Filed 4/7/15 P. v. Jimenez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 OF THE STATE OF
CALIFORNIA,                                                                                F068241

         Plaintiff and Respondent,                                           (Super. Ct. No. CRM019815)

                   v.
                                                                                         OPINION
RAFAEL JIMENEZ,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. Marc Garcia,
Judge.
         John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Poochigian, J. and Smith, J.
          Appellant Rafael Jimenez pled no contest to committing a lewd act on a child at
least 10 years younger (count 1/Pen. Code, § 288, subd. (c)(1))1 and two counts of lewd
and lascivious conduct with a child under the age of 14 (counts 2 & 10/§ 288, subd. (a)).
          On appeal, Jimenez contends: (1) the protective order issued by the court must be
stricken; and (2) the order requiring him to undergo Acquired Immune Deficiency
Syndrome (AIDS) testing is not supported by substantial evidence. We will find merit to
Jimenez’s first contention and strike the protective order. In all other respects, we will
affirm.
                                                FACTS
          Jimenez lived in Livingston and is the uncle of S.M., R.M., and J.R. In 2005, at
age 14, S.M. went to live with her grandparents in Livingston. When S.M. was 15 years
old she sometimes helped Jimenez at his office. On some occasions, Jimenez would try
to kiss her on the mouth and hug her, which made her feel uncomfortable. Sometimes he
succeeded in kissing her and he would put his lips against hers and push his tongue in her
mouth. A few times Jimenez tried to reach under her shirt but she pushed him away.
Other times, he would touch her chest over her clothes. Jimenez also would touch S.M.’s
buttocks over her clothes. On two occasions, he put his hand under her skirt and moved
it up her legs.
          Jimenez bought S.M. a cell phone and paid her phone bill because she helped him
at the office. The day he bought the phone, he took her to his house on the pretext that he
needed to pick up something. While at the house, S.M. went into his bedroom at
Jimenez’s direction. Jimenez then attempted to put S.M. on the bed. He also kissed her
and placed his tongue in her mouth. S.M. resisted and after a few minutes he stopped and
they left the house.



1         All further statutory references are to the Penal Code.


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       On another occasion, when S.M. spent the night at Jimenez’s house, S.M. slept on
a couch and woke up in the middle of the night to find Jimenez standing above her
wearing only underwear and watching her sleep.
       When S.M. was 16 years old she moved back in with her mother in Antioch.
However, after she turned 18 she returned to live with her grandparents in Livingston and
the kissing and touching by Jimenez started again.
       R.M. visited Livingston almost every weekend when she was growing up. Around
2001, when R.M. was eight or nine years old, Jimenez began touching her
inappropriately and telling her she was pretty and that he wished she were his. This
happened almost every weekend that she visited Livingston. The first time Jimenez
touched R.M., she was at Jimenez’s house getting ready to go to bed and wearing a
nightgown. As she lay on the bed, Jimenez came up to her and began rubbing her
buttocks, back, neck, and chest over her clothes. On another occasion, when she was in
sixth grade, R.M. was sleeping in a room at Jimenez’s house when Jimenez came in and
began rubbing her body over her clothes. Jimenez also rubbed R.M.’s vagina over her
clothes on one occasion.
       In August 2010, J.R., who was 10 years old, spent the night at Jimenez’s house. In
the morning, Jimenez followed her as she went into his room to get some of her
belongings. Jimenez then asked her if she would flex her chest. She initially refused, but
he insisted she try, and when she attempted to comply Jimenez put his hand down her
shirt and under her bra. However, he removed it quickly because J.R.’s brothers were
coming into the room. Later that day, Jimenez gave J.R. $5.00. Jimenez also offered to
pay J.R. if she stayed at his house but she refused.
       After the above incidents came to light, Jimenez fled to Mexico. However, he was
arrested in Manteca on September 29, 2011.
       On May 15, 2012, the district attorney filed an information charging Jimenez with
lewd and lascivious conduct with a child 14 or 15 years of age while being 10 years older

