P. v. Hernandez
Filed 7/25/07 P. v. Hernandez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CRUZ HERNANDEZ, Defendant and Appellant. | H030878 (Santa Clara County Super.Ct.No. CC630017) |
Defendant Antonio Cruz Hernandez pleaded no contest to one count of continuous sexual abuse of a child under the age of 14 (Pen. Code, 288.5, subd. (a)).[1] The court sentenced defendant to a total prison term of 12 years, based upon a midterm sentence for the count.
On appeal, defendant challenges the courts order that defendant submit to testing for the HIV (human immunodeficiency virus), pursuant to section 1202.1. We hold that there was insufficient evidence to support the courts implied finding, required under section 1202.1, subdivision (e)(6)(A), that there was probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV ha[d] been transferred from the defendant to the victim. Consistently with the Supreme Courts holding in People v. Butler (2003) 31 Cal.4th 1119, 1129 (Butler), we will reverse the judgment, vacate the testing order, and remand the matter for the limited purpose of permitting a further hearing on the issue of HIV testing at the election of the prosecution.
FACTS
This appeal concerns principally the legal question of whether the court erred in ordering defendant to submit to mandatory HIV testing, pursuant to section 1202.1. We therefore present a short summary of the facts as taken from the probation report.
On May 4, 2006, the San Jose Police Department responded to a local elementary school on a report of child molestation. The police were informed by a Child Protective Services social worker, Maria Cristales, that she had interviewed the seven-year-old victim earlier that day. The child told Cristales that while she lived in Mexico (commencing when she was four), her step-grandfather, defendant, repeatedly kissed her and digitally penetrated her vagina on a daily basis. The child also told Cristales that defendant had molested her approximately five times since they had moved to the United States. On the evening of May 2, 2006, defendant went into the childs room, took off her underwear, and put his fingers in her vagina while she lay in bed. He then kissed her on the mouth.
During a follow-up interview of the child on May 10, 2006, she gave a similar report of abuse. The probation report noted: She reported the defendant had kissed on her mouth and digitally penetrated her vagina on numerous occasions while she resided in Mexico with him and while residing in the United States with him.
PROCEDURAL BACKGROUND
Defendant was charged on May 2, 2006, with one count of continuous sexual abuse of a child under the age of 14 ( 288.5, subd. (a)).[2] The conduct was alleged to have occurred during a period of not less than three months between October 1, 2005, and May 2, 2006.
Defendant pleaded no contest to the one count. At the time of the plea, the court advised defendant that he would be required to submit to AIDS testing. On October 10, 2006, the court sentenced defendant to the midterm of 12 years in prison. The court also ordered that defendant undergo testing for the HIV virus pursuant to section 1202.1.[3] Defendant filed a timely notice of appeal from the judgment.
DISCUSSION
I. Issue On Appeal
Defendant asserts that the court committed sentencing error by ordering defendant to undergo an HIV test pursuant to section 1202.1. He argues that there was insufficient evidence to support this order.
II. The Order Requiring HIV Testing
There is a general statutory prohibition against involuntary testing for HIV. (See Health & Saf. Code, 120990.)[4] Involuntary testing is thus strictly limited by statute. [Citations.] (People v. Guardado (1995) 40 Cal.App.4th 757, 763.) Section 1202.1, subdivision (a) requires that the court order HIV testing of persons convicted of certain sexual offenses enumerated in subdivision (e) of the statute.[5] In the case of the conviction for an offense of continuous sexual abuse of a child ( 288.5), the court shall order HIV testing 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. ( 1202.1, subd. (e)(6)(A).)[6] The statute directs a court ordering such testing to note its finding on the court docket and minute order if one is prepared. ( 1202.1, subd. (e)(6)(B).)
