Filed 10/19/26 P. v. Bloom CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A174309
v.
GERALD BLOOM, (Sonoma County
Super. Ct. No. SCR765256)
Defendant and Appellant.
A jury convicted defendant Gerald Bloom of multiple counts of
committing lewd acts upon two victims under the age of 14. On appeal,
defendant argues: (1) the trial court erred in failing to instruct, on its own
initiative, on the defense of unconsciousness and (2) insufficient evidence
supported an order requiring him to submit to HIV/AIDS testing. The People
dispute the first point, but concede the second point. We reverse the
HIV/AIDS testing order and remand the matter to give the prosecution the
opportunity to offer evidence to support an HIV/AIDS testing order. In all
other respects, the judgment is affirmed.
BACKGROUND
The Charges
On February 5, 2025, the People filed a second amended information
charging defendant with four counts of committing a lewd or lascivious act
upon a child under the age of 14 by use of force, violence, duress, menace, or
1
fear of immediate and unlawful bodily injury on the victim (Pen. Code,1 § 288,
subd. (b)(1); counts 1 to 4), and four counts of committing a lewd or lascivious
act upon a child under the age of 14 (§ 288, subd. (a); counts 5 to 8). Counts 1
to 3 pertained to John Doe and alleged defendant forcibly placed John Doe’s
hand on defendant’s penis (count 1) and, on two occasions, defendant’s
buttocks (counts 2 and 3). Counts 4 to 8 pertained to Jane Doe. Count 4
alleged defendant forcibly placed Jane Doe’s hand on defendant’s penis. The
remaining counts alleged that defendant touched Jane Doe’s chest on at least
two occasions (counts 5 and 6) and vagina on at least two occasions (counts 7
and 8).
As to each count, the People alleged defendant committed the offenses
against more than one victim who was under the age of 14. (§ 667.61, subds.
(j)(2) & (e).) The People also alleged four aggravating factors. (Cal. Rules of
Court, rule 4.421(a)(3), (7)–(8), & (11).)
The Evidence at Trial
The People’s Evidence
J.W. is the mother of John and Jane Doe and two other children. J.W.
met defendant at a casino where they both worked and they started dating.
Defendant met J.W.’s three eldest children when Jane Doe was about seven
years old and when John Doe was 18 months old.
In August 2013, defendant and the family moved into a two-bedroom
apartment in Rohnert Park. Defendant and J.W. had the same work
schedule at first, but later had alternating schedules. If J.W. was working
but defendant was not, he would take care of J.W.’s children. At some point
J.W.’s friend (Jessica) moved into the apartment with the family. In the fall
1 Undesignated statutory references are to the Penal Code.
2
of 2018, the family, defendant, Jessica, and J.W.’s mother all moved into a
house in Rohnert Park. In the house, Jane Doe shared a room with her
sister; John Doe slept in the bed in the other room with his mother and
defendant.
Defendant had lost his job “a couple of years” before he and the family
moved to the house. After he lost his job, he became the primary caretaker of
the children, as J.W. worked the night shift five days a week. Alexandra
“Bella” Ferrante, another friend of J.W. who would become defendant’s wife,
spent a lot of time with the family, slept over often, and helped out with the
children.
Defendant installed security cameras in the house when he lived there.
It was possible to turn the cameras off by unplugging them or through an
application. Defendant would turn the cameras off while J.W. was at work,
which caused conflict between him and J.W.
Defendant moved out of the house in June 2020. He moved in with
Ferrante, with whom he had started a romantic relationship. At the time
defendant left J.W.’s house, their relationship had been “in a very difficult
spot.” John Doe struggled with the “upheaval” of defendant leaving; Jane
Doe, who often had hidden in her room while defendant was living with the
family, started being more present in the communal areas of the house when
he moved out.
Conduct Involving John Doe (Counts 1, 2, and 3)
John Doe testified that when the family and defendant were living in
the house and John Doe was about five or six years old, he slept in the bed
with his mother and defendant. One night when defendant and John Doe
were both in bed, and before John Doe went to sleep, defendant grabbed John
Doe’s hand and stuck it down defendant’s pants. While doing so, defendant
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was “holding on tight” to John Doe’s wrist, and it hurt John Doe. Defendant
made John Doe’s hand touch defendant’s buttocks. Defendant let go of John
Doe’s hand, and John Doe pulled his hand away “[r]eally quickly,” got up, and
went to wash his hands because he “thought it was gross.” John Doe came
back to the bed and lay down as far away from defendant as he could.
Defendant was not snoring. The same thing occurred in the same manner a
second time, with defendant grabbing John’s Doe hand with “the same
tightness.”
During another incident, when John Doe was six years old, defendant
and John Doe were in the bed together when defendant put John Doe’s hand
down defendant’s pants and made John Doe touch defendant’s penis. It hurt
John Doe when defendant grabbed his hand. John Doe felt “[u]ncomfortable”
and “[w]eirded out.” Defendant was not snoring when this occurred. John
Doe went to the bathroom to wash his hands. John Doe did not go back to the
bed with defendant and, instead, slept on the floor in his sisters’ room
because “it felt safer.” When the incidents occurred, John Doe did not know if
defendant was asleep or not.
