Filed 5/22/18 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ERIC CHARLES RODRIGUEZ,

Defendant and Appellant.

F073975

(Super. Ct. No. BF163088A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant Eric Charles Rodriguez stands convicted of assault on a person under the age of 18 years with intent to commit rape (Pen. Code § 220, subd. (a)(2)) and committing a lewd or lascivious act upon a child 14 or 15 years of age (§ 288, subd. (c)(1)). At sentencing, the trial court ordered Rodriguez to submit to AIDS (acquired immunodeficiency syndrome) testing under section 1202.1. Rodriguez contends the evidence does not support the section 1202.1 order. The People agree. We will remand the matter for further proceedings consistent with People v. Butler (2003) 31 Cal.4th 1119 (Butler).
FACTUAL AND PROCEDURAL SUMMARY
We provide a recitation of only the facts and procedure relevant to the issue on appeal.
On February 5, 2016, around 2:00 a.m., Rodriguez entered an apartment in Oildale where the then 14-year-old victim was sleeping in the living room; Rodriguez was “full naked.” He positioned himself between her legs and held her down by the shoulders; the victim was wearing sweatpants and a T-shirt. Feeling the weight on top of her, the victim awoke. Rodriguez covered her mouth with his hand and said, “[s]hhh,” then went to “grab [her] boob.” The victim screamed to alert her family members in the apartment. Rodriguez jumped up and fled the apartment.
Later that morning, deputies located Rodriguez in the storage room of the apartment complex. Rodriguez was naked, except for black socks. The victim identified Rodriguez in a photographic line-up and in court as her assailant.
The jury convicted Rodriguez of assault of a person under 18 years of age with intent to commit rape and of committing a lewd or lascivious act on a child of 14 or 15 years of age. (§ 220, subd. (a)(2), § 288, subd. (c)(1).)
The probation department recommended a sentence of the upper term of nine years for the section 220 offense, and that the term for the section 288 offense be stayed pursuant to section 654.
At the June 3, 2016, sentencing hearing, the trial court noted that Rodriguez had a prior criminal record, but “no crimes of violence for which he’s been convicted.” The trial court imposed the low term of five years for the section 220 offense; the term for the section 288 offense was stayed pursuant to section 654. In addition, the trial court ordered Rodriguez to submit to a blood test for evidence of AIDS, pursuant to section 1202.1.
Rodriguez did not object to imposition of the section 1202.1 order. The requirement for AIDS testing pursuant to section 1202.1 is included in the abstract of judgment.
Rodriguez filed a notice of appeal on June 17, 2016.
DISCUSSION
Rodriguez contends, “no credible evidence supports the trial court’s implied finding” that Rodriguez placed the victim at risk for contracting the AIDS virus and that the matter must be remanded for reconsideration of the section 1202.1 order.
Section 1202.1, subdivision (a), requires the trial court to order designated persons “to submit to a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of [AIDS] within 180 days of the date of conviction.” Among those required to submit to an AIDS test are those persons convicted of lewd conduct with a child in violation of section 288, provided that “the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [(human immunodeficiency virus)] has been transferred from the defendant to the victim[.]” (§ 1202.1, subd. (e)(6)(A)(iii).)
On appeal, Rodriguez contends there is no credible evidence to support an implied finding of probable cause to believe that any bodily fluids capable of transmitting HIV were transferred from him to the victim. Rodriguez therefore requests that we remand the matter “for reconsideration of the order requiring AIDS testing.” The People concede the issue and maintain the order for AIDS testing should be vacated and the matter remanded under Butler.
We first note that failure to object to the AIDS testing order in the trial court does not preclude Rodriguez from challenging the order in this appeal. (Butler, supra, 31 Cal.4th at p. 1126.)
The California Supreme Court in Butler made clear our role on appeal: “[I]f the trial court orders testing without articulating its reasons on the record, the appellate court will presume an implied finding of probable cause. [Citation.] Nevertheless, because the terms of the statute condition imposition on the existence of probable cause, the appellate court can sustain the order only if it finds evidentiary support, which it can do simply from examining the record. Moreover, even if the prosecution could have established probable cause, in the absence of sufficient evidence in the record, the order is fatally compromised.” (Butler, supra, 31 Cal.4th at p. 1127.)
We agree with the parties that there is not probable cause in the record to believe that blood, semen, or any other bodily fluid capable of transmitting HIV was transferred from Rodriguez to the victim. Although Rodriguez was naked, the victim was clothed and her testimony does not disclose a potential transfer of bodily fluids from Rodriguez to her. We therefore turn to the question of the appropriate remedy.
The appropriate remedy was examined at length in Butler: “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. As the Court of Appeal observed, ‘in the absence of an objection at trial, the prosecutor had no notice that such evidence would be needed to overcome a defense objection.’ [Citation.] 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, we concur in the Court of Appeal’s determination that it is appropriate to remand the matter for further proceedings at the election of the prosecution.” (Butler, supra, 31 Cal.4th at p. 1129.)
Here, Rodriguez did not object to the trial court’s order at sentencing and the People had no notice that additional evidence supporting the section 1202.1 order was needed. We therefore find that remand is the appropriate remedy.
DISPOSITION
The order for testing pursuant to Penal Code section 1202.1 is stricken and the matter 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 AIDS testing pursuant to Penal Code section 1202.1. If the People fail to request a further hearing within 30 days of remittitur, any existing blood or saliva specimen taken pursuant to the order shall be destroyed. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment at the expiration of the 30-day period or following any further Penal Code section 1202.1 hearing, as required, and to forward a certified copy to the appropriate authorities.