We first acknowledge that defense counsel below did not object to the order for HIV testing. Defendant argues that he did not forfeit the right to challenge the order because it constituted an unauthorized sentence, a matter which can be challenged on appeal even in the absence of an objection at trial. The Attorney General concedes that forfeiture principles do not apply to a claim that there was insufficient evidence to support a finding of probable cause to order HIV testing under section 1202.1. Defendant did not forfeit his sufficiency-of-the-evidence challenge. The Supreme Court has held: [S]ince involuntary HIV 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. Without evidentiary support the order is invalid. (Butler, supra, 31 Cal .4th at p. 1123.)[7]
Although the court did not specifically articulate its reasons for the HIV testing order, we will presume an implied finding by the court of probable cause. (People v. Stowell, supra, 31 Cal.4th at pp. 1114-1116; Butler, supra, 31 Cal .4th at p. 1127.) The standard of probable cause here is an objective one: Probable cause is an objective legal standardin this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. (Butler, supra, at p. 1127.) Here, we conclude that there is insufficient evidence to support the implied finding of probable cause.
There were two types of conduct that the prosecution might have argued as supportive of a finding of probable cause for HIV testing. First, the child complained that defendant digitally penetrated her vagina on a number of occasions. Since there is no suggestion that any bodily fluid at all was transmitted by these actions, this is not a fact that would cause a reasonable person to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV ha[d] been transferred from the defendant to the victim. (Butler, supra, 31 Cal.4th at p. 1127.) Second, the child complained that defendant kissed her on the mouth on the occasions that he molested her. There is nothing in the record to indicate one way or the other that the kissing was open-mouthed kissing (or French kissing) that would be likely to result in the transmission of a bodily fluid (saliva) from defendant to the child. We will not affirm an HIV testing order on the basis of mere speculation that there might have been evidence supporting an implied finding of probable cause. (Butler, supra, at p. 1127: [E]ven if the prosecution could have established probable cause, in the absence of sufficient evidence in the record, the order is fatally compromised; People v. Guardado, supra, 40 Cal.App.4th at p. 765 [good cause not found where there was only prosecutors unsupported assertion that there may have been acts other than those shown by the trial evidence which involved the exchange of bodily fluids].)
But even if we were to conclude that a reasonable person could have formed a strong belief from this record that blood, semen or other fluids had been transferred from defendant to the victimbased upon the assertion that the kissing of a nonspecific nature resulted in the transfer of salivawe would nonetheless find an insufficient basis for probable cause. Section 1202.1, subdivision (e)(6)(A) requires more than evidence of the transfer of a bodily fluid from the defendant to the victimthere must be evidence of a bodily fluid capable of transmitting HIV. (Italics added.) Although the Attorney General argues to the contrary, we do not believe that the recordassuming that it is reasonable to conclude that defendant transferred saliva to the child at allsupports the conclusion that defendant transferred bodily fluid capable of transmitting HIV as required by the statute.
In reaching this conclusion, we find certain information promulgated by an authoritative medical source, the National Center for Disease Control and Prevention (CDC), persuasive.[8] The CDC has stated in a fact sheet concerning the transmission of HIV: HIV is spread by sexual contact with an infected person, by sharing needles and/or syringes (primarily for drug injection) with someone who is infected, or, less commonly (and now very rarely in countries where blood is screened for HIV antibodies), through transfusions of infected blood or blood clotting factors. Babies born to HIV-infected women may become infected before or during birth or through breast-feeding after birth. [] . . . [] All reported cases suggesting new or potentially unknown routes of transmission are thoroughly investigated by state and local health departments with the assistance, guidance, and laboratory support from CDC. No additional routes of transmission have been recorded, despite a national sentinel system designed to detect just such an occurrence. (CDC Fact Sheet, HIV and Its Transmission(July 1999), p. 1 at
The Attorney General cites Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255 in support of its contention that there was probable cause for the courts issuance here of the HIV testing order. We do not find this authority persuasive. In Johnetta J., the petitioner sought a writ of prohibition against the enforcement of an order that she submit to a blood test after she bit a sheriffs deputy during a dependency proceeding. The blood test was found to have been authorized pursuant to Proposition 96, originally codified as Health and Safety Code section 199.95 et seq.[10] (Johnetta J., supra, at p. 1261.) There, the specific statute authorized testing for HIV where a person was charged by criminal complaint with having interfered with the official duties of a peace officer . . . by biting . . . or transferring blood or other bodily fluids on, upon, or through the skin or membranes of a peace officer [] . . . [] . . . [and] the court finds that probable cause exists to believe that a possible transfer of blood, saliva, semen, or other bodily fluid took place between the defendant . . . and the peace officer . . . . (Former Health & Saf. Code, 199.97, now Health & Saf. Code, 121060 [recodified without change].)[11] Thus, the HIV testing that was ordered in Johnetta J. was authorized under a statutory standard very different from the one at issue here. In contrast to section 1202.1 (applicable here), former Health and Safety Code section 199.97 did not require a finding that there was good cause to believe that the bodily fluids (i.e., saliva) that were transferred from the defendant to the victim were of a type capable of communicating HIV; the law only required a finding that there had been a possible transfer of bodily fluid. Johnetta J. does not stand for the proposition that the court must order HIV testing under section 1202.2 upon the mere showing that there is probable cause to believe that saliva was transferred from the defendant to the victim.