When John Doe was about four or five years old, he told his mother
that defendant had been putting John Doe’s hand down defendant’s pants
and making John Doe “ ‘feel the stuff.’ ” When J.W. confronted defendant
about this, he reacted with “disdain and anger,” telling her it was ridiculous
that she would listen to a child. Defendant was “very, very condescending
and scornful” of J.W. taking John Doe seriously and called her names. This
made J.W. question her reality. A few days later, she checked in with John
Doe to see if he was okay, and they never discussed what happened to him
again until 2023.
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Conduct Involving Jane Doe (Counts 4, 5, 6, 7, and 8)
Jane Doe testified that her relationship with defendant started out
well. When the family lived at the apartment, initially Jane Doe, John Doe,
and their sister slept together in the same bed. Either defendant or J.W.
would put the children to bed. Whoever was doing so would typically lie in
the bed with John Doe, then very young, until he fell asleep, and often slept
in the same bed as well.
The family eventually got two sets of bunk beds, which were placed in
the living room of the apartment. Jane Doe and her sister would each sleep
on the top bunk of a set. John Doe slept with J.W. and defendant in the other
room. Eventually, defendant started sleeping in the bottom bunk of Jane
Doe’s sister’s bed.
The family and defendant then moved into a house in Rohnert Park.
Jane Doe and her sister each had a loft bed in the same bedroom.
Starting when Jane Doe was about eight years old, when she shared a
bed with her siblings in the apartment, she would wake up with her pajama
shirt unbuttoned, her drawstring pants untied, or her pajamas off. She
thought “it was weird” and that she just must have been moving around in
her sleep.
On more than one occasion, at both the apartment and the house,
defendant touched Jane Doe’s chest as she lay in bed at night, both over her
clothing and on her bare skin. Defendant would either be in the bed with
Jane Doe or standing next to the bed, which, again, was a top bunk in the
apartment and a loft bed in the house. This occurred repeatedly over time.
Also on more than one occasion at both the apartment and the house,
defendant touched Jane Doe’s vagina. When defendant did this, he would
either be in bed with Jane Doe or standing next to her bed. He touched her
5
vagina both over her clothing and on her skin, moving his hand as he did so.
Jane Doe would try to turn over, but defendant would place his hand back on
her vagina.
In addition, when the family lived in the apartment with the bunk
beds, defendant would ask Jane Doe to sleep on one of the bottom bunks with
him. She would agree because she felt bad telling him no. In one instance,
Jane Doe fell asleep in the bottom bunk and awoke to her hand on
defendant’s penis as he lie in bed with her. Defendant had his hand over
Jane Doe’s and was “squeezing” her hand. Jane Doe believed defendant was
awake because the way he was holding her hand “felt intentional.” Jane Doe
was confused. She rolled over to lie on top of her hands before falling back
asleep.
When the family lived in the house, Jane Doe found defendant’s phone
in a cabinet in the bathroom recording her while she showered. Jane Doe
knew it was defendant’s phone because he was the only one in the home that
owned an iPhone. Jane Doe found the phone after getting out of the shower.
She was “scared and confused,” and tried to delete the video but did not know
how to use that type of phone. After this, Jane Doe would check the
bathroom for a phone before showering. Additionally, on more than one
occasion at the apartment and at the house, Jane Doe awoke to a camera
flash while defendant was touching her chest or vagina.
After the sexual abuse started, Jane Doe avoided defendant.
Defendant continued to sexually abuse Jane Doe until he left in 2020.
In 2022, Jane Doe told her girlfriend about the sexual abuse. When
Jane Doe told her girlfriend, she “was crying, shaking, just very, very, very
shooken [sic] and upset.” Jane Doe had thought about telling someone before
but had been too scared to do so because it “was overwhelming to think
6
about” and she “didn’t want to think about it being real or having actually
happened.”
In July 2023, Jane Doe went to her mother and handed her a letter
saying, “ ‘Mom, please don’t hate me,’ ” before describing the trauma that she
experienced from defendant. After J.W. read the letter, she and Jane Doe
talked. A couple hours later, J.W. told Jane Doe that she would need to
report the abuse to the police. Jane Doe agreed that J.W. should report the
crime. J.W. went to the police the next day and they set up a time for police
officers to interview Jane Doe. Jane and John Doe were also interviewed by
the Family Justice Center.
Police Search of Defendant’s Property
Police officers searched defendant’s house. They recovered two
cellphones and two laptop computers, but a search of the devices did not yield
anything of evidentiary value. All of the data was from after March 2020.
Officers also searched defendant’s email and an iCloud account. The iCloud
account had been created the day after defendant moved out of the house.2
Defense Evidence
Character Witnesses
Bella Ferrante met J.W. through work and they became friends Over
time, Ferrante began spending almost every day at J.W. and defendant’s
residence and had a key to the apartment. At times she was responsible for
taking care of the children. Ferrante never noticed anything unusual or
inappropriate among defendant and the children.
2 The prosecution also presented expert testimony regarding Child
Sexual Abuse Accommodation Syndrome (CSAAS), which, despite its name of
“syndrome,” is actually a “tool” used “for understanding or attempting to
explain behaviors commonly observed among kids who have experienced
sexual abuse.”
