not, raised by some suitable method in a timely manner in the trial court. A claim that the court failed to note a probable cause finding as required by section 1202.1, subdivision (e)(6)(A), is a claim that must be preserved in this way. (Stowell, supra, at p. 1114.) Stowell did not object in the trial court, so his claim was forfeited. (Id. at pp. 1110-1111.) Without a timely objection, the court presumed the trial court made the necessary probable cause finding even though it did not make a note of it in the record. (Id. at pp. 1114-1115.)
The Supreme Court was careful to point out that forfeiture principles apply even though the HIV testing order ordinarily is issued not during the sentencing hearing in the defendant’s presence, but afterward when the parties and counsel have departed. The court stated:
“With respect to how a defendant should object to the absence of a probable cause notation, we note that unlike most situations implicating forfeiture, the relevant act usually does not take place in the defendant’s presence. Rather, the court makes the notation in the docket and minute order after the sentencing hearing. Thus, to determine whether the court has complied with the notation requirement the defendant will generally have to check the docket entry and minute order after they have been prepared. If the required notation is missing, the defendant must then submit an objection, presumably, although not necessarily, in writing. We suggest this procedure only as guidance in preserving the notation issue. Defendants remain free to register their objections in any reasonable and timely manner that brings the omission to the trial court’s attention.” (Stowell, supra, 31 Cal.4th at p. 1117, fn. 5.)
Under Stowell, to preserve his claim of error, Haggard would have had to make an objection in the trial court in 2010, and, if the objection had been overruled, would have had to present the claim in an appeal from the 2010 judgment. As a matter arising after the change of plea and not pertaining to its validity, a claim that the HIV testing was improperly ordered would have been cognizable on appeal, even though the judgment was based on a plea of no contest. (See People v. Buttram (2003) 30 Cal.4th 773, 780-782.) He did neither.
Haggard contends that Stowell is inapplicable for several reasons: (1) There, an HIV testing order was recommended in the probation report (Stowell, supra, 31 Cal.4th at p. 1111), but here the probation report does not include this recommendation and the appellate record does not otherwise show what caused the trial court to think of ordering the testing (other than the fact that it was appropriate under the law); (2) here, there is no indication that “the order was actually signed in the presence of the defendant or his counsel”; and (3) here the record does not show “that defense counsel was ever given a reasonable chance to object to the [probable cause] finding or the [2010] order itself prior to 2015.”
All these attempts to distinguish Stowell are meritless. First, it does not matter whether the HIV testing issue came to the court’s attention via the probation report or in some other way. Under section 1202.1, the court had to decide whether there was probable cause and, if so, to order testing. This was regardless of who, if anyone, told the court about it.
Second, Stowell makes it clear that it also does not matter whether the order was signed in the presence of Haggard or his counsel. In fact, the Stowell court understood that HIV testing orders under section 1202.1 normally will not be signed in the presence of the parties or counsel.
Third, Stowell makes it clear that defense counsel does have a reasonable chance to object even if the order is signed outside the presence of the parties and counsel: Counsel is expected to check the docket and minutes and make an objection if the order appears but the probable cause notation is missing. In Haggard’s writ proceedings, of which we have taken judicial notice, an attorney from the public defender’s office submitted a declaration stating that minutes reflecting the court’s HIV testing order of November 18, 2010, were received by that office on November 30, 2010. This was the document in which it was stated that an HIV testing order was signed in open court. Receipt of this document in the office provided counsel an opportunity to check the docket and minutes for a notation of a probable cause finding and object if it was omitted.
Apart from the forfeited error of not noting the probable cause finding, there was no error in the 2010 proceedings, not even a clerical error in the recording of the order. The court’s minutes reflected the issuance of the order and the order was signed and filed. It was not noted on the abstract of judgment, but the abstract of judgment was associated with Haggard’s commitment to prison. The court intended the blood draw for the HIV test to take place at the county jail, before Haggard was transported to prison. The failure of Haggard to be tested in 2010 is merely an instance of an order inadvertently not being carried out at the intended time.
Haggard argues that the 2010 order was erroneous because the record does not contain evidence sufficient to support a finding of probable cause. Haggard’s plea of no contest to a charge of placing his penis in the victim’s mouth, however, by itself supplies probable cause to believe a fluid capable of transmitting HIV—semen—was transferred from him to the victim. Haggard appears to suggest that probable cause was not established in the absence of evidence that he ejaculated, but he cites no authority for this notion and we do not believe it is correct. Probable cause need not be supported by evidence sufficient to show a proposition is true even under the preponderance standard. (Illinois v. Gates (1983) 462 U.S. 213, 235.) The term refers to “‘circumstances which warrant suspicion’” or “‘only the probability, and not a prima facie showing’” of the fact in question. (Ibid.) Haggard’s plea alone was enough under this standard.
From the lack of any cognizable error needing correction in the 2010 order, it follows that Haggard is mistaken in claiming the trial court committed jurisdictional error by attempting to correct an error by means of the 2015 order. Haggard has cited no authority tending to show that a court cannot see to it that a valid order, previously overlooked, will now be attended to. That is all that happened in 2015 in this case. The 2015 order did not modify the 2010 judgment because no modification was necessary.
