Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. James W. Hollman, Judge, Super. Ct. No. VCF208709
Solomon Wollack, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Hill, J. and Poochigian, J.
INTRODUCTION
Appellant/defendant Paul Chacon was charged with multiple offenses for the sexual molestation of two girls. He pleaded no contest to count IV, felony sexual battery of a person who is seriously disabled or mentally incapacitated (Pen. Code, § 243.4, subd. (d)); and count V, misdemeanor child molestation (§ 647.6). He was sentenced to four years in state prison, and the court ordered AIDS testing pursuant to section 1202.1.
All further statutory citations are to the Penal Code unless otherwise indicated.
Defendant filed an appeal and obtained a certificate of probable cause. He raises the single issue that the court lacked statutory authority to order AIDS testing, pursuant to section 1202.1.
The following facts are from the preliminary hearing and probation report.
Count IV—M.L.
M.L. had cerebral palsy and slight retardation, and she was confined to a motorized wheelchair. After school, she took the bus to defendant’s house, and he acted as her babysitter and caregiver. In August 2008, M.L. told a bus driver, a social worker, and a police officer that defendant touched her private areas on numerous occasions when she was at his house. Defendant groped her breasts over her clothing, covered her mouth with his hand, and said not to tell anyone. M.L. said the incidents had occurred for a few weeks and she no longer wanted to stay with defendant.
M.L. also said defendant touched her body under her clothes, sat on her, and wrapped his legs around her. Defendant touched her vaginal area with his penis and it hurt. M.L. said defendant asked her to touch his private area. She refused and he made her do it anyway. M.L. said that defendant touched her buttocks with his penis under her clothing and also put his penis inside her buttocks. Defendant sometimes tied her hands with white string. M.L. said defendant threatened to kill her with a gun and knife, and he showed her a knife.
M.L. was physically examined and the nurse reported M.L. suffered damage in her vaginal cavity. M.L. had turned 18 years old a few weeks before she reported the incidents.
An officer interviewed defendant about M.L. Defendant said that he was a friend of her family. Defendant said he tried to get rid of M.L., but she would not stop coming to his house. Defendant claimed M.L. was a good liar. Defendant added that M.L. was 18 years old, and “‘I don’t touch her anywhere she doesn’t want me to.… I don’t molest her or have sex with her, even though she’s eighteen.’”
Defendant was subsequently arrested for molesting M.L. As he was being taken into custody, he told an officer, “‘I’ve always liked little girls, if you know what I mean. And when I’ve gotten caught, they have always gotten me into trouble. But I guess we all have that problem.’”
Count V—A.L.
In February and March 2008, A.L., who was 11 years old, reported to school officials and police officers that she sometimes stayed at defendant’s house when he was babysitting for her, and he made her feel uncomfortable. A.L. was again interviewed in August 2008, and she reported that defendant made her sit on his lap and put her leg near his private area. He always kissed her cheek, and his kisses had been getting closer to her mouth. Defendant told A.L. that she was his girlfriend and “‘honey bunny.’”
Defendant was interviewed by an officer about A.L.’s allegations. Defendant became very evasive and denied doing anything wrong with A.L. Defendant admitted he kissed A.L. on the cheek and asked her to be his girlfriend, but claimed he was only joking around.
Plea proceedings and sentencing hearing
Defendant was initially charged with count I, forcible rape of M.L. (§ 261, subd. (a)(2)); count II, forcible sodomy of M.L. (§ 286, subd. (c)(2)); counts III and IV, sexual battery by restraint of M.L. (§§ 243.4, subd. (a)); and count V, misdemeanor child molestation of A.L. (§ 647.6, subd. (a)).
Defendant entered into a negotiated disposition and pleaded no contest to an amended count IV, felony sexual battery of a person who is seriously disabled or mentally incapacitated as to M.L., in violation of section 243.4, subdivision (d); and count V, misdemeanor child molestation of A.L., for an agreed sentence of four years. The court dismissed the other charges.
The probation report recommended the court order defendant to submit saliva and blood samples for testing pursuant to section 296, subdivision (a), which requires any person who is convicted of, or pleads guilty or no contest to, any felony offense, to provide a DNA sample and print impressions for collection and storage in a state database. (See, e.g., People v. Travis (2006) 139 Cal.App.4th 1271, 1278-1279.) The probation report was silent as to whether the court should order AIDS testing under section 1202.1.
At the sentencing hearing, the court imposed the upper term of four years for count IV and no time for count V. The court also ordered defendant “to provide the appropriate specimens [of] blood, saliva or prints as required by the Code.” The court did not state further details.
