Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62798
CANTIL-SAKAUYE, J.
The minor was adjudged a ward of the court (Welf. & Inst. Code, § 602) based on his admission of one count of annoying or molesting a child (Pen. Code, § 647.6) and one count of battery (Pen. Code, § 242) and the court’s finding that the minor committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and did cause great bodily injury (Pen. Code, § 12022.7). The court committed the minor to the Division of Juvenile Facilities for a maximum term of seven years and six months.
On appeal, the minor contends the juvenile court erred in failing to exercise its discretion in setting the maximum term of confinement and in imposing mandatory AIDS testing under Penal Code section 1202.1. We find merit only in the second contention and strike the order for AIDS testing.
FACTS
In October 2005, the 13-year-old minor entered his sister’s room and asked her to have sex with him. When she refused, he offered her $20. She told him to leave and the minor forced himself on top of her, fondling her breasts and touching her vagina through her clothes. She pushed him off and the minor exposed his penis. The minor’s mother attempted to discipline the minor and he struck her several times with a closed fist.
A wardship petition was filed, alleging six misdemeanors: two counts of annoying and molesting a child and four counts of battery. A second petition was filed a few days later, alleging the minor took a knife to school (Pen. Code, § 626.10, subd. (a)).
The minor admitted one count of annoying and molesting a child and one count of battery. The court adjudged him a ward of the court, set his maximum term of confinement at one year and two months, and ordered him held in juvenile hall pending long-term placement.
Over the next two years, the minor was placed in and terminated from six different group homes. During this period he was diagnosed with complex mental health problems and given psychotropic medications. In September 2008, the minor was detained in juvenile hall pending placement.
On October 10, 2008, the minor’s room was a mess; food had been strewn about and the Styrofoam tray destroyed. John Rallios, a juvenile detention officer, entered the minor’s room with two coworkers. The minor was on his bed, with his head covered with a blanket. After twice being instructed to remove the blanket, the minor did so. He was then asked for his shoes; the minor kicked them off and swung them at the door, missing the officers. The supervisor said to remove the minor’s bedding. The minor jumped up and attacked Rallios, hitting him four or five times in the face. Rallios fell to the ground. The minor was sprayed to restrain him.
Rallios had blood on his face and was in pain. He went first to the clinic and then to the emergency room. He suffered a split lip which required stitches, and a cut over his eye was closed with a butterfly bandage. He also had a broken nose, two black eyes, and facial swelling.
A wardship petition was filed, alleging the minor committed assault with force likely to cause great bodily injury and he had caused such injury. Following a contested jurisdictional hearing, the court found the allegations true.
A subsequent petition alleging two counts of misdemeanor battery on an officer with injury (Pen. Code, § 243, subd. (c)) was dismissed.
The juvenile court set the maximum period of confinement at seven years and six months. The court, stating it had no other option, committed the minor to the Division of Juvenile Facilities.
The minor appealed.
Shortly thereafter, the Division of Juvenile Facilities (DJF) wrote the court that it was unable to accept the minor without authorization for psychotropic medication. It also requested permission for AIDS testing pursuant to Penal Code section 1202.1.
Without objection from minor’s counsel, the court authorized psychotropic medication and ordered the minor to submit to AIDS blood testing.
This court granted the minor’s request to construe the notice of appeal to include the order for AIDS blood testing.
DISCUSSION
I.
We Presume the Court Properly Exercised its Discretion in Selecting the Maximum Period of Confinement
The minor contends the court failed to exercise its discretion in setting the maximum period of confinement at seven years and six months. The court did not discuss the facts of the case or explain its reason for selecting the maximum term. The minor contends the court simply selected the maximum term possible for an adult rather than exercising its discretion to determine the maximum term based on facts and circumstances of the minor’s case, as required by Welfare and Institutions Code section 731, subdivision (c).
The court calculated the maximum term as follows: four years for assault, three years for the great bodily injury enhancement, four months for child molestation, and two months for battery. The minor does not challenge this calculation.
Welfare and Institutions Code section 731, subdivision (c) provides in part: “A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section....”
This contention is answered by the recent decision, In re Julian R. (2009) 47 Cal.4th 487. In Julian R., the juvenile court set the maximum period of confinement as the maximum adult sentence but did not state on the record whether it considered facts and circumstances of the matter that might justify a lesser confinement period. The California Supreme Court held that where the record is silent, a reviewing court will presume “(1) the court exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant ‘facts and circumstances’ (§ 731, subd. (c)), and (2) the court determined that [the minor’s] appropriate confinement period was a period equal to the maximum adult term.” (In re Julian R., supra, at p. 499, fn. omitted.) This presumption is in accord with the “‘cardinal principle of appellate review’” that a judgment is presumed correct and all intendments and presumptions are indulged to support it. (Id. at pp. 498-499.)
II.
The Order for Mandatory AIDS Blood Testing Must be Stricken
The minor contends the order for mandatory AIDS testing pursuant to Penal Code section 1202.1 must be stricken. Because “involuntary HIV testing is strictly limited by statute,” the minor’s failure to object to the testing order does not forfeit the contention on appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1123.)
Penal Code section 1202.1, subdivision (a) provides that every person “adjudged by the court to be a person described by Section 601 or 602 of the Welfare and Institutions Code,... by reason of a violation of, a sexual offense listed in subdivision (e)... to submit a blood or oral mucosal transudate saliva test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS)....” The minor contends Penal Code section 647.6 is not one of the sexual offenses listed in subdivision (e) of Penal Code section 1202.1.
The Attorney General concedes Penal Code section 1202.1 does not authorize the testing, but contends striking the order is not the proper remedy. The Attorney General contends the testing order is appropriate under Health and Safety Code section 121060. He asserts the proper remedy is either to amend the testing order to reflect the proper statutory authority or to remand for a probable cause determination under Health and Safety Code section 121060.
Health and Safety Code section 121060 provides a procedure for a peace officer, firefighter or emergency personnel to obtain testing of an arrestee for HIV, hepatitis B and hepatitis C. In relevant part, the statute provides: “Any peace officer,... who, while acting within the scope of his or her duties, is exposed to an arrestee’s blood or bodily fluids... [¶] [m]ay petition, ex parte, the court for an order requiring testing, as provided in this chapter.” (Health & Saf. Code, § 121060, subd. (a).) If a petition is filed the court shall conduct a hearing to determine if there is probable cause to believe a possible bloodborne pathogen exposure took place between the officer and the arrestee. (Id., subd. (b).)
Health and Safety Code section 121060 was amended in 2008. (Stats. 2008, ch. 554, § 1.) The previous version required an allegation that the minor interfered with the official duties of an officer “by biting, scratching, spitting, or transferring blood or other bodily fluids on, upon, or through the skin or membranes” of the officer. (Stats. 1995, ch. 415, § 7, p. 3037.)
The statute requires the officer be exposed to the arrestee’s blood or bodily fluids. (Health & Saf. Code, § 121060, subd. (a).) Here the minor’s assault on Officer Rallios drew the officer’s blood, but there was no evidence that Officer Rallios was exposed to the minor’s blood or other bodily fluid, nor did Rallios petition the court for an order requiring testing. The request came from DJF. The testing order was not authorized by Health and Safety Code section 121060. The order for AIDS testing must be stricken. (In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 538.)
DISPOSITION
The court’s order that the minor be tested for AIDS is stricken. In all other respects the judgment is affirmed.
We concur: BLEASE, Acting P. J. RAYE, J.