Similarly, People v. Hall (2002) 101 Cal.App.4th 1009, cited by the Attorney General, does not compel affirmance of the HIV testing order here. In Hall, the court ordered HIV testing pursuant to section 1202.1, which the appellate court held was an erroneous designation. (Hall, supra, at pp. 1017, 1024-1025.) But the appellate court upheld the testing order after ordering that the abstract of judgment be amended to reflect that the HIV testing order was pursuant to Health and Safety Code sections 121050 and 121060. (Hall, supra, at p. 1025.) The appellate court found a sufficient factual basis for upholding the testing order under these statutes, based upon the following: (1) During a criminal trial, the defendant attacked a deputy district attorney; (2) the defendant was then grabbed around the neck by the prosecutions chief investigating officer; (3) two bailiffs also attempted to restrain the defendant; (4) the investigating officer and one of the bailiffs suffered abrasions; (5) throughout the struggle, the defendant was sweating profusely; (6) the court concluded that the defendant, in the ensuing melee, had interfered with the official duties of a peace officer; and (7) it was very possible that the defendants sweat came into contact with the investigators facial abrasion. (Id. at pp. 1014, 1019.) Thus, in Hallas was the case in Johnetta J. under former Health and Safety Code section 199.97 (the predecessor to the statute at issue in Hall)the HIV testing order was upheld under a different standard, namely, whether there was a possible transfer of bodily fluids from the defendant to a peace officer.
Finally, People v. Caird (1998) 63 Cal.App.4th 578, cited by the Attorney General, is distinguishable. The defendant in Caird was convicted of two counts of lewd acts upon a child ( 288, subd. (a)), and one count of a forcible lewd act upon a child ( 288, subd. (b)). (Caird, supra, at p. 581.) The appellate court upheld an HIV testing order pursuant to section 1202.1, based upon testimony of one of the victims that the defendant had gotten on top of her, had his penis between her thighs, and repeatedly tried to penetrate her. (Caird, supra, at p. 590.) The evidentiary showing here is very different, and significantly more meager, than the facts that supported the HIV testing order in Caird.
Since we have concluded that the court erred in entering the order requiring HIV testing under section 1202.1 because of the absence of a factual basis for an implied finding of probable cause, the remaining question is the appropriate remedy. Our high court has held that, given important policy considerations, it is improper to simply strike an HIV order under the statute without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. . . . Given the serious health consequences of HIV infection, 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, . . . it is appropriate to remand the matter for further proceedings at the election of the prosecution. [Citation.] (Butler, supra, 31 Cal.4th at p. 1129.)
DISPOSITION
The judgment is reversed and remanded for the sole purpose of conducting further proceedings at the election of the prosecution to determine if there is sufficient evidence to support an order requiring HIV testing pursuant to section 1202.1.
Duffy, J.
WE CONCUR:
Mihara, Acting P.J.
McAdams, J.
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[1] All further statutory references are to the Penal Code unless otherwise stated.
[2] Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. ( 288.5, subd. (a).)
[3]The record in its entirety on this issue at the sentencing hearing was the judges statement, HIV testing.
[4] Except in the case of a person treating a patient, no person shall test a persons blood for evidence of antibodies to the probable causative agent of AIDS without the written consent of the subject of the test or the written consent of the subject, as provided in [Health and Safety Code] Section 121020, and the person giving the test shall have a written statement signed by the subject or conservator or other person, as provided in [Health and Safety Code] Section 121020 confirming that he or she obtained the consent from the subject. In the case of a physician and surgeon treating a patient, the consent required under this subdivision shall be informed consent, by the patient, conservator, or other person provided for in [Health and Safety Code] Section 121020. (Health & Saf. Code, 120990, subd. (a).)