7
Ferrante testified that when defendant lived at the apartment, he did
not sleep in the bunk beds but instead slept outside on the balcony. She did
not believe defendant could fit in the bunk beds. When the family moved to
the house, defendant slept on a bean bag chair.
About a year after defendant moved out of the house, he and Ferrante
got married. Ferrante testified that defendant “talks a lot in his sleep,”
moved around a lot, and would do things such as sit up or reach for her.
Defendant’s mother-in-law, stepfather, and stepsister had known
defendant for several years and never saw him do anything inappropriate
with children.
Defendant’s Testimony
Defendant testified he first met J.W. when they worked together at a
casino. They then rented an apartment together, where they lived with
J.W.’s children. Defendant spent a lot of time doing activities with the
children, particularly after he stopped working at the casino.
When the family first moved into the apartment, defendant and J.W.
had their own room and the children slept in a king-sized bed in another
room. Defendant testified he never slept in the room with the children.
Eventually the family got two sets of bunk beds for the children. Jane
Doe and her sister slept on the top bunks, and John Doe was supposed to
sleep on one of the bottom bunks. John Doe, however, preferred to sleep with
his mother instead of in the bunk beds. Defendant’s son from a prior
relationship was supposed to stay with the family and sleep on one of the
bottom bunks. However, it turned out that defendant could not have his son
at the apartment anymore, which “put a strain on everything.” In “protest[ ]”
defendant moved his sofa bed outside on the patio and slept there.
By the time the family had the bunk beds, the girls were old enough to
8
go to bed when told and did not need anyone to put them to bed. Defendant
testified that he never slept in the bunk beds and that he never lay down in
them because he built them and was “aware of their limitations.” He also
testified that he never slept on the floor of the room where the children were
sleeping.
Defendant moved with the family into the house in Rohnert Park.
Ferrante stayed with the family about “95 percent of the time.” J.W. worked
the graveyard shift, and defendant would frequently take the children to and
from school.
Defendant installed surveillance cameras in the house so that he and
J.W. would be able to check on the children and J.W. mother’s whenever
defendant and J.W. were not home. Defendant testified he never unplugged
the cameras and never left his phone in the bathroom to record people.
Defendant bought a new phone when he moved out of the house and
did not give J.W. his new phone number. He was surprised when officers
arrested him three years later.
Defendant testified he “not once” touched Jane or John Doe
inappropriately.
Defendant had been told by Ferrante and J.W. that he “move[d] around
a lot,” “thrashe[d],” and tried to “snuggle” in his sleep.
Defendant testified that when J.W. confronted him about what John
Doe had told her, she had told defendant that John Doe woke up to defendant
with defendant’s hand in his own boxers. Defendant denied touching John
Doe. He stated that what John Doe said happened was not something they
needed to worry about, and he and J.W. never spoke about it again.
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Dr. Kastl
Dr. Albert Kastl, a doctor of psychology, evaluated defendant through
interviews and testing to determine whether defendant had pedophilic traits
or tendencies. Dr. Kastl did not find anything that suggested defendant had
pedophilic behavior.
The People’s Rebuttal
Two weeks after Jane Doe had been interviewed by the Family Justice
Center regarding the incidents, police officers had her do a “pretext call” to
defendant, the goal of which was “to establish specific acts that occurred that
[were] under investigation in the case.” No officers had contacted defendant
prior to the call. A recording and a transcript of the phone call were admitted
into evidence.
During the call, Jane Doe told defendant that when she was younger,
he would touch her under her shirt and pants when he believed she was
asleep. Jane Doe told him, “I was a little kid and I thought I was supposed to
trust you. I just, I want to know why.” Defendant responded, “I don’t
remember” and “had a lotta [sic] problems doing stuff while [he] was
sleeping.” He claimed that he did not “sleep with anybody to make sure that
nothing like that ever happens. ‘Cause [he had] been told stuff and [he did
not] remember any of it.’ ”
Jane Doe told defendant that he touched her and took her clothing off
her, and that it had happened for years. Defendant continued to claim he did
not remember any of these things happening, but told Jane Doe, “If this is
what happened, I am so sorry.” Jane Doe told defendant that “John Doe
remembers too,” but defendant continued to claim he did not remember
anything and had “problems with this when [he] sle[pt] . . . .” When Jane Doe
asked defendant what kind of problems he was referring to, he just continued
10
saying, “I don’t know. I . . . don’t remember anything . . . . I don’t know what
happens in my sleep.” Jane Doe, however, pointed out, “You weren’t asleep,”
and that he would touch her while standing up next to her bunk bed and loft
bed. Again, defendant stated he did not remember any of it and that he was
“so sorry.”
Jane Doe asked defendant why he was apologizing to her. Defendant
told her, “I have to believe you. I don’t remember. . . . I don’t think you would
lie. But I don’t remember anything. None of it.” Jane Doe asked defendant
to be honest and defendant continued to apologize and say he did not
remember any of the events and “was not awake for these.” Jane Doe,
however, responded, “[T]hat’s not possible, you were awake.” Defendant then
asked her how she got his phone number, after which he said, “I wish there
was something I could tell you but I don’t remember anything like this.”
Defendant told Jane Doe that he was “crushed” when her mother told
him something about John Doe. He said that John Doe told his mother that
defendant would have his clothes off or touch himself when he was asleep,
but that he did not remember any of it.
