Thursday, December 19, 2013
C.A. Says Judge Authority to Order AIDS Test for Sexual Assault Suspect
By JUSTIN LEVINE, Staff Writer
A trial court lacked authority in ordering an AIDS test for a defendant originally charged with having sex with a 7-year-old girl, after the defendant pled no contest to lesser offenses, the Sixth Court of Appeal has ruled.
David Joseph Soliz Jr. had been charged with seven counts of sexual intercourse with a child under 10 years of age in violation of Penal Code §288.7(a), and seven counts of forcible lewd acts upon a child in violation of §288(b)(1). He was the boyfriend of the victim’s mother and had been living with the family before his arrest.
A police detective testified that the victim, referred to by the appellate court as Jane Doe, told him that Soliz had “put his private part in her private part” roughly eight times over the course of a two month period. Doe’s grandmother also testified that she noticed that Doe’s vaginal area looked swollen when she was dressing and that her granddaughter told her that Soliz had sexually assaulted her.
During the trial, Doe was unable to recall some of her statements she made to the detective, but confirmed that Soliz had molested her on multiple occasions which caused her pain.
Approximately 10 days after trial began, Soliz agreed to plea no contest to willful child endangerment under Penal Code §273a(a) and dissuading a witness by threat of force in violation of §136.1(c)(1). At that point, all other charges against him were dismissed.
The trial court sentenced Soliz to five years in prison pursuant to his plea, and also ordered him to undergo an AIDS test pursuant to Penal Code §1202.1(6)(a)(iii).
Soliz appealed, arguing that the court had no authority to order AIDS testing in the case, and the Court of Appeal agreed.
Writing for a unanimous court in an unpublished opinion, Justice Nathan Mihara reasoned:
“Among those required to submit to an AIDS test are those persons convicted of lewd conduct of a child in violation of Penal Code section 288, provided that ‘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 the defendant to the victim.’ (Pen. Code, § 1202.1, subd. (e)(6)(A)(iii)). Here, though defendant was charged with lewd or lascivious conduct with a child, he was not convicted of this offense.”
Mihara also rejected the argument that the case should be remanded so that Doe herself could request that Soliz be tested for HIV pursuant to Health and Safety Code §121055. He said the same form of reasoning applied in that §121055 only operates in response to those charged with an enumerated list of offenses, including Penal Code §288, but that Soliz was no longer charged with any such offense by the time of his sentencing hearing.
Mihara said that the victim could have invoked §121055 to request an AIDS test on Soliz at any time in the case until the plea agreement was reached. At that point however, the trial court’s jurisdiction to employ §121055 was effectively extinguished since the other charges against him that would have otherwise allowed §121055 testing had been dropped.
The case is People v. Soliz, H038969.
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