People v. Diaz CA2/6 ( 2015 )

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
2
Section 1202.1, subdivision (d)(2) states: "Notwithstanding any other law, upon the
victim's request, the local health officer shall be responsible for disclosing test results to
the victim who requested the test and the person who was tested. However, as specified
in subdivision (g), positive test results shall not be disclosed to the victim or the person
who was tested without offering or providing professional counseling appropriate to the
circumstances . . . ."
2.
The sentencing minute order and abstract of judgment state that appellant
has a history of drug abuse and recommend that appellant participate in counseling or an
education program. (§ 1203.096.) Although counseling/educational programs were
recommended in the probation report, it was not ordered. Where there is a conflict
between the oral pronouncement of judgment and the minute order/abstract of judgment,
the oral pronouncement of sentence as shown by the reporter's transcript controls.
(People v. Jones (2012) 54 Cal.4th 1, 89.)
Conclusion
The order for AIDS testing is reversed and the matter is remanded for an
evidentiary hearing. (Butler, supra, 31 Cal.4th at p. 1129.) The superior court clerk is
directed to (1) strike the order directing the Department of Public Health to release the
results of the AIDS test to the victim, (2) strike the order recommending that appellant
participate in substance abuse counseling or an education program, (3) amend the
November 21, 2013 sentencing minute order and abstract of judgment to reflect the above
changes, and (4) forward certified copies to the Department of Corrections and
Rehabilitation In all other respects the judgment of conviction and eight year prison
sentence is affirmed.
NOT FOR PUBLICATION
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
3.
Charles W. Campbell, Judge
Superior Court County of Ventura
______________________________
Tanya Dillaca , under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr., Supervising Deputy Attorney General, Allison H. Chung, Deputy
Attorney General, for Plaintiff and Respondent.
4.