LANDAVERDE

INTRODUCTION

Appellant Saul Alberto Landaverde appeals from his conviction of continuous sexual abuse of a child under the age of 14, in violation of Penal Code section 288.5, subdivision (a), as charged in count 2 of the information. He contends the trial court should have excluded evidence of a prior, uncharged sex offense against a different victim. Appellant also contends the court erred in instructing the jury with CALJIC No. 2.50.01, and that the imposition of the upper term of imprisonment violated his right to a jury trial and due process pursuant to Cunningham v. California (2007) 549 U.S. 270 [ 166 L.Ed.2d 856 , 127 S.Ct. 856 ] (Cunningham). Finally, appellant contends the order requiring his submission to an AIDS/HIV test should be vacated, because the trial court failed to make the required finding of probable cause to believe there was transmission of bodily fluid. We reject appellant’s contentions and affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged with two counts of lewd acts upon a child under the age of 14, one count of continuous sexual abuse of a child under the age of 14 and one count of sodomy upon a person under the age of 14. The…