The minute order for the sentencing hearing states that the court ordered defendant to provide, prior to his release from custody, fingerprints and blood and saliva samples pursuant to section 296, subdivision (a). The minute order also states that the court ordered defendant to submit to a blood test for AIDS testing pursuant to section 1202.1. The abstract of judgment has boxes checked indicating the court ordered defendant to submit samples for testing pursuant to section 296 and AIDS testing pursuant to section 1202.1.
DISCUSSION
Defendant contends this court must strike the requirement that he submit to AIDS testing because he was not convicted of offenses which permitted the trial court to order the test under section 1202.1.
A. The court’s order
We first note that the court’s orders at the sentencing hearing were rather vague. The court did not expressly order AIDS testing under section 1202.1. Instead, the court generally ordered that defendant submit samples for testing “as required by the Code, ” presumably meaning the Penal Code. Both the minute order and abstract of judgment, however, state the court ordered defendant to submit samples for testing under section 1202.1.
The general rule is that when there is a discrepancy between the oral pronouncement rendering judgment, as reflected in the reporter’s transcript, and the minute order or the abstract of judgment contained in the clerk’s transcript, the oral pronouncement controls. (People v. Mesa (1975) 14 Cal.3d 466, 471-472, superseded by statute on other grounds as explained in People v. Turner (1998) 67 Cal.App.4th 1258, 1268; People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1415-1416.) However, a minute order and abstract of judgment in the clerk’s transcript will control over a conflicting reporter’s transcript, where the orders in the clerk’s transcript are detailed and more reliable. (People v. Cleveland (2004) 32 Cal.4th 704, 768; People v. Malabag (1997) 51 Cal.App.4th 1419, 1426.) Given the details contained in the orders in the clerk’s transcript, we will find the court ordered AIDS testing under section 1202.1.
B. Defendant’s failure to object
Defendant did not object to the court’s order for AIDS testing. However, he has not waived appellate review of his contention that the court’s order was not statutorily authorized. Mandatory AIDS testing is strictly limited by statute, and a defendant’s failure to object to the testing order does not forfeit review of the contention on appeal. (People v. Butler (2003) 31 Cal.4th 1119, 1123, 1127-1128 (Butler); cf. People v. Stowell (2003) 31 Cal.4th 1107, 1114 [defendant’s failure to object to court’s failure to make express finding or notation of probable cause under §1202.1, subd. (e)(6) waives appellate review of the issue].)
We now to turn to the merits of the issue. As we have already noted, mandatory testing for AIDS is strictly limited by statute. (Butler, supra, 31 Cal.4th at p. 1123; People v. Guardado (1995) 40 Cal.App.4th 757, 763, superseded by statute on other grounds as explained in People v. Lansford (1998) 67 Cal.App.4th 901, 903.) Section 1202.1, subdivision (a) requires mandatory AIDS testing for persons convicted of certain sexual offenses, which are enumerated in section 1202.1, subdivision (e).
Section 1202.1, subdivision (e) contains two statutory grounds that authorize the court to order such tests. First, section 1202.1, subdivisions (e)(1) through (e)(5) list sexual offenses that automatically trigger mandatory AIDS testing without requiring the court to make any special findings. These offenses are rape (§ § 261, 264.1), unlawful intercourse with a person under 18 years of age (§ § 261.5, 266c); rape of a spouse (§ § 262, 264.1), sodomy (§ § 266c, 286), and oral copulation (§ § 266c, 288a). (§ 1202.1, subds. (e)(1)-(e)(5).)
The second statutory basis for AIDS testing is based on section 1202.1, subdivision (e)(6), which provides that upon defendant’s conviction of certain enumerated sexual offenses, the court must order AIDS testing only if the court finds “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); see, e.g., Butler, supra, 31 Cal.4th at p. 1125.) The enumerated offenses under this category are the commission or attempted commission of sexual penetration (§§ 264.1, 266c, 289), aggravated sexual assault of a child (§ 269), lewd or lascivious conduct with a child (§ 288), and continuous sexual abuse of a child (§ 288.5). (§ 1202.1, subds. (e)(6)(i)-(e)(6)(v).)
If a court orders AIDS testing under section 1202.1, subdivision (e)(6) and fails to make an express finding of probable cause, defendant’s failure to object to the lack of an express finding waives appellate review of that particular issue. (People v. Stowell, supra, 31 Cal.4th 1107, 1114.) A reviewing court, however, will presume an implied finding of probable cause and will sustain the implied probable cause finding if supported by substantial evidence. (Butler, supra, 31 Cal.4th at p. 1127.)
