Filed 12/18/13 P. v. Soliz CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038969
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS120611)

         v.

DAVID JOSEPH SOLIZ, JR.,

         Defendant and Appellant.



         Defendant David Joseph Soliz, Jr. appeals from a judgment of conviction entered
after he pleaded no contest to willful child endangerment (Pen. Code, § 273a, subd. (a))
and dissuading a witness by threat of force (Pen. Code, § 136.1, subd. (c)(1)). The trial
court sentenced defendant to five years in prison. We agree with defendant’s contention
that the trial court lacked authority to order that he be tested for acquired immune
deficiency syndrome (AIDS). Thus, the abstract of judgment and the minute order
should be modified to strike this requirement. As modified, the judgment is affirmed.


                                              I. Statement of the Case
         In April 2012, the Monterey County District Attorney charged defendant with
seven counts of sexual intercourse with a child under 10 years of age (Pen. Code, § 288.7,
subd. (a)) and seven counts of forcible lewd acts upon a child (Pen. Code, § 288,
subd. (b)(1)). The information also alleged that the lewd acts constituted substantial
sexual conduct with a child (Pen. Code, § 1203.066, subd. (a)(8)) and that defendant had
served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
       A jury trial began on August 27, 2012. On September 6, 2012, the parties reached
a plea agreement. The information was amended, and defendant pleaded no contest to
willful child endangerment (Pen. Code, § 273a, subd. (a)) and dissuading a witness by
threat of force (Pen. Code, § 136.1, subd. (c)(1)). The remaining charges and allegations
were dismissed.
       On October 9, 2012, the trial court sentenced defendant to five years in prison
pursuant to the plea agreement. The trial court also ordered defendant “to complete an
AIDS test pursuant to 1202.1(6)(a)(iii).” Defendant then filed a timely notice of appeal.
       On March 12, 2013, appellate counsel requested that the trial court modify the
abstract of judgment to correct the calculation of credits and to reflect the trial court’s
oral pronouncement that it imposed a one-year consecutive sentence for the dissuading a
witness conviction. Appellate counsel also requested that the AIDS testing order be
stricken. On March 19, 2013, the trial court corrected the calculation of credits and the
sentencing error in the abstract of judgment. The trial court also unchecked the box on
the abstract of judgment ordering AIDS testing. However, on the same day, the trial
court corrected the abstraction of judgment and the minute order for October 9, 2012,
corrected the calculation of credits and the sentencing error, and ordered defendant to
complete an AIDS test.


                                     II. Statement of Facts
       At the preliminary hearing, Detective Dale Fors testified that on
November 2, 2011, he interviewed seven-year-old Jane Doe. Defendant was Jane Doe’s
mother’s boyfriend and lived with Jane Doe and her family. Jane Doe told Fors that
defendant had “put his private part in her private part” on approximately eight occasions
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in the preceding two months. She also said that her “private area” was “very wet” after
one or more of these incidents. A medical examiner told Fors that there was “blunt
trauma to the vaginal area, as well as vaginal tearing on the walls of the vagina.”
       At trial, Jane Doe was unable to remember some of her statements to Fors.
However, she confirmed that defendant “put his private part inside of mine” on multiple
occasions and that it hurt her.
       Jane Doe’s grandmother testified that on November 2, 2011, she observed Jane
Doe as she was dressing and noticed that her vagina was enlarged and red. Jane Doe told
her grandmother that defendant had sexually assaulted her. Jane Doe’s aunt also looked
at Jane Doe’s vagina and saw that it was “really swollen.” Jane Doe also told her aunt
that defendant sexually assaulted her.


                                         III.   Discussion
       Defendant contends that the trial court lacked authority to order AIDS testing for
him.
       As this court recognized in People v. Guardado (1995) 40 Cal.App.4th 757
(Guardado) superseded by statute on other grounds, “[i]nvoluntary AIDS or human
immunodeficiency virus (HIV) testing is strictly limited by statute.” (Id. at p. 763.)
       Penal Code section 1202.1, subdivision (a) requires the 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 acquired immune deficiency syndrome
(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 of a child in violation of Penal
Code 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 the defendant to the victim.” (Pen. Code,


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§ 1202.1, subd. (e)(6)(A)(iii).) Here, though defendant was charged with lewd or
lascivious conduct with a child, he was not convicted of this offense.1
       Conceding that Penal Code section 1202.1 does not apply in this case, the
Attorney General contends that the matter should be remanded to permit Jane Doe to
request that defendant be tested for HIV pursuant to Health and Safety Code section
121055.2
       Section 121055 states that “[a]ny defendant charged in any criminal complaint”
with an enumerated sexual offense, including Penal Code section 288, “shall be subject to
an order of a court having jurisdiction of the complaint . . . requiring testing as provided
in this chapter. [¶] If an alleged victim listed in the complaint . . . makes a written
request for testing under this section, the prosecuting attorney, or the alleged victim may
petition the court for an order authorized under this section.” Upon receiving this
request, the trial court shall conduct a hearing to determine whether probable cause exists
to believe the defendant exchanged HIV-transmitting fluids with the alleged victim.
(§ 121055.)
       Guardado, supra, 40 Cal.App.4th 757 is instructive. In Guardado, the trial court
ordered an unauthorized AIDS test. (Id. at p. 763.) The Attorney General cited the
predecessor to section 121055, former section 199.96, as authorizing involuntary AIDS
testing and sought remand for the victim to submit a written request and the trial court to
hold a hearing on the request. (Guardado, at pp. 764-765.) This court reasoned that
“[t]he statute’s explicit requirement that there be a written request by the victim is
obviously intended to protect the victim’s privacy. Because testing may reveal that the
defendant has AIDS, such testing may also reveal that the victim has been exposed to and