In sum, the only error related to the November 2010 order was forfeited back in 2010, and the 2015 order served merely to clarify for the correctional authorities the facts that the testing had already been authorized and still needed to be done. The 2015 order added an express finding of probable cause, but it was not necessary to add this, because, according to Stowell, the 2010 order was backed by a presumption that the necessary finding was made. Consequently, so far as the facts and proceedings presented to us in this appeal and the associated writ proceedings disclose, there is no reason why the testing could not have been carried out in 2015 based on the 2010 order, if that order had been presented to the appropriate authorities at that time. In other words, in addition to being free of error, the 2015 order was not even necessary to effectuate the previously overlooked order of 2010.
II. Constitutional arguments
Haggard makes the following constitutional arguments regarding the order to submit to the testing of his blood for HIV antibodies. First, the order authorizes an unreasonable search or seizure in violation of the Fourth Amendment. Second, both the blood draw and the disclosure of test results to the victim and authorities (see § 1202.1, subds. (b)-(d)) will violate Haggard’s constitutional right to privacy as recognized by the United States Supreme Court in such cases as Washington v. Harper (1990) 494 U.S. 210, 220-223 [applying substantive due process analysis to determine whether invasion of inmate’s bodily integrity via forced medication was constitutional]. Next, compelled testing and disclosure of test results to authorities violates Haggard’s Fifth Amendment privilege against self-incrimination. Finally, compelled testing would be cruel and unusual punishment in violation of the Eighth Amendment.
Claims closely related to each of these have previously been rejected by courts. (Love v. Superior Court (1990) 226 Cal.App.3d 736, 742-746 [statute requiring HIV testing for those convicted of prostitution did not violate Fourth Amendment because it served a special need]; Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 1282-1283 [order for pretrial HIV testing of defendant charged with biting police officer did not violate defendant’s right of privacy under state constitution]; Schmerber v. California (1966) 384 U.S. 757, 761-765 [Fifth Amendment privilege against self-incrimination did not bar compelled blood testing for driver suspected of driving under the influence because blood is physical evidence and testing it did not compel driver to incriminate himself]; In re Alva (2004) 33 Cal.4th 254, 282, 290-291 [sex offender registration requirement was not cruel or unusual punishment under state or federal constitutions because it was not a form of punishment].) We need not go into the authorities on these topics in detail, however, because Haggard forfeited all these claims when he failed to raise them in the trial court in 2010, just as he forfeited his claim regarding the failure to note the probable cause finding, as described above. (In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [constitutional rights can be forfeited by failure to make a timely objection, just as other rights can].) He lost his opportunity to press these claims when he failed to assert them in the trial court in 2010, and appeal from the 2010 judgment.
To be sure, Haggard says his constitutional claims are supported by the delay between the time of his conviction and the 2015 order. This arguably means the claims are properly before us now even though they were not preserved in 2010 because they are now based in part on a consideration, the delay, that could not have been raised then, and because they were raised before the trial court in 2015. To meet this argument, we will consider the constitutional claims, but only to the extent that this delay might support them.
We conclude it does not support them. Haggard maintains that any countervailing interest that might have justified the invasion of his personal interests has disappeared over time. But the victim still has an interest in knowing whether Haggard could have exposed her. Haggard suggests she could get tested herself, and if she is negative, she will know he did not expose her, since the HIV antibodies would long ago have become present in her blood if he had done so. This reasoning is mistaken. If the victim is tested and is positive, she would have a legitimate interest in knowing whether Haggard can or cannot be ruled out as source of the infection. She could, of course, test negative, and then she might not need to know Haggard’s status, but she is under no obligation to be tested first. She also is under no obligation to reveal, for the convenience of Haggard, the results of any testing she might undergo. In sum, there is nothing the victim is obligated to do to make sure testing Haggard will be useful to her before he is compelled to be tested. Given the circumstances—i.e., she is the victim of his sex crime and there is probable cause to believe he transferred fluids to her capable of transmitting HIV—the possibility that it could be useful to her is sufficient.
With this conclusion in mind, we will address individually Haggard’s several constitutional claims so far as the delay between 2010 and 2015 might affect them. First, if the testing would not have been an unreasonable search or seizure in 2010, it had not become one by 2015. At least one of the interests that supports the testing—the victim’s interest in knowing the results—retains its force.
Second, the passage of time has not caused any determinative alteration in the situation with respect to Haggard’s privacy interest. The victim’s interest in knowing Haggard’s HIV status has not so diminished that Haggard’s privacy interest now prevails over it.
Third, Haggard has not explained how testing his blood for HIV antibodies and disclosing the results ever had any potential to incriminate him. HIV infection is not a crime and we do not see how the test results would tend to connect Haggard with any crime. As far as the crimes at issue in this case are concerned, Haggard was convicted of them before the 2010 order issued. And even if the testing had an incriminatory tendency, that tendency has not been affected by the passage of time.
Last, since HIV testing is not punishment, the lapse of five years between the two orders could not result in the imposition of it becoming cruel and unusual punishment. Even if it were punishment, Haggard is mistaken in his view that it is cruel and unusual because it lacks a legitimate purpose. It has a legitimate purpose for the victim and the passage of time has not eliminated that purpose, as we have said.
DISPOSITION
The trial court’s testing order, dated May 27, 2015, is affirmed. The requests for judicial notice filed on September 24, 2015, and January 12, 2016, are granted.

________________________
SMITH, J.

WE CONCUR:


____________________
GOMES, Acting P.J.


____________________
MEEHAN, J.