Jane Doe brought up photographs that defendant took, and he told her
he did not have any pictures. Jane Doe also told defendant he cheated on her
mother, to which he responded that they “separated and were living in
different rooms and different lives.” Jane Doe said that was when he would
sleep on the floor in her room under her loft bed. Defendant stated he did not
remember sleeping in her room.
When Jane Doe asked defendant if he thought she was “making it up,”
he replied, “No, I don’t.” Jane Doe began crying, told defendant she had been
suicidal because of his actions and could not go a “day without feeling
disgusted by [herself] because of [defendant].” Defendant said he wished he
11
could change “whatever it is that happened,” but that he did not remember.
Defendant continued to apologize and claim he did not remember anything,
then told Jane Doe he needed to go and asked her not to call him again. Jane
Doe told defendant she hated him. Defendant responded, “I get it. I
understand and I’m sorry. I’m so sorry.”
During the call, Jane Doe was “highly anxious[ ,] . . . visibly shaking[,]
and . . . crying at multiple points.” Jane Doe also “cried very hard for about
two minutes right after” the call.
At trial, the prosecutor questioned defendant about his statements
during the pretext call. Defendant acknowledged that when Jane Doe
confronted him about the sexual abuse, he said several times during the
phone call that he did not remember doing it. When the prosecutor asked
defendant, “So didn’t you tell Jane Doe that you’re not awake for these things
occurring?” defendant testified, “What I said was that I have been told that
I—that I flail in my sleep, and, no, I don’t remember doing any of this.”
Defendant also testified that he believed he told Jane Doe at the end of the
call that he “did not do that,” referring to touching Jane Doe.
The Verdict and the Sentence
On March 6, 2025, the jury found defendant guilty of all counts charged
and found true all of the special allegations. In a bifurcated proceeding, the
trial court found true three of the four circumstances in aggravation (Cal.
Rules of Court, rule 4.421(a)(3), (8), & (11)).
On July 21, the trial court sentenced defendant to an aggregate term of
200 years to life in state prison, consisting of 25 years to life for each count.
The court ordered defendant to submit to a blood test for HIV pursuant to
section 1202.1.
This appeal followed.
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DISCUSSION
The Trial Court Was Not Required to Instruct the Jury on the
Defense of Unconsciousness
Defendant argues the trial court erred in failing to instruct the jury on
the defense of unconsciousness even in the absence of a request of the
instruction. We disagree.
“[A] defendant has a right to have the trial court, on its own initiative,
give a jury instruction on any affirmative defense for which the record
contains substantial evidence . . . unless the defense is inconsistent with the
defendant’s theory of the case.” (People v. Salas (2006) 37 Cal.4th 967, 982
(Salas); accord, People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers) [“A trial
court must instruct on unconsciousness on its own motion if it appears the
defendant is relying on the defense, or if there is substantial evidence
supporting the defense and the defense is not inconsistent with the
defendant’s theory of the case.”].) Substantial evidence in this context means
“evidence sufficient for a reasonable juror to find in favor of the defendant.”
(Salas, supra, 37 Cal.4th at p. 982; accord, People v. Barton (1995) 12 Cal.4th
186, 201, fn. 8 [substantial evidence means the evidence must be sufficient to
“ ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury
could find persuasive.”].) “In determining whether the evidence is sufficient
to warrant a jury instruction, the trial court does not determine the
credibility of the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ”
(Salas, at pp. 982–983.) Thus, “a trial court has no obligation to instruct sua
sponte on a defense supported by ‘minimal and insubstantial’ evidence.”
(People v. Barnett (1998) 17 Cal.4th 1044, 1152.) “ ‘ “Doubts as to the
sufficiency of the evidence to warrant instructions should be resolved in favor
of the accused.” ’ ” (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
13
On appeal, we review de novo the question whether the trial court
erred in failing to instruct on a defense. (See People v. Oropeza (2007) 151
Cal.App.4th 73, 78; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
Turning to the law on unconsciousness, we “presum[e] that a person
who appears to act in an apparent state of consciousness is conscious.
[Citation.] Therefore, the burden is on a criminal defendant to produce
evidence rebutting this presumption of consciousness.” (People v. James
(2015) 238 Cal.App.4th 794, 804 (James).)
“[U]nconsciousness, if not induced by voluntary intoxication, is a
complete defense to a criminal charge.” (People v. Halvorsen (2007)
42 Cal.4th 379, 417 (Halvorsen), citing § 26, subd. Four.) “To constitute a
defense, unconsciousness need not rise to the level of coma or inability to
walk or perform manual movements; it can exist ‘where the subject
physically acts but is not, at the time, conscious of acting.’ ” (Halvorsen,
supra, 42 Cal.4th 379 at p. 417.) “[I]n cases of unconsciousness caused by
blackouts, involuntary intoxication, sleepwalking, or even epilepsy, an
instruction is warranted where there is substantial evidence.” (James, supra,
238 Cal.App.4th at p. 805 [and cases cited].) However, a defendant’s inability
to recall a particular act, standing alone, is insufficient to warrant an
unconsciousness instruction. (Rogers, supra, 39 Cal.4th 826, 888; People v.