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than the child (§ 288, subd. (c)(1)) and nine counts of lewd and lascivious conduct with a
child under the age of 14 (§ 288, subd. (a)).
       On March 6, 2013, Jimenez entered his plea to three counts in exchange for the
dismissal of the remaining counts and a lid of six years.
       On September 27, 2013, the court sentenced Jimenez to an aggregate term of five
years eight months, the mitigated term of three years on count 2, a consecutive two-year
term (one third the middle term of six years) on count 10, and a consecutive eight-month
term (one-third the middle term of two years) on count 1. The court also issued a
protective order prohibiting Jimenez from contacting any of the three victims.
                                       DISCUSSION
The Protective Order
       The court did not cite the statutory authority it relied on to issue its protective
order. In his opening brief, Jimenez assumed that the court issued the order pursuant to
section 1202.05 subdivision (a)2 and he contended the order was inapplicable as to S.M.
and R.M. because they were each over 18 years of age when he was sentenced, and
overbroad as to J.R. who was under the age of 18 at the time.
       After the briefs in this matter were filed, Jimenez augmented the record to include
a copy of the court’s signed protective order which indicates it was issued pursuant to
section 136.2. This section allows a court to issue a protective order, “Upon a good cause
belief that harm to, or intimidation or dissuasion of, a victim or witness has occurred or is
reasonably likely to occur ….” (§ 136.2, subd. (a)(1).)



2       Section 1202.05, subdivision (a) in pertinent part provides: “Whenever a person
is sentenced to the state prison on or after January 1, 1993, for violating Section 261,
264.1, 266c, 285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of those
offenses is a child under the age of 18 years, the court shall prohibit all visitation between
the defendant and the child victim.…”



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       On February 5, 2015, this court allowed the parties to file a supplemental brief in
this matter in light of the augmentation into the record of the court’s protective order.
Jimenez filed a letter brief contending that orders pursuant to section 136.2 are limited to
proceedings that are pending in the trial court. (People v. Ponce (2009) 173 Cal.App.4th
378, 382 (Ponce).) Thus, according to Jimenez, the order was unauthorized because
there were no pending trial proceedings and it should be stricken.
       Respondent concedes that the trial court did not have authority pursuant to section
136.2 to issue a protective order. Respondent, however, contends that the court’s
issuance of an order indicates the court intended to prohibit Jimenez from contacting the
victim and it could have issued a protective order pursuant to section 1201.3.3 Thus,
according to respondent, the matter should be remanded to the trial court so that it may
exercise its discretion.
       We agree that the court did not have authority to issue a protective order pursuant
to section 136.2 because with the sentencing of Jimenez the proceedings in the trial court
concluded. (See Ponce, supra, 173 Cal.App.4th at p. 382.) However, we disagree with
respondent that the matter should be remanded to the trial court to allow it to exercise its
discretion.
       “[E]ven where a court has inherent authority over an area where the Legislature
has not acted, this does not authorize its issuing orders against defendants by fiat or
without any valid showing to justify the need for the order.” (Ponce, supra, 173
Cal.App.4th at p. 384.) “[A] prosecutor’s wish to have such an order, without more, is


3       Section 1201.3 subdivision (a) provides: “Upon the conviction of a defendant for
a sexual offense involving a minor victim or, in the case of a minor appearing in juvenile
court, if a petition is admitted or sustained for a sexual offense involving a minor victim,
the court is authorized to issue orders that would prohibit the defendant or juvenile, for a
period up to 10 years, from harassing, intimidating, or threatening the victim or the
victim’s family members or spouse.” The no-contact order here is much broader than the
statute’s prohibition against harassment, intimidation and threats.


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not an adequate showing sufficient to justify the trial court’s action.” (Id. at pp. 384-
385.)
        The prosecutor did not make an offer of proof or any argument in the trial court
justifying a no-contact protective order. Nor has respondent pointed to any evidence in
the record that would support such an order. Consequently, we reject respondent’s
contention that this matter should be remanded to the trial court so that it may consider
whether to issue an order pursuant to section 1201.3.
The Order Requiring AIDS Testing
        Jimenez contends the “AIDS testing order is without evidentiary support” because
the record does not contain any evidence that any fluid capable of transmitting HIV was
transferred from Jimenez to any victim. Thus, according to Jimenez, the order should be
stricken and the test results ordered destroyed. Jimenez is wrong.
        “[S]ection 1202.1 provides in relevant part that ‘[n]otwithstanding Sections
120975 and 120990 of the Health and Safety Code, the court shall order every person
who is convicted of ... a sexual offense listed in subdivision (e) ... to submit to a blood ...
test for evidence of antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) ....’ (Pen. Code, § 1202.1, subd. (a).) Penal Code section
1202.1, subdivision (e)(6)(A)(iii), includes ‘[l]ewd or lascivious conduct with a child in
violation of Section 288,’ but with the proviso that testing shall be ordered only ‘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:
[¶] ... [¶] For purposes of this paragraph, the court shall note its finding on the court
docket and minute order if one is prepared.’ (Pen. Code, § 1202.1, subd. (e)(6)(A), (B).)”
(People v. Butler (2003) 31 Cal.4th 1119, 1125.)
        Here, the court could reasonably find that Jimenez transferred saliva to victim
S.M. during the incidents of molestation when Jimenez put his tongue in her mouth while
kissing her. Further, in Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255,

