People v. Butler

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…

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 (ADDS)” “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: [f] . . . [][] 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 (2003) 31 Cal.4th 1107 [ 6 Cal.Rptr.3d 723 , 79 P.3d 1030 ], 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…

The forfeiture rule for sentencing error is a judicially created doctrine invoked as a matter of policy to ensure the fair and orderly administration of justice. (People v. Scott (1994) 9 Cal.4th 331, 351 [ 36 Cal.Rptr.2d 627 , 885 P.2d 1040 ].) Today, the court has chosen not to prevent a defendant from challenging an HIV testing order imposed under Penal Code section 1202.1 for the first time on appeal where the defendant asserts that the order is unsupported by probable cause to believe that bodily fluids capable of transmitting HIV have been transferred from the defendant to the victim. At the same time, the majority cautions that “nothing in our analysis should be construed to undermine the forfeiture rule of People v. Scott, supra, 9 Cal.4th 331, that absent timely objection sentencing determinations are not reviewable on appeal, subject to the narrow exception articulated in People v. Smith (2001) 24 Cal.4th 849 [ 102 Cal.Rptr.2d 731 , 14 P.3d 942 ].” (Maj. opn., ante, at p. 1128, fn. 5.) I join in both conclusions and write separately only to make explicit what is implicit in the majority opinion.

Thus, despite our ruling today, it remains the case that other sentencing…