P. v. Hernandez
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), Court 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.
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