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1279-1280 (Johnetta J.), the court reasoned that because saliva was theoretically capable
of transmitting HIV, an order for AIDS testing was reasonably justified and did not
violate the defendant’s Fourth Amendment protection against unreasonable searches.
There, the defendant bit a sheriff’s deputy and was charged with assault. The sheriff’s
department sought an AIDS test of the defendant. (Id. at p. 1261; see Health & Saf.
Code, § 121060 (formerly § 199.95) [providing for testing where, among other things, a
peace officer is bitten].) In support of its request, the department submitted a doctor’s
report that described the bite as “‘a deep puncture type bite.’” (Johnetta J., supra, 218
Cal.App.3d at p. 1263.) The report stated, “‘[t]here was no blood in the mouth of [the
defendant] at the time; but certainly saliva was transferred.’” (Ibid.) The report further
stated that the AIDS virus “‘is in all bodily fluids, although in low concentrations in
saliva. Theoretically, a transmission of the AIDS virus (HIV) could have occurred. No
such transmission has been reported in the medical literature without blood present-but it
is theoretically possible.’” (Ibid., italics in original.)
       The trial court conducted a hearing concerning whether saliva could transmit HIV
and admitted expert testimony and opinion on the issue. (Johnetta J., supra, 218
Cal.App.3d at pp. 1263-1269.) On appeal, the court concluded, “The record below
establishes that HIV can be found, albeit in small amounts, in saliva. The experts
essentially agree there is a theoretical possibility of saliva transfer, and the trial court so
found. Although this possibility is extremely low, the majority of the experts agreed that
the possibility cannot be categorically ruled out. The record is replete with expert
medical opinion, from some of the very physicians leading the fight against AIDS, that
the current state of medical knowledge of AIDS is evolving, that medicine is still
‘unraveling the mysteries’ of the disease, and that the available evidence is insufficient to
determine conclusively that HIV cannot be transferred through a bite.” (Id. at pp. 1279-
1280; see Syring v. Tucker (Wis. 1993) 174 Wis.2d 787 [498 N.W.2d 370] [some
evidence of transmission via saliva]; Doe v. Borough of Barrington (D.N.J. 1990) 729

                                                7
F.Supp. 376 [risk of such transmission extremely low or nonexistent]; but see Brzoska v.
Olson (Del. 1995) 668 A.2d 1355 [despite presence of HIV in saliva, no transmission].)
       We consider the courts discussion in Johnetta J. to be apropos here and find the
evidence that defendant kissed one of the victims sufficient to support a finding of
probable cause for the order for AIDS testing.
       Jimenez contends that assuming a small amount of saliva was exchanged, there is
no evidence that saliva is capable of transmitting HIV. However, there was no need for
the prosecutor to present evidence showing that saliva can transmit HIV because prior
case law has established that it can, albeit the possibility that it will actually infect a
victim is remote.
       Jimenez challenges the holding of Johnetta J. by citing to documents from Internet
Web sites that he contends “establish that HIV cannot be transmitted by saliva or from
kissing.” His reliance on, and citation to, this factual material that was not presented
below is improper. (See People v. St. Martin (1970) 1 Cal.3d 524, 537-538 [“ordinarily
matters not presented to the trial court and hence not a proper part of the record on appeal
will not be considered on appeal”]; Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant’s
opening brief shall include “a summary of the significant facts limited to matters in the
record”]; cf. In re Zeth S. (2003) 31 Cal.4th 396, 399-400 [appellate court generally may
not consider postjudgment evidence outside the record on appeal to reverse dependency
court’s order terminating parental rights].) Accordingly, we reject Jimenez’s contention
that the evidence is insufficient to support the court’s order requiring AIDS testing of
Jimenez.
                                        DISPOSITION
       The criminal protective order is stricken. In all other respects, the judgment is
affirmed.




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