Guevara

The questions before us are (1) whether an adult male who knows that he is a carrier of the antibodies to the human immunodeficiency virus (HIV) and engages in an act of unprotected consensual sexual intercourse with a minor without disclosing this fact commits an aggravated assault in violation of Penal Code section 245, subdivision (a)(1) and (2) whether Penal Code section 12022.85, which imposes a three-year sentence enhancement on individuals who, knowing that they are HIV-positive, have unlawful sexual intercourse (Pen. Code, § 261.5) with minor females, is 'unconstitutional on its face because it punishes “status” rather than conduct or denies equal protection. We conclude that petitioner should not have been held to answer on the Penal Code section 245, subdivision (a)(1) counts. We also hold that Penal Code section 12022.85 is not unconstitutional on its face.

Procedural Background

Petitioner was charged by complaint with four counts of unlawful sexual intercourse (Pen. Code, § 261.5, subd. (d)), one count of failing to register as a sex offender (Pen. Code, § 290) and two counts of assault “with a deadly weapon, to wit, bodily fluids, and by means of force…