People v. Butler, S107791

Citation79 P.3d 1036,6 Cal.Rptr.3d 730,31 Cal.4th 1119
Decision Date01 December 2003
Docket NumberNo. S107791,S107791
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. Willie Earl BUTLER, Defendant and Appellant.

Bradley A. Bristow, Sacramento, under appointment by the Supreme Court; and Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Mary Jo Graves, Assistant Attorney General, Michael J. Weinberger, Ruth M. Saavedra, Patrick J. Whalen, Janet E. Neeley, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, J.

Penal Code section 1202.1 provides that upon conviction of certain sex offenses against minors, a defendant shall be ordered "to submit to a blood ... test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS)" "if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [human immunodeficiency virus] has been transferred from the defendant to the victim: [¶] ... [¶] For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared." (Pen.Code, § 1202.1, subds.(a), (e)(6)(A), (B).) In the companion case of People v. Stowell (Dec. 1, 2003, S108187) 31Cal.4th 1107, 6 Cal.Rptr.3d 723, 79 P.3d 1030, 2003 WL 22834961, we conclude that, absent a timely objection, a defendant may not challenge such an order on appeal for lack of an express finding of probable cause or a notation of such finding in the docket. In this matter, we must determine whether a defendant also forfeits any challenge for insufficiency of the evidence to support a finding of probable cause if he has failed to make an appropriate objection in the trial court.

We conclude that since involuntary HIV testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection. Without evidentiary support the order is invalid. We therefore affirm the judgment of the Court of Appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted defendant Willie Earl Butler of lewd and lascivious acts with a minor under the age of 14 (Pen.Code, § 288, subd. (a)), sexual battery (id., § 243.4, subd. (d)), and attempted sexual penetration (id., §§ 664, 289, subd. (i)). Only the first offense concerns us.

During a summer evening in June 2000, 13-year-old Cynthia B. was visiting her mother's friend, John Shoyer, when defendant arrived at the house. Cynthia went home, but later returned after her father left for work. On the way back to Shoyer's house, Cynthia saw defendant, and he accompanied her. When they arrived at Shoyer's, Cynthia began watching television while defendant and Shoyer talked.

At some point, defendant began to whisper in Cynthia's ear, but she was unable to understand what he said. He told her to follow him to the bathroom and she complied, thinking he was going to tell her something. Once in the bathroom, defendant began fondling her vagina through her clothing. Cynthia was frightened and told him to stop, but he persisted and began touching her breasts. Defendant asked her if he could "suck on her titties," and she replied no. He then stated he would not force her and left the bathroom.

When Cynthia returned to the living room, Shoyer asked her if defendant had touched her; and she said he had. After defendant left, Shoyer and Cynthia went to a neighbor's house and called the police.

Defendant testified in his own behalf and denied ever touching Cynthia.

The jury convicted defendant of lewd and lascivious acts, and the trial court sentenced him to the upper term of eight years in prison. The court also ordered that he submit to a blood test pursuant to Penal Code section 1202.1, subdivisions (a) and (e)(6)(A). On appeal, defendant challenged the testing order as unlawful. The Attorney General contended the issue was forfeited "because it requires a factual determination and was not raised at trial." The Court of Appeal rejected the contention on the basis of both "[t]he failure of the court to make the required finding and the lack of any evidence on the record to support such a finding...." Since "there is nothing in the record to suggest even a possibility that bodily fluids were transferred," it determined the order was "unauthorized." At the same time, however, the court noted "that in the absence of an objection at trial, the prosecutor had no notice that evidence would be needed to overcome a defense objection. Therefore, we strike the AIDS testing order but remand the matter to permit a further hearing on the issue if the prosecutor so requests."

DISCUSSION
I.

