People v. Soliz CA6

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.