Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. CM029693
NICHOLSON, J.
Defendant Fred Andrew Sprague locked the victim, his 17-year-old stepdaughter, in the bathroom against her will while he fondled her breasts and vagina, holding his hand over her mouth to prevent her from calling for help. The victim kicked the defendant and managed to get away. She ran into her bedroom and told her 13-year-old sister what happened. Defendant came into the victim’s bedroom and told the 13-year-old to leave. He then got on top of the victim and again held his hand over her mouth as he fondled her vaginal area and tried to penetrate her with his hand. He rubbed his penis against her skin and then left, only to return and threaten to have someone beat up and kill the victim’s boyfriend. The victim reported the incident to her mother the next morning and the police were notified.
Defendant was arrested and charged with two counts of sexual battery by restraint (Pen. Code, § 243.4, subd. (a) -- counts 1 and 2) and one count of false imprisonment (§ 236 -- count 3). He pleaded guilty to counts 1 and 3 in exchange for dismissal of count 2 and two pending misdemeanor cases, all pursuant to a Harvey waiver. The trial court denied probation and sentenced defendant to an aggregate term of four years eight months in state prison. The court ordered defendant to register as a sex offender (§ 290), provide DNA samples (§ 296, subd. (a)(1)), and be tested for AIDS (§ 1202.1). The court recommended that defendant attend drug and alcohol counseling (§ 1203.096), a batterers’ treatment program and a sex offender treatment program as a condition of parole.
Hereafter, undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
On appeal, defendant contends that (1) the probation condition requiring defendant to undergo AIDS testing was not authorized under section 1202.1, and (2) the abstract of judgment must be modified to reflect that the court recommended, but did not order, that defendant attend batterers’ treatment and sex offender treatment programs. The People properly concede both claims.
First, the trial court ordered defendant to undergo AIDS testing pursuant to section 1202.1. Section 1202.1 requires mandatory AIDS testing for persons convicted of certain offenses as enumerated in subdivision (e). However, neither section 243.4 nor section 236, the crimes to which defendant pleaded guilty, is among those listed in that subdivision. As such, imposition of the AIDS testing requirement was improper.
Next, the trial court recommended, but did not order, that defendant attend both a batterers’ treatment program and a sex offender treatment program as a condition of parole. However, the abstract of judgment reflects the court’s recommendation as an order. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) Given that neither program is mandated by statute, the abstract must be modified to comport with the oral pronouncement of judgment.
DISPOSITION
The trial court is directed to modify the judgment and the abstract to strike the AIDS testing requirement (§ 1202.1), and is further directed to modify the abstract to reflect that the batterers’ treatment program and the sex offender treatment program are recommended conditions of parole. As modified, the judgment is affirmed. The trial court shall deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BLEASE, Acting P. J., CANTIL-SAKAUYE , J.