As we explained in Stowell, Penal Code section 1202.1 provides in relevant part that "[n]otwithstanding Sections 120975 and 120990 of the Health and Safety Code, the court shall order every person who is convicted of ... a sexual offense listed in subdivision (e) ... to submit to a blood ... test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS)...." (Pen.Code, § 1202.1, subd.(a).) Penal Code section 1202.1, subdivision (e)(6)(A)(iii), includes "[l]ewd or lascivious conduct with a child in violation of Section 288," but with the proviso that testing shall be ordered only "if 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: [¶] ... [¶] For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared." (peN.code, § 1202.1, subd. (e)(6)(A), (B).)1

In this case, as in Stowell, the trial court ordered HIV testing, but did not make an express finding of probable cause.2 Nor did the court enter an appropriate notation in the docket or minute order. The Attorney General argues the failure to object to these omissions precludes appellate review. For the reasons discussed in Stowell, we agree that to the extent the Court of Appeal vacated the testing order because the trial court failed "to make the required finding," it erred in considering defendant's claim that the order was unlawful. (See People v. Stowell, supra, 31 Cal.4th 1107, at pp. 1113-1116, 6 Cal.Rptr.3d at pp. 726-728, 79 P.3d at pp. 1032-1034.)

The Court of Appeal premised its ruling on an additional ground, however: "the lack of any evidence on the record to support such a finding...." This determination implicates more than a recitation of the trial court's probable cause finding or a notation of the finding in the docket or minutes. It raises a fundamental question of sufficiency of the evidence to sustain the order.3 Accordingly, we must decide whether general rules of forfeiture discussed in Stowell apply in this distinct context. (Cf. People v. Scott (1994) 9 Cal.4th 331, 348, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

Notwithstanding the general statutory prohibition against involuntary HIV testing (see Health & Saf.Code, § 120990, subd. (a)), a testing order is authorized under Penal Code section 1202.1, subdivision (e)(6)(A) upon specified conditions: conviction of an enumerated offense and a finding of probable cause. Under the terms of the statute, these prerequisites are equivalent in that both together define the substantive authority of the court to make the order. "Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception." (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17, 92 Cal.Rptr. 704, 480 P.2d 320.) This principle of appellate review is not limited to judgments,4 and we conclude it should apply to a finding of probable cause pursuant to section 1202.1, subdivision (e)(6). Just as a defendant could appeal an HIV testing order, without prior objection, on the ground he had not been convicted of an enumerated offense (see, e.g., People v. Green (1996) 50 Cal.App.4th 1076, 1090, 58 Cal.Rptr.2d 259; People v. Jillie (1992) 8 Cal.App.4th 960, 963, 11 Cal.Rptr.2d 107), he should be able to do so on the ground the record does not establish the other prerequisite, probable cause. We perceive no basis for distinguishing between the two statutory predicates.

The fact that a testing order is in part based on factual findings does not undermine this conclusion. Probable cause is an objective legal standard — in this case, whether the facts known would lead a person of ordinary care and prudence to entertain an honest and strong belief that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. (Cf. People v. Adair (2003) 29 Cal.4th 895, 904, 129 Cal.Rptr.2d 799, 62 P.3d 45 [reasonable cause to establish factual innocence]; People v. Price (1991) 1 Cal.4th 324, 410, 3 Cal.Rptr.2d 106, 821 P.2d 610 [reasonable or probable cause to arrest]; People v. Rhinehart (1973) 9 Cal.3d 139, 151, 107 Cal.Rptr. 34, 507 P.2d 642, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213, 214, 152 Cal.Rptr. 141, 589 P.2d 396 [reasonable cause to entertain suspicion of guilt].) Under the substantial evidence rule, a reviewing court will defer to a trial court's factual findings to the extent they are supported in the record, but must exercise its independent judgment in applying the particular legal standard to the facts as found. (See, e.g., Adair, at pp. 905-906, 129 Cal.Rptr.2d 799,62 P.3d 45 [finding of factual innocence under Pen.Code, § 851.8]; People v. Cromer (2001) 24 Cal.4th 889, 893-894, 103 Cal.Rptr.2d 23, 15 P.3d 243 [finding of reasonable diligence under ...

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