People v. Diaz CA2/6

Filed 1/20/15 P. v. Diaz CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B252741 (Super. Ct. No. 2013016905) Plaintiff and Respondent, (Ventura County)

v.

MANUEL DIAZ,

Defendant and Appellant.

Under compulsion of California Supreme Court authority, we reverse an order requiring appellant to submit a blood sample for AIDS testing (Pen. Code §1202.l)1 and remand for an evidentiary hearing. (People v. Butler (2003) 3l Cal.4th `1119, 1129 (Butler).) Appellant contends and respondent concedes there is insufficient evidence to support the finding that a bodily fluid capable of transmitting HIV was transferred from appellant to the victim. Appellant, then age 30, approached the 14 year old victim, a complete stranger, and tried to kiss her. He was unsuccessful. Not an iota of appellant's bodily fluids came in contact with the victim. Nevertheless, when appellant was sentenced to state prison, the trial court ordered that a sample be provided. Appellant did not object and a blood sample for AIDS testing was taken from appellant while incarcerated in state prison. The issue, however, is not moot. (See Butler, supra, 31 Cal.4th at pp. 1128-1129.)

1 All statutory references are to the Penal Code unless otherwise stated. 1

In the presenting situation, the Supreme Court has announced the appropriate remedy: "Given the significant public policy considerations at issue, we conclude that it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. . . . '[I]n the absence of an objection at trial, the prosecutor had no notice that such evidence would be needed to overcome a defense objection.' Citations) Given the serious health consequences of HIV infection, it would be unfair to both the victim and the public to permit evasion of the legislative directive of evidence exists to support a testing order." (Id., at p. 1129.) We have no choice but to follow this explicit command from the California Supreme Court. (People v. Triggs (1973) 8 Cal.3d 884, 891; Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Cuccia v. Superior Court (2007) 153 Cal.App. 4th 347, 353-354.) The rules articulated and applied in these cases are well known and need not be repeated. We read Butler as requiring remand and the Court of Appeal should not lightly fashion its own rule where the facts of the instant case are not fairly distinguishable from those in the Supreme Court case. (People v. Triggs, supra, 8 Cal.3d at p. 891. ) Thus, we respectfully follow the law. Sentencing Minute Order/Abstract of Judgment Appellant argues, and the Attorney General agrees, that the sentencing minute order and abstract of judgment should be corrected to prevent the automatic release of test results to the victim. At the sentencing hearing, the trial court directed appellant to authorize the California Department of Public Health to release the test results to victim. Section 1202.1, subdivision (d)(2) does not authorize the automatic transmission of test results to a victim.2