Heffington (1973) 32 Cal.App.3d 1, 10 [there is no “ineluctable rule” that a
defendant’s inability to remember supplies an evidentiary foundation for an
unconsciousness instruction].)
Applying these principles, we conclude the trial court did not have a
sua sponte duty to instruct the jury on the defense of unconsciousness.
In this case, there was no substantial evidence to justify an instruction
on the defense of unconsciousness. We start with the “presumption that a
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person who appears to act in an apparent state of consciousness is conscious.”
(James, supra, 238 Cal.App.4th at p. 804.) The People argue, and we agree,
that the prosecution presented substantial evidence to support the
application of this presumption. As now explained, the purposive nature of
defendant’s conduct as testified to by Jane and John Doe suggests that
defendant was conscious of his actions during the course of the offenses. (Cf.
Halvorsen, supra, 42 Cal.4th at p. 418 [“The complicated and purposive
nature of [defendant’s] conduct . . . makes clear that he did not lack
awareness of his actions during the course of the offenses”].)
In John Doe’s case, although he did not know whether defendant was
asleep, he testified that on the two occasions when defendant grabbed John
Doe’s hand, stuck it down defendant’s pants, and placed it on defendant’s
buttocks, defendant tightly held on to John Doe’s hand to the point it hurt
him. Similarly, when defendant made John Doe’s hand touch defendant’s
penis during another incident, it hurt John Doe when defendant grabbed his
hand.
In Jane Doe’s case, the majority of the incidents happened while she
slept on the top bunk bed in the apartment or in her loft bed in the house.
Defendant walked up to and stood next to her bed, reached his hands up over
the railing of the bed and touched her chest and vagina, both over her
clothing and on her bare skin. Defendant moved his hand as he touched Jane
Doe’s vagina. And when she tried to turn over, defendant would just “put
[his] hands” back onto her vagina. During the incident in which Jane Doe
and defendant were in the bottom bunk together, defendant grabbed her
hand, placed it into his pants, and then placed it around his penis. Jane Doe
testified defendant was “squeezing” her hand, and she believed defendant to
be awake because the force of his hand on hers “felt intentional.”
15
The evidence just described supports the conclusion that defendant
appeared conscious when he touched the victims and/or had them touch him.
Thus, we presume he was conscious when he committed those acts. (James,
supra, 238 Cal.App.4th at p. 804.) Consequently, defendant was required to
produce evidence rebutting this presumption of consciousness. (Ibid.) He
failed to do so.
To begin with, defendant never testified that he was asleep, and thus
unconscious, during any of the incidents of abuse. He also did not present
any medical evidence or expert testimony regarding his mental state at the
time of the events.3 Defendant relies on certain items of evidence presented
during the People’s case to argue there was substantial evidence to warrant
an unconsciousness instruction, but none of them supports his position.
First, defendant relies on his statements during the pretext call with
Jane Doe, arguing that he “repeatedly told Jane Doe he had no memory of
ever touching her and explained that if any touching occurred, he was asleep
at the time,” and that “he had a history of touching people in his sleep.” As
explained below, defendant’s reliance on his pretext call statements is
unavailing, given that at trial he failed to adopt their truth and in some
3 We do not hold that expert testimony is always necessary to support an
unconsciousness defense. But as defendant acknowledges in his reply brief,
“expert testimony can certainly strengthen that defense.” And indeed, as the
People note, cases have held that an unconsciousness instruction was
warranted where there was expert testimony to establish the defendant was
unconscious. (See, e.g., James, supra, 238 Cal.App.4th at p. 810 [expert
medical testimony “that [the defendant] had suffered from a seizure disorder
since age 17 and was experiencing a severe psychotic episode on [the date of
the crime]” such that he was unaware of what happened during the incident];
People v. Freeman (1943) 61 Cal.App.2d 110, 114 [four physicians testified
that defendant lost consciousness due to epilepsy at the time he drove his car
into the victim’s vehicle].)
16
instances, contradicted them. Accordingly, defendant’s own statements and
testimony as to whether he was awake during the incidents were at best
equivocal and uncertain, and thus insubstantial.
During the pretext call, defendant told Jane Doe, “I don’t know. . . . I’m
not awake for these.” However, Jane Doe responded, “that’s not possible, you
were awake.” She also said, “You weren’t asleep. You would stand by my
bed. I didn’t have a bed on the floor. I had a loft bed.” Defendant did not
deny Jane Doe’s statements; rather, he simply repeated that he did not
remember anything. Moreover, when confronted at trial with his pretext call
statements, defendant failed to adopt their truth. Specifically, when the
prosecutor asked defendant, “So didn’t you tell Jane Doe that you’re not
awake for these things occurring?” defendant did not answer in the
affirmative; instead, he testified, “What I said was that I have been told that
I—that I flail in my sleep, and, no, I don’t remember doing any of this.”
Defendant’s reliance on his pretext call statements claiming not to
remember the events is also misplaced. In the first place, a defendant’s
inability to remember a particular act is insufficient to supply the evidentiary
foundation to warrant an instruction on unconsciousness. (People v. Rogers,
supra, 39 Cal.4th at p. 888; People v. Heffington, supra, 32 Cal.App.3d at p.