[5] Notwithstanding Sections 120975 and 120990 of the Health and Safety Code, the court shall order every person who is convicted of, or adjudged by the court to be a person described by Section 601 or 602 of the Welfare and Institutions Code as provided in Section 725 of the Welfare and Institutions Code by reason of a violation of, a sexual offense listed in subdivision (e), whether or not a sentence or fine is imposed or probation is granted, to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS) within 180 days of the date of conviction. Each person tested under this section shall be informed of the results of the blood or oral mucosal transudate saliva test. ( 1202.1, subd. (a).)
[6] Under subdivision (e)(6)(A) of section 1202.1, a probable cause finding is required to order HIV testing in the event of a conviction of violating sections 264.1, 266c, 269, 288, or 288.5, or in the case of convictions based on or the attempted commission of those offenses. The court need not make a finding of probable cause that bodily fluid capable of transmitting HIV was transferred from the defendant to the victim where the conviction is for rape ( 261, 264.1), unlawful intercourse with a minor ( 261.5, 266c), rape of a spouse ( 262, 264.1), sodomy ( 266c, 286), or oral copulation ( 266c, 288a). ( 1202.1, subd. (e)(1)-(5).)
[7] We distinguish between the argument that there was insufficient evidence to support the HIV testing order, and the argument that the courts failure to make a specific finding of probable cause or failure to note such finding in the minutes or docket rendered the order unlawful. The former argument is not forfeited (Butler, supra, 31 Cal.4th at p. 1123; the latter argument is forfeited where (as is the case here), the defendant failed to raise an objection below. (People v. Stowell (2003) 31 Cal.4th 1107, 1113-1116; Butler, supra, at pp. 1125-1126.)
[8] In a recent case, our high court cited with approval various fact sheets and FAQ (frequently asked questions) promulgated by the CDC concerning aids and sexually transmitted diseases. (See John B. v. Superior Court (2006) 38 Cal.4th 1177, 1194, fns. 2-7, 1200-1201; see also Kerins v. Hartley (1994) 27 Cal.App.4th 1062, 1070-1071, fn. 3 [citing CDC hepatitis article].) Pursuant to Evidence Code section 459, we take judicial notice of the CDC fact sheet concerning the transmission of HIV that we discuss in the text of this opinion. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 37, fn. 2.)
[9] HIV has been found in saliva and tears in very low quantities from some AIDS [acquired immune deficiency syndrome] patients. It is important to understand that finding a small amount of HIV in a body fluid does not necessarily mean that HIV can be transmitted by that body fluid. HIV has not been recovered from the sweat of HIV-infected persons. Contact with saliva, tears, or sweat has never been shown to result in transmission of HIV. (CDC Fact Sheet, HIV and Its Transmission, supra, p. 4 at
[10] In 1995, former Health and Safety Code section 199.95 et seq. was repealed (Stats. 1995, ch. 415, 27, p. 3329), and recodified as Health and Safety Code section 121050 et seq. (Stats. 1995, ch. 415, 7, p. 3036).
[11] Any person charged in any criminal complaint filed with a magistrate or court . . . in which it is alleged in whole or in part that the defendant . . . interfered with the official duties of a peace officer . . . by biting . . . or transferring blood or other bodily fluids on, upon, or through the skin or membranes of a peace officer . . . shall in addition to any penalties provided by law be subject to an order of a court having jurisdiction of the complaint . . . requiring testing as provided in this chapter. [] The peace officer, . . . or the employing agency, officer, or entity may petition the court for an order authorized under this section. [] The court shall promptly conduct a hearing upon any such petition. If the court finds that probable cause exists to believe that a possible transfer of blood, saliva, semen, or other bodily fluid took place between the defendant . . . and the peace officer . . . the court shall order that the defendant . . . provide two specimens of blood for testing as provided in this chapter. . . . (Former Health & Saf. Code, 199.97.)
