Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. LF007440A. Jerold L. Turner, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J. and Kane, J.
Appellant Robert G. Langley pled no contest to a violation of Penal Code section 288.5, subdivision (a) (continuous sexual abuse of a child) and admitted he had one prior felony conviction (“strike”) within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At sentencing, the trial court granted appellant’s motion to dismiss his strike conviction. He was sentenced to the upper term of 16 years, granted time credits, and ordered to register as a sex offender and provide a blood sample for AIDS testing under section 1202.1. The court also ordered appellant to pay a restitution fine.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, appellant challenges the court’s order that he provide blood for an AIDS test under section 1202.1. He contends that order should be stricken because the evidence was insufficient as a matter of law to prove that any “bodily fluid capable of transmitting HIV has been transferred from [appellant] to the victim.” (§ 1202.1, subd. (e)(6)(A).) Respondent concedes that the record lacks evidentiary support for the court’s order, but urges this court to remand the matter for a probable cause hearing at the election of the prosecutor pursuant to People v. Butler (2003) 31 Cal.4th 1119 (Butler).
Section 1202.1 mandates that every person convicted of certain specified sexual offenses, including a violation of section 288.5, be ordered to submit to a blood or oral saliva test provided that the court “finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.” (§ 1202.1, subd. (e)(6)(A).)
The trial court did not explain its reasons for imposing the HIV testing order. According to the probation officer’s report, appellant’s 13-year-old stepdaughter reported that appellant had touched her buttocks on the outside of her clothing, touched her vagina and buttocks areas on the inside of her clothing and had kissed her on the mouth. Both appellant and respondent agree that on the record provided there is insufficient evidence to support a finding of probable cause to believe that bodily fluids were transferred from appellant to the victim. The issue before this court is whether the AIDS testing order should be stricken or whether a remand should be ordered. Our Supreme Court has answered this question in Butler, supra, 31 Cal.4th 1119. The court reasoned:
“The question remains whether any remedy should be available when a defendant successfully challenges an HIV testing order for insufficiency of the evidence of probable cause.… [¶] Given the significant public policy considerations at issue, we conclude 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. As the Court of Appeal observed, ‘in the absence of an objection at trial, the prosecutor had no notice that such evidence would be needed to overcome a defense objection.’ [Citation.] 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 if evidence exists to support a testing order. Accordingly, we concur in the Court of Appeal’s determination that it is appropriate to remand the matter for further proceedings at the election of the prosecution. [Citation.]” (Butler, supra, 31 Cal.4th at p. 1129.)
Following the Supreme Court’s direction, we will strike the AIDS testing order and remand the matter to permit a probable cause hearing to be conducted if the prosecutor so requests.
DISPOSITION
The AIDS testing order is stricken. The matter is remanded to the trial court to permit a further hearing on the probable cause issue at the election of the prosecution. The judgment is otherwise affirmed.