10.) Further, although at one point at trial defendant acknowledged
previously telling Jane Doe that he did not recall touching her, other times
during his testimony, he apparently took the contrary position that he did not
commit the acts at all. For example, when the prosecutor asked defendant,
“So you obviously told her, absolutely, no way, I never touched you?”
defendant testified, “Yeah, for the most . . . part.” And when the prosecutor
asked defendant, “And, in fact, you never actually said, I did not do that, did
you?” to which defendant replied that he “believe[d] [he] did at the end of the
17
phone call.” Such testimony was inconsistent with his statements during the
pretext call. The transcript of the conversation discloses that defendant did
not deny touching Jane Doe; he only denied remembering doing so.
Likewise unavailing is defendant’s reliance on his statements that he
had a history of moving around or touching other people in his sleep.
Evidence that defendant had been told by others that he “moved around a
lot,” “thrashed,” or tried to “snuggle” with others in his sleep as a general
matter does not establish or support a reasonable inference that he was
asleep during the specific incidents of abuse alleged in this case.
Thus, as a whole, defendant’s own statements and testimony regarding
whether he was unconscious at the time of the offenses were at best
equivocal, uncertain, and therefore insubstantial.
Defendant next relies on Jane Doe’s testimony that defendant was a
“deep sleeper” and that “during one of the alleged acts she only ‘thought’ [he]
was awake, indicating that she was not certain.” But defendant fails to
explain how, and we are not persuaded that, Jane Doe’s belief, as opposed to
absolute certainty, that defendant was awake when he placed her hand on
his penis was sufficient to raise a reasonable doubt regarding his
consciousness. Defendant’s characterization of Jane Doe’s testimony ignores
the full context of her testimony, which described the circumstances that led
her to believe that defendant was awake. Those circumstances included the
fact that defendant was “squeezing her hand” and that the force of his hand
on hers “felt intentional.” Even if Jane Doe had not been fully certain
defendant was awake, the purposive nature of defendant’s actions
nonetheless permitted the jury to infer that defendant was conscious at the
time of the incident.
Lastly, defendant relies on John Doe’s testimony that he did not know
18
whether defendant was awake at the time each act of molestation occurred.
However, the fact that John Doe did not know whether defendant was awake
does not constitute evidence, much less substantial evidence, that defendant
was asleep. (See People v. Superior Court (Valenzuela) (2021) 73 Cal.App.5th
485, 498 [“ ‘[a]n absence of evidence is not the equivalent of substantial
evidence.’ ” [Citation.] ‘No finding can be predicated on the absence of
evidence.’ ”].) Further, as with Jane Doe’s testimony discussed in the
previous paragraph, defendant ignores John Doe’s testimony describing the
circumstances of the sexual acts: each time defendant grabbed John Doe’s
hand, stuck it down defendant’s pants, and placed it on defendant’s buttocks
or penis, defendant was grabbing John Doe’s hand with enough force to hurt
him. These circumstances permitted the jury to infer that defendant was
conscious during the incidents.
In sum, evidence of defendant’s unconsciousness during the alleged
acts of abuse was at best minimal, uncertain, and speculative. Because
defendant did not present evidence sufficient to raise a reasonable doubt in
the minds of the jury as to whether he was unconscious during the offenses,
the trial court did not err in failing to instruct the jury on unconsciousness.
(See Salas, supra, 37 Cal.4th at p. 982.)
Moreover, defendant did not apparently rely on a defense of
unconsciousness at trial, and such a defense arguably was inconsistent with
the defense’s trial theory, which was that defendant did not commit any of
the acts of abuse at all. As discussed above, defendant did not testify that he
was asleep at the time of the events, but only that he had previously told
Jane Doe during the pretext call that he did not recall the events and that he
had moved around or touched others in his sleep. He also testified that he
never touched Jane and John Doe inappropriately; did not put Jane Doe to
19
bed; and did not sleep in the same room as her, let alone the same bed.
Additionally, none of the defense’s experts testified defendant was
unconscious during the incidents. Nor did defense counsel articulate a theory
of unconsciousness during argument. Rather, defense counsel focused his
remarks on reasonable doubt, motive, Jane Doe’s credibility, and John Doe’s
mistaken recollection to support the theory that the acts simply did not occur.
For example, during closing argument defense counsel argued: “And at
some point you’re wondering is where does this all come from? Did it really
come from something that happened in the houses? Did it come from
somewhere else? Was it a dream? Where does all these things come?”
Regarding the pretext call, defense counsel argued that Jane Doe “hate[d]”
defendant and “just kept pushing him to admit to something that he didn’t
do.” (Italics added.) Counsel continued, “And he tried to tell her honestly, I
didn’t do anything.” (Italics added.) Defense counsel further argued:
“[D]uring the time that [defendant] was staying there, just remember, when
a lot of . . . these accusations were made, he was working the exact same shift
as the mother for maybe four years. They were only in the apartment for five
years, I think, but they were working on the same shift. They were working
the same hours. [J.W.] was putting the kids to bed every time.” And counsel
went on: “you got to hear from [defendant]. You got the hear about how
much he cared for the kids. You got the [sic] hear that, hey, I didn’t do this.
