People v. Frausto

Opinion

WOODS (A. M.), P. J.

Appellant Isaías Frausto pled guilty to a violation of Penal Code section 264.1, rape while acting in concert. He appeals from an order requiring him to undergo AIDS testing pursuant to section 1202.1 of the Penal Code, arguing that section 264.1 is not specifically listed in section 1202.1 as one of the offenses on which an order for compulsory AIDS testing can be based. We hold that a violation of section 264.1 can form the basis for an AIDS test where, as here, the section 264.1 violation derives from the defendant’s personal participation in the rape. Accordingly, we affirm the trial court’s order.

I

Appellant and codefendant, Ricardo Frausto, picked up a young woman under the pretext of giving her a ride, drove her to a deserted area, and forced her to engage in various sexual acts. At the preliminary hearing, the

[714]

victim specifically testified to having been penetrated by appellant. Ricardo Frausto was unable to achieve an erection, but, according to the victim’s testimony, he forced her to orally copulate him and penetrated her with his fingers.

Appellant and Ricardo Frausto were charged with rape while acting in concert, assault with intent to commit rape, penetration by a foreign object, oral copulation by force while acting in concert, and kidnapping for sexual purposes. Under a plea bargain, appellant pled no contest to “Count 1 a violation of Penal Code Section 264.1 ....’’ Section 264.1 governs where defendant “voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261 [rape], 262 [spousal rape], or 289 [penetration by foreign object],

either personally or by aiding and abetting the other person

. . . .” (Pen. Code, § 264.1, italics added.) Specifically, count 1 charged that “[o]n or about December 8, 1993, in the County of Los Angeles, the crime of forcible rape while acting in concert, in violation of Penal Code Section 264.1, a Felony, was committed by Ricardo Antonio Frausto and Iseious [sic] Frausto, who did willfully and unlawfully have and accomplish an act of sexual intercourse with a person ... by means of force and fear of immediate and unlawful bodily injury on said person and another while voluntarily acting in concert with each other and another by force and violence and against the will of [the victim] personally and by aiding and abetting each other and another in violation of penal code sections 264.1 and 261(2).”