1
        A defendant can “appeal an HIV testing order, without prior objection, on the
ground he had not been convicted of an enumerated offense. [Citations.]” (People v.
Butler (2003) 31 Cal.4th 1119, 1126 (Butler).)
2
        All further statutory references are to the Health and Safety Code unless otherwise
stated.
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may also have AIDS. The various statutes governing AIDS testing are designed to
protect the privacy of those who may be infected with AIDS. . . . [S]ection 199.96
explicitly requires a written request of the victim before an AIDS testing order can be
obtained. The prosecutor is not authorized to petition for AIDS testing in the absence of
a written request by the victim. [The 12-year-old victim, who was learning disabled,]
submitted no request and there is no evidence that she expressed any desire that
defendant be tested. The record before us does not contain any evidence from which we
can infer that [the victim] was incapable of making such a request. Because it would
subvert the purpose of the statute and invade the victim’s privacy if we were to ignore the
statute’s explicit requirements, we refuse to hold that a request of the victim is
unnecessary.” (Id. at p. 764.) Thus, Guardado held that “where the victim has neither
requested that the defendant be tested nor expressed any desire to make such a request,
we do not believe that . . . section 199.96 authorizes an appellate court to create
jurisdiction in the superior court after an appeal solely for the purpose of allowing the
victim the opportunity to make the written request which the statute requires.” (Id. at
p. 765.)
       Here, defendant was charged with offenses listed in section 121055 from
April 5, 2012 until September 6, 2012. At no time during this period did Jane Doe
request that the trial court order AIDS testing for defendant under section 121055.
Moreover, when defendant was sentenced in October 2012, he was no longer charged
with any crime listed in section 121055. Since the trial court was not authorized to order
AIDS testing pursuant to section 121055 at the sentencing hearing, we reject the Attorney
General’s contention that the matter should be remanded to permit Jane Doe to request
that defendant be tested for HIV pursuant section 121055.
       The Attorney General argues that Guardado is distinguishable. She first points
out that Guardado was decided prior to Butler, supra, 31 Cal.4th 1119. In Butler, the
defendant was convicted of lewd and lascivious acts (Pen. Code, § 288, subd. (a)).
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(Butler, at p. 1124.) The trial court ordered AIDS testing for the defendant pursuant to
Penal Code section 1202.1, but it failed to make the requisite probable cause finding.
(Butler, at p. 1125.) Though the defendant did not object to the order requiring AIDS
testing, Butler held that the defendant had not forfeited his appellate challenge to the
sufficiency of the evidence to support the probable cause finding. (Id. at p. 1123.) Given
the defendant’s failure to object, Butler remanded the matter for a hearing to allow the
prosecutor the opportunity to present additional evidence to support a probable cause
finding. (Id. at p. 1129.) Unlike Butler, here, defendant was not convicted of any offense
listed in Penal Code section 1202.1.
       The Attorney General next points out that the issue of AIDS testing was first
raised in Guardado at the sentencing hearing while the probation report in the present
case recommended that defendant be subject to AIDS testing. Here, the probation report
was filed 12 days before the sentencing hearing. As previously indicated, Jane Doe had
five months in which to seek a preconviction HIV testing order. Thus, this distinction is
not persuasive.
       The Attorney General also argues that Jane Doe was subject to more dangerous
conduct than the victim in Guardado and she “might not have understood the HIV testing
statute.” At issue, however, is whether there was statutory authorization for the trial
court to require that defendant be tested for HIV pursuant to Penal Code section 1202.1
or section 121055.
       The Attorney General’s reliance on People v. Green (1996) 50 Cal.App.4th 1076
(Green) is misplaced. In Green, the trial court ordered AIDS testing for the defendant
under Penal Code section 1202.1. (Green, at p. 1089.) However, the defendant had not
been convicted of any of the offenses listed in Penal Code section 1202.1. (Green, at
p. 1089.) Green reasoned: “[B]ecause the trial court made an order for AIDS testing of
[the defendant], there was no reason for the prosecutor or [the victim] to petition the trial
court for an order requiring Green to be tested for AIDS under . . . section 121055. Thus,
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the record demonstrates an inferred reliance on the trial court’s testing order. . . . [The
victim’s] right to test [the defendant] for AIDS should not be impaired merely because
the trial court’s initial order for such a test cannot be upheld under [Penal Code] section
1202.1.” (Green, at p. 1091.) We do not find Green’s reasoning persuasive. Green
failed to note that the victim could have requested an AIDS test at any time after the
complaint was filed and did not have to wait until the sentencing hearing. Green also
fails to explain how section 121055 creates jurisdiction in the trial court long after the
defendant’s sentence was imposed.


                                     IV.          Disposition
       The minute order and the abstract of judgment should be modified to strike the
AIDS testing requirement. As modified, the judgment is affirmed.



                                           _______________________________
                                           Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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