In this case, defendant pleaded no contest to a felony violation of section 243.4, subdivision (d), sexual battery of a person who is seriously disabled or mentally incapacitated, and a misdemeanor violation of section 647.6, child molestation. Neither offense is listed in section 1202.1, subdivisions (e)(1) through (e)(5) as a sexual offense that automatically triggers AIDS testing upon defendant’s conviction of an enumerated offense. In addition, the offenses are not listed in section 1202.1, subdivision (e)(6) as offenses that permit the court to order testing upon a finding of probable cause. While defendant was initially charged with the felony offenses of forcible rape and forcible sodomy, which would have triggered mandatory AIDS testing, he pleaded no contest to felony sexual battery, which is not an enumerated offense in section 1202.1, subdivision (e).
D. Caird
The People acknowledge that neither of defendant’s convictions is specifically listed in section 1202.1, subdivision (e). However, the People rely on People v. Caird (1998) 63 Cal.App.4th 578 (Caird), and argue a trial court is authorized to order testing, even if the defendant is convicted of an offense that is not enumerated in section 1202.1, subdivision (e), if the order was otherwise supported by an implied finding of probable cause to believe that bodily fluid capable of transmitting HIV was transferred from the defendant to the victim. (RB 5-6)
Caird does not support the People’s argument. In Caird, defendant was convicted of two counts of committing a lewd act on a child, and one count of forcible lewd act on a child, in violation of section 288, subdivisions (a) and (b). The court imposed an order for AIDS testing under section 1202.1, but it did not make any express probable cause findings. Defendant argued there was insufficient evidence to support the order. (Caird, supra, 63 Cal.App.4th at pp. 581, 590.) Caird held that commission of a lewd act was an enumerated offense under section 1202.1, subdivision (e)(6), which required a probable cause finding. Caird held the court’s implied finding of probable cause was supported by substantial evidence based on the facts of the offense. (Id. at p. 590.)
As applied to the instant case, M.L.’s statements would have supported an implied probable cause finding because she said that defendant put his penis in her vagina and buttocks, thus supporting the belief that bodily fluids were transferred between defendant and M.L. Contrary to the People’s arguments, however, Caird did not interpret section 1202.1, subdivision (e)(6) as defining a “catch all” provision for imposing an AIDS test order simply upon a finding of probable cause, regardless of the nature of the defendant’s conviction.
E. Adames and Frausto
The People raise the alternative argument that section 1202.1 has been interpreted to permit the court to order AIDS testing if a defendant is convicted of conduct which is “encompassed” by an enumerated offense list in section 1202.1, subdivision (e).
The People’s argument is based on People v. Adames (1997) 54 Cal.App.4th 198 (Adames), where the defendant was convicted of continuous sexual abuse of a child under the age of 14 years (§ 288.5), a crime that was not listed in section 1202.1, subdivision (e), at the time. The court ordered AIDS testing, but defendant argued the court’s order had to be stricken since he was not convicted of an enumerated offense. (Id. at p. 204.)
Adames held that while section 288.5 was not an enumerated offense, a violation of that statute encompassed a violation of section 288, commission of a lewd or lascivious act on a child. Section 288 was an enumerated offense at that time, and the court could order AIDS testing upon a probable cause finding. (Adames, supra, 54 Cal.App.4th at p. 211.) Adames compared the elements of defendant’s conviction of violating section 288.5 with the elements of section 288. A violation of section 288.5 “may be comprised of either ‘three or more acts of substantial sexual conduct..., as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288.’ [Citation.]” (Id. at p. 211, italics in original.) Adames noted that section 1203.066, subdivision (b) defined substantial sexual conduct as “‘penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object, oral copulation, or masturbation of either the victim or the offender.’ In contrast, ‘section 288 is violated by “any touching” of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.’ [Citation.] The conduct proscribed by both sections, however, overlap to the extent section 288 also applies where the victim is raped, sodomized, orally copulated, or where the defendant engages in unlawful sexual intercourse with a person under the age of 18. [Citations.]” (Id. at p. 212, italics added.)
Adames held that section 288 required the specific intent of “‘“arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant] or of the child....” A conviction for section 288.5, in contrast, could be based upon a course of substantial sexual conduct within the meaning of section 1203.066, subdivision (b), which requires no specific intent. [In other words, ] such acts could be engaged in for nonsexual purposes, for example for the infliction of pain, or to appeal to the sexual interest of a third person.’ [Citation.]” (Adames, supra, 54 Cal.App.4th at p. 212.)
Based on its comparisons of section 288 and section 288.5, Adames reached the following conclusion about whether the court could order AIDS testing upon defendant’s conviction of the non-enumerated offense:
“Section 1202.1 is subject to two interpretations. In pertinent part, it provides that ‘every person who is convicted of... a sexual offense listed in subdivision (e)’ must submit to AIDS testing (§ 1202.1, subd. (a)) and that those offenses include ‘[l]ewd or lascivious acts with a child in violation of Section 288’ (§ 1202.1, subd. (e)(6)). One interpretation is that the defendant must be convicted of a violation of section 288 as a condition for AIDS testing. Alternatively, the defendant’s conviction may encompass a crime that includes a violation of section 288.