[¶] You got the [sic] hear from him say I couldn’t sleep on that bottom bunk if
I want to. I’m six-foot-four or whatever. How am I going to sleep on the
bottom bunk of a twin bed? And then have Jane Doe come down to the twin-
size bed? Which just happens to be right under her sister, which you didn’t
hear from her sister either. There’s just things here that don’t make any
sense, and that’s the problem with this particular case is it doesn’t make any
20
sense on how the things were happening.” (Italics added.)
As the People summarize it: “[defendant’s] defense at trial was that
John and Jane Doe were either outright lying or had altered memories when
they claimed that [defendant] sexually assaulted them, and that the alleged
acts did not occur. This was made clear throughout defense counsel’s closing.
In contrast, if [defendant] employed an unconsciousness defense then,
necessarily, John and Jane Doe were telling the truth and the assaults
occurred, but [defendant] was so unconscious as to be unaware of his actions.
It is not possible for it to be true that there was no sexual contact while
simultaneously there was sexual contact. Therefore, the two defense[s] are in
direct contradiction.”
For all of the above reasons, we conclude the trial court did not err in
not instructing on the defense of unconsciousness on its own initiative.
But assuming the trial court erred, the omission was harmless beyond
a reasonable doubt, and there is no reasonable probability the error affected
the result. (See Salas, supra, 37 Cal.4th at p. 984 [Supreme Court has “not
yet determined what test of prejudice applies to the failure to instruct on an
affirmative defense”].)
As the People note, an error in omitting an instruction on a possible
defense is harmless when the factual question posed by that instruction was
necessarily resolved adversely to the defendant under other, properly given
instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96, citing
People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled in part on other
grounds in People v. Breverman (1998) 19 Cal.4th 142, 149, and disapproved
on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12;
accord, People v. Wright (2006) 40 Cal.4th 81, 93 [the absence of an
instruction on a defense is not prejudicial if “ ‘the factual question posed by
21
the omitted instruction was necessarily resolved adversely to the defendant
under other, properly given instructions. In such cases the issue should not
be deemed to have been removed from the jury’s consideration since it has
been resolved in another context, and there can be no prejudice to the
defendant since the evidence that would support a finding [favorable to the
defendant] has been rejected by the jury.’ ”]; cf. People v. Maury (2003)
30 Cal.4th 342, 422 [“Although defendant was deprived of the complete
defense of duress, he was permitted to use the same underlying facts to
mitigate the crime. Thus, in finding defendant guilty of murdering [the
victim], the jury necessarily rejected defendant’s duress defense.”].)
Here, although the trial court did not instruct on unconsciousness, it
nevertheless gave instructions that afforded the jury the opportunity to
consider how evidence of defendant’s sleep habits, his pretext call statements
that he did not remember the incidents, and any other evidence regarding
whether he was asleep during them affected his ability to form the requisite
intent. The jury was told that to convict defendant of the crimes of
committing a lewd act upon a child under the age of 14, and of committing a
lewd act upon a child under the age of 14 by force or fear, it had to find that
defendant “willfully” touched the child’s body or caused the child to touch
defendant’s body, and that “[s]omeone commits an act willfully when he or
she does it willingly or on purpose.” (§ 288, subds. (a), (b)(1); see CALCRIM
Nos. 1110, 1111.) (Italics omitted.) The jury was also instructed that
defendant had to commit the acts with the “intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of himself or the child.”
(Ibid.)
After hearing all of the evidence, the jury found defendant guilty of all
counts and found true the associated allegations that he committed the
22
offenses against more than one victim under the age of 14. By finding
defendant acted with the necessary intent, the jury necessarily resolved the
question whether defendant acted consciously against the victims. Indeed,
defendant could not have acted with the “intent of ‘arousing, appealing to or
gratifying the lust, passions or sexual desires of himself or the child’ ” if he
did not act consciously. Thus, defendant suffered no prejudice from the trial
court’s failure to instruct on unconsciousness. (See People v. Coffman and
Marlow, supra, 34 Cal.4th at p. 96; People v. Wright, supra, 40 Cal.4th at p.
98.)
Furthermore, as detailed above, there was overwhelming evidence
supplied by the testimony of Jane and John Doe to suggest that defendant
was conscious at the time of the incidents of abuse. On the other hand, as
also discussed above, evidence that defendant was asleep at the time of the
offenses was uncertain and insubstantial. Given the overwhelming evidence
that defendant was conscious during the offenses, and the weak evidence to
the contrary, any error in failing to instruct on unconsciousness was
harmless.
Defendant’s contentions to the contrary are unpersuasive. For
example, he asserts, “Jane Doe acknowledged that [defendant] was a deep
sleeper and suggested [he] may have been asleep during at least one
incident” and that John Doe “could not tell whether [defendant] was asleep or
awake during the alleged acts committed against him.” Defendant then
argues that “[i]f the victims themselves could not say beyond a reasonable
doubt that [defendant] was awake, then a properly instructed juror could not
possibly have made that finding without venturing into the realm of
speculation. For that reason alone, the trial court’s instructional error was
prejudicial.” We disagree. Regarding Jane Doe’s testimony, she did not
23
suggest, as defendant claims, that he was asleep during the incident to which
he refers; what Jane Doe actually testified was, “I think he was awake
because his hand was on my hand and . . . it felt intentional.” As for John
Doe’s testimony, we have already explained that the fact he did not know
whether defendant was asleep did not preclude the jury from finding, based
on other evidence in the record, that defendant was conscious during the
incidents involving John Doe.
