Published October, 2015
People v. Daniels, 2015 Cal. App. Unpub. LEXIS 4498 (Cal. 3d Dist. Ct. App., June 25, 2015)
People v. Daniels, 2015 Cal. App. Unpub. LEXIS 4498 (Cal. 3d Dist. Ct. App., June 25, 2015) (not officially published, not to be cited or relied upon)
CALIFORNIA – California trial courts persist in ordering HIV testing for defendants convicted of sexual abuse of children, regardless of whether the evidence shows acts that could transmit HIV. Under California law, a court may order HIV testing for such a conviction only "if the court finds 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." In this case, a higher court reversed the trial court’s HIV testing order holding that the nature of defendant’s misconduct would not have subjected anyone to the risk of HIV transmission.
Wrote Justice Murray: “Here, the trial court made no express findings of probable cause but merely noted the probation report did not recommend such a test and asked for the parties’ positions. The prosecutor, after conferring with the only victim present at the sentencing hearing, asked for the test. Thereafter, the trial court asked if the matter was submitted. Defense counsel replied, ‘I would just note that the nature of the conduct would not have subjected anyone to that risk and submit it.’ The trial court ordered the test. As defense counsel noted, nothing in the record suggests any possibility of transmission of defendant’s bodily fluids to the victims. Further, the court made no express finding of probable cause and we see nothing supporting an implied finding. Accordingly, on this record the testing order is invalid.” The defendant had asked that all mention of HIV testing be stricken from the trial record, and that anybody to whom test results had been disseminated be required to destroy them. The court agreed to the former, but noted that it had no jurisdiction to issue orders to anyone not a party to the case. (An excerpt from the summary provided by Summer 2015 Lesbian/Gay Law Notes).
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