“The Legislature’s intent clearly is to require AIDS testing of anyone who has committed ‘[l]ewd or lascivious acts with a child in violation of Section 288[.]’ The interpretation that restricts AIDS testing only to convictions under section 288 leads to a patently absurd result. Logically, the Legislature did not intend to require AIDS testing where a defendant violated section 288 under some circumstances, e.g., where he was charged with a violation of and convicted under section 288, but not under other circumstances, e.g., where he was convicted of section 288.5 based on multiple violations of section 288. We therefore adopt the other interpretation requiring the AIDS testing mandate of section 1202.1 to apply to a conviction which necessarily encompasses a violation of section 288 . [Citations.]” (Id. at pp. 212-213, italics added.)
Adames concluded that section 1202.1, subdivision (e)(6)’s inclusion of “‘[l]ewd or lascivious acts with a child in violation of Section 288’ encompasses a violation of section 288.5 which was based on ‘three or more acts of lewd or lascivious conduct under Section 288’ as contrasted with simply ‘three or more acts of substantial sexual conduct …, as defined in subdivision (b) of Section 1203.066.’” (Adames, supra, 54 Cal.App.4th at p. 213.) The defendant in Adames was convicted of violating section 288.5 as charged in the information, and the information expressly alleged defendant violated section 288.5 “by engaging in ‘three and more acts of “substantial sexual conduct, ” as defined in... section 1203.066(b), and three and more acts in violation of Section 288.’” (Id. at p. 213, italics in original.) Adames held the record contained sufficient evidence supporting the jury’s implied finding that defendant “committed the continuous child sexual abuse with the requisite specific intent under section 288 and that the underlying offenses constituted both ‘[l]ewd or lascivious acts’ under section 288 and substantial sexual conduct as defined in subdivision (b) of section 1203.066.” (Id. at p. 213.) “We therefore conclude that the AIDS testing mandate of section 1202.1 applies to the offense for which [defendant] was convicted.” (Id. at p. 213.)
A similar situation was addressed in People v. Frausto (1995) 36 Cal.App.4th 712 (Frausto), where defendant pleaded guilty to violating section 264.1, rape while acting in concert, and the court ordered AIDS testing. Defendant argued the court’s order was invalid because at that time, section 264.1 was not an enumerated offense in section 1202.1. Frausto held a violation of section 264.1 was the proper basis for an AIDS test order where the violation “derives from defendant’s personal participation in the rape.” (Id. at p. 713.) Defendant pleaded no contest to the information, which charged him with rape in concert both personally and by aiding and abetting his codefendant. (Id. at p. 715.) “By admitting to the charges of … the information, [defendant] conceded he personally raped the victim in violation of section 261, a listed offense.” (Ibid.) Frausto thus concluded that defendant’s plea admitted that he commited rape in violation of the enumerated offense of section 261. (Ibid.)
F. Analysis
In the instant case, the People argue that even though defendant pleaded no contest to the non-enumerated offense of sexual battery against M.L., Adames permits this court to find defendant’s conduct encompassed an offense that is enumerated in section 1202.1, subdivision (e).
We agree. Defendant pleaded no contest to sexual battery of a person who is seriously disabled or mentally incapacitated in violation of section 243.4, subdivision (d). That statute states:
“Any person who, for the purpose of sexual arousal, sexual gratification, or sexual abuse, causes another, against that person’s will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery.”
Sexual battery is a specific intent crime and consists of touching an intimate part of another, against the victim’s will, committed for the purposes of sexual arousal, gratification or abuse. (People v. Chavez (2000) 84 Cal.App.4th 25, 29.) As used in section 243.4, subdivision (d), “touches” means “physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.” (§ 243.4, subd. (f).) “‘Intimate part’ means the sexual organs, anus, groin, or buttocks of any person, and the breast of a female.” (§ 243.4, subd. (g)(1).) “‘Sexual battery’ does not include the crimes defines in Section 261 [rape] or 289 [forcible acts of sexual penetration].” (§ 243.4, subd. (g)(2).)
Based on Adames and Frausto, defendant’s conviction encompassed a crime enumerated in section 1202.1—sodomy (§ 286), an offense which permits the trial court to order AIDS testing without making further findings (§ 1202.1, subd. (e)(4)). “Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (§ 286, subd. (a), italics added.) At the preliminary hearing, the investigating officer testified that M.L. said defendant inserted his penis into her buttocks. The court found the preliminary hearing provided the factual basis for defendant’s plea. Thus, the factual basis for the plea clearly demonstrates that defendant’s plea encompassed an enumerated offense, and the court properly ordered AIDS testing in this case.
DISPOSITION
The judgment is affirmed.