Defendant also relies on the fact that during deliberations the jury
asked for the court reporter to read J.W.’s and Jane Doe’s testimony back to
them a second time, and for the court to provide “more clarity on force,” to
argue that the jury’s “deliberations in this case were close.” This argument is
unavailing. In its notes to the court, the jury wrote, “we agreed it was
physically forced,” but the jury asked the court to explain what “force mean[s]
in the law” and to provide examples. These questions do not at all indicate
the jury struggled with defendant’s consciousness, intent, or mental state.
Defendant further contends that a “reviewing court ‘should not find the
error harmless’ if the record contained ‘evidence sufficient to support a
contrary finding’ absent the instructional error.” And defendant maintains
that the record here contained such evidence to support a finding that
defendant “was asleep at the time of the alleged acts.” (AOB 29)~ As we have
already discussed, the record does not contain “evidence sufficient for a
reasonable juror to find” defendant was asleep, and thus unconscious, during
the offenses. (Salas, supra, 37 Cal.4th at p. 982.)
In short, the trial court did not err in failing to instruct the jury on
unconsciousness, and assuming it did, any such error was harmless under
any standard.
24
Insufficient Evidence Supported the Order Requiring
Defendant to Submit to HIV/AIDS testing
Defendant also argues the trial court erred in ordering him to submit to
a blood test for HIV/AIDS pursuant to section 1202.1 because there was
insufficient evidence of probable cause to require the testing. The People
concede this point. We accept the People’s concession.4
Section 1202.1 requires the trial court to “order every person who is
convicted of . . . a sexual offense listed in subdivision (e) . . . to submit to a
blood . . . test for evidence of antibodies to the probable causative agent of
acquired immune deficiency syndrome (AIDS) . . . .” (§ 1202.1, subd. (a).)
The term “sexual offense” includes “[l]ewd or lascivious conduct with a child
in violation of Section 288” (§ 1202.1, subd. (e)(5)(A)(iii)), but the statute
provides that testing shall be ordered only “if the court finds that 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 . . . .” (Id., subd. (e)(5)(A).) The statute directs a court ordering such
testing to “note its finding on the court docket and minute order if one is
prepared.” (Id., subd. (e)(5)(B).)
Although the trial court did not articulate its reasons for the HIV/AIDS
testing order, we will presume an implied finding by the court of probable
4 Defendant did not object below to the HIV/AIDS testing order. In
general, “absent an objection in the trial court, a defendant forfeits appeal of
any deficiency in the statutorily required finding supporting an HIV testing
order pursuant to . . . section 1202.1 . . . .” (People v. Stowell (2003)
31 Cal.4th 1107, 1117, fn. omitted.) However, as the People point out,
because mandatory HIV/AIDS testing is “strictly limited by statute and Penal
Code section 1202.1 conditions a testing order upon a finding of probable
cause, a defendant may challenge the sufficiency of the evidence even in the
absence of an objection.” (People v. Butler (2003) 31 Cal.4th 1119, 1123
(Butler).)
25
cause to support the order—i.e., that “the facts known 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.” (Butler, supra, 31 Cal.4th at
p. 1127.) The parties agree that the evidence was insufficient to support that
implied finding. Defendant’s conduct underlying his convictions consisted of
him touching Jane Doe’s chest and vagina and John Doe’s buttocks with his
hands, as well making the victims touch defendant’s penis or buttocks. But
as the People acknowledge, there was no indication in the record that
defendant was touching Jane and John Doe in a way that would transmit
bodily fluids. Thus, we agree with the parties there was insufficient evidence
to support the court’s order for HIV/AIDS testing.
The question, then, is the appropriate remedy. Defendant argues we
should strike the HIV/AIDS testing order. The People, however, contend the
matter should be remanded to give the prosecution the opportunity to offer
additional evidence, if any, to support an HIV/AIDS testing order. We agree
with the People that a remand is warranted. As our Supreme Court
explained, “section 1202.1 is part of a broader statutory scheme of health and
safety legislation intended to combat the further spread of HIV infection and
promote prompt medical treatment for those already infected.” (Butler,
supra, 31 Cal.4th at p. 1128.) “Given the significant public policy
considerations at issue, we conclude it would be inappropriate simply to
strike the testing order without remanding for further proceedings to
determine whether the prosecution has additional evidence that may
establish the requisite probable cause. . . . [I]t would be unfair to both the
victim and the public to permit evasion of the legislative directive if evidence
exists to support a testing order.” (Id. at p. 1129.) Accordingly, we will
26
vacate the HIV/AIDS testing order but remand the matter to permit a further
hearing on the issue if the prosecution so requests.
DISPOSITION
The trial court’s HIV/AIDS testing order is reversed and the matter is
remanded to the trial court with directions to permit a further hearing on the
issue if the prosecution so requests, including the opportunity to offer
evidence to support an HIV/AIDS testing order. In all other respects, the
judgment is affirmed.
27
RICHMAN, ACTING P. J.
We concur.
MILLER, J.
DESAUTELS, J.
(A174309N)
Retired Associate Justice of the Court of Appeal, First Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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