Filed 4/19/ 21 P. v. Rivas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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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. H04 7066 (Santa Clara County Super. Ct. No. C 1761636 )

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 84 7, 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 invo lved 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 in2

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 the re was a bodily fluid transfer capable of
transmitting HIV, as required by Penal Code section 1202.1 , subd ivision (e)(6) . The
Attorney General concedes there is insufficient evidence to support the order and that the
appropriate remedy is to remand the ma tter 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 P en. 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 addi tional 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 re instate the original sentence. If such evidence is not3

presented, the trial court shall strike the HIV testing order and otherwise rei nstat e the

sentence.____________________________________ Grover, J.

WE CONCUR:

____________________________ Greenwood, P. J.

____________________________ Danner , J

.

H047066

- The People v. Rivas