People v. Barriga

Opinion

HANLON, J.

In this case, we must determine whether the trial court lacked jurisdiction to order a blood test for evidence of acquired immune deficiency syndrome (AIDS) pursuant to Penal Code

1

section 1202.1 after appellant commenced his state prison sentence. We conclude that the trial court did not lack jurisdiction because the trial court’s failure to order the AIDS test rendered the sentence unauthorized and subject to correction at any time.

[69]

Factual Background

In May 1994, appellant pled guilty to one count of unlawful sexual intercourse with a person under the age of eighteen (§ 261.5). Pursuant to the negotiated disposition, imposition of sentence was suspended and appellant was placed on probation. Although the complaint included a notice that a conviction of section 261.5 would require appellant to submit to an AIDS test pursuant to section 1202.1, the trial court’s sentencing order did not include the AIDS test. In July 1995, a petition to revoke probation was filed based on the allegation that appellant pled nolo contendere to attempted robbery in a case filed in Alameda County. On March 15, 1996, following a probation revocation hearing in which the trial court found that appellant violated probation by committing the new offense, appellant was sentenced to two years in state prison. The trial court again failed to order the AIDS test. On July 18, 1996, the Department of Corrections notified the trial court that it had omitted to include an order for an AIDS test pursuant to section 1202.1 in the abstract of judgment and requested that the court indicate whether appellant was to be tested. On August 27, 1996, over defense counsel’s objection, the trial court amended the abstract of judgment and ordered the AIDS test.

Discussion

The sole issue on appeal is whether the trial court was without jurisdiction to order the AIDS test because appellant had already commenced his state prison sentence.

2

Relying on