Filed 4/19/21 P. v. Rivas CA6

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE ANTONIO RIVAS,

Defendant and Appellant.

 H047066

 (Santa Clara County

 Super. Ct. No. C1761636)

MEMORANDUM OPINION

We resolve this case by memorandum opinion pursuant to California Standards of 

Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 

97 Cal.App.4th 847, 853–855.)

A jury convicted defendant Jose Rivas of four counts of violating Penal Code 

section 288, subdivision (c)(1) [lewd act with a child 14 or 15 years old]. The 

complaining witness was his step-granddaughter. As described by the trial court at 

sentencing, “Count 1 involved the defendant getting on top of the victim and thrusting his 

lower body onto the victim’s lower body. [¶] Count 2 involved the defendant grabbing 

the victim’s hand and placing it onto his penis[.] [¶] Count 3 involved the defendant 

placing his hand on her vagina and attempting to insert his finger into the victim's 

vagina[.] [¶] Count 4 involved the defendant lifting the victim’s sports bra ... allowing 

him to place his mouth on the victim’s nipple.” Defendant was sentenced to four years in 
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prison, ordered to pay fines and fees, and ordered to submit to HIV testing under Penal 

Code section 1202.1. 

Defendant’s sole contention on appeal is that the HIV testing order is not 

supported by probable cause to believe there was a bodily fluid transfer capable of 

transmitting HIV, as required by Penal Code section 1202.1, subdivision (e)(6). The 

Attorney General concedes there is insufficient evidence to support the order and that the 

appropriate remedy is to remand the matter to the trial court to afford the prosecution an 

opportunity to establish probable cause if it elects to do so. 

Penal Code section 1202.1, subdivision (e)(6) requires that a defendant convicted 

of specified sexual offenses (including a violation of Pen. Code, § 288) be ordered to 

submit to HIV testing if “there is probable cause to believe that blood, semen, or any 

other bodily fluid capable of transmitting HIV has been transferred from the defendant to 

the victim.” (Pen. Code, § 1202.1, subd. (e)(6)(A).) After reviewing the entire record, 

we agree there is insufficient evidence to meet that standard here. (See People v. Butler 

(2003) 31 Cal.4th 1119, 1127 [standard requires facts that “would lead a person of 

ordinary care and prudence to entertain an honest and strong belief that blood, semen, or 

any other bodily fluid capable of transmitting HIV has been transferred from the 

defendant to the victim.”].) We will therefore remand the matter to the trial court to 

allow the prosecution to present additional evidence of bodily fluid transfer. (Id. at 

p. 1129.) 

DISPOSITION

The judgment is reversed and the case remanded for the purpose of allowing the 

prosecution to elect whether to present additional evidence supporting a Penal Code 

section 1202.1 HIV testing order. This disposition does not affect defendant’s 

convictions or prison term. If sufficient evidence to support a testing order is presented 

on remand, the trial court shall reinstate the original sentence. If such evidence is not 
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presented, the trial court shall strike the HIV testing order and otherwise reinstate the 

sentence. 
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P. J. 

____________________________

Danner, J. 

H047066 - The People v. Rivas