People v. Jillie

Citation11 Cal.Rptr.2d 107,8 Cal.App.4th 960
Decision Date22 July 1992
Docket NumberNo. C011236,C011236
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Kevin Richard JILLIE, Defendant and Appellant.

Myron D. Miller, Torrance, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson and Robert R. Anderson, Acting Asst. Attys. Gen., J. Robert Jibson and Janine R. Busch, Deputy Attys. Gen., for plaintiff and respondent.

PUGLIA, Presiding Justice.

Defendant submitted the question of his guilt on the preliminary hearing transcript. He was convicted of attempted forcible sodomy (Pen.Code, § 286, subd. (c)--count I), attempted forcible oral copulation (Pen.Code, § 288a, subd. (c)--count II), and failing to register as a sex offender (Pen.Code, § 290, subd. (b)--count III). The court also found he served a prior prison term (Pen.Code, § 667.5, subd. (b)).

Sentenced to state prison, defendant appeals contending the trial court erred (1) by failing to advise him of the range of permissible punishment before he submitted the matter, (2) by imposing multiple sentences for a single act, and (3) by requiring him to submit to acquired immune deficiency syndrome (AIDS) blood testing. We agree only with defendant's last contention and shall affirm after modifying the judgment accordingly. 1

On January 31, 1991, Cheri Meyers was working in a video store in Red Bluff when defendant approached her, placed a note on the counter and told her, "Do everything I say on this note or your friend's life will be taken. You have twenty seconds to go and lock the door." The note stated, among other things, that if Meyers wanted to live for a long time she was to remove her clothing, orally copulate defendant and submit to being sodomized by him. Meyers began shaking and crying. Meyers's coworker summoned a postman from outside and he detained the defendant until the police arrived.

I & II *

III

Apparently with Penal Code section 1202.1 in mind, the trial court ordered defendant to submit to testing for the presence of AIDS antibodies. 3 Defendant contends this was error.

Penal Code section 1202.1 provides: "(a) Notwithstanding Sections 199.20 4 and 199.22 OF THE HEALTH AND SAFETY CODE5, the court shall order every person convicted of a violation of a sexual offense listed in subdivision (d), whether or not a sentence or fine is imposed or probation is granted, to submit to a blood test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS). Each person tested under this section shall be informed of the results of the blood test. [p] (b) Notwithstanding Section 199.21 of the Health and Safety Code, 6 the results of the blood test to detect antibodies to the probable causative agent of AIDS shall be transmitted by the clerk of the court to the Department of Justice. [p] (c) Notwithstanding Section 199.21 of the Health and Safety Code, the Department of Justice shall provide the results of a test or tests as to persons under investigation or being prosecuted under Section 647f or 12022.85, if the results are on file with the department, to the defense attorney upon request; and the results also shall be available to the prosecuting attorney upon request for the sole purpose of preparing counts for a subsequent offense under section 647f or sentence enhancement under Section 12022.85. [p] (d) For the purposes of this section, sexual offenses include any of the following: [p] (1) Rape in violation of Section 261. [p] (2) Unlawful intercourse with a female under age 18 in violation of Section 261.5. [p] (3) Rape of a spouse in violation of Section 262. [p] (4) Sodomy in violation of Section 286. [p] (5) Oral copulation in violation of Section 288a."

Defendant argues that because the offenses for which he was convicted, to wit, attempted sodomy and attempted forcible oral copulation, are not offenses specified in the statute, the statute is not applicable to him. The People urge the statute is ambiguous and should be construed to include attempts.

We do not find the statute ambiguous. It expressly identifies the offenses within its scope, all of which are completed offenses. Had the Legislature meant to include attempts among the covered offenses, it could easily have done so as it has done in other instances, for example, Penal Code section 667.5, subdivision (c)(12) specifying attempted murder as one of several violent felonies, and Penal Code section 1192.7, subdivision (c)(27) making an attempt to commit any of the specifically listed felonies also a serious felony. Since the statute is clear and unambiguous, it is not necessary to resort to extrinsic aids for construction. (...

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  • People v. Munoz
    • United States
    • California Court of Appeals
    • September 6, 2019
    ......(§ 1170.95, subd. (a), italics added.) The remainder of section 1170.95 likewise speaks only in terms of murder, not attempted murder. Thus, Senate Bill 1437 is not ambiguous; by its plain terms, it does not extend to Munoz's offense of attempted murder. (See People v. Jillie (1992) 8 Cal.App.4th 960, 963, 11 Cal.Rptr.2d 107 ["We do not find the statute ambiguous. It expressly identifies the offenses within its scope, all of which are completed offenses. Had the Legislature meant to include attempts 252 Cal.Rptr.3d 471 among the covered offenses, it could easily have ......
  • People v. Doe
    • United States
    • New York County Court
    • March 29, 1996
    ...... See Govt. of the Virgin Islands v. Roberts, 756 F.Supp. 898 (D.Virgin Islands 1991); Fosman v. State of Florida, 21 Fla.L. Weekly D55, 664 So.2d 1163 (Dist.Ct. of Appeal, 4th District 1995); State v. Parr, 182 Wis.2d 349, 513 N.W.2d 647 (1994); People v. Jillie, 8 Cal.App.4th 960, 11 Cal.Rptr.2d 107 (1992); Johnetta J. v. Municipal Court, 218 Cal.App.3d 1255, 267 Cal.Rptr. 666 (Cal.App. 1st Dist.1990) all of which give extensive analyses of applicable constitutional issues.         In Matter of Juveniles A, B, C, D, E, 121 Wash.2d 80, 847 P.2d ......
  • People v. Carmona, B183388 (Cal. App. 11/20/2008)
    • United States
    • California Court of Appeals
    • November 20, 2008
    ......Green (1996) 50 Cal.App.4th 1076, 1090; People v. Jillie......
  • People v. Butler
    • United States
    • United States State Supreme Court (California)
    • December 1, 2003
    ......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 ......
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