P. v. Langley
Appellant Robert G. Langley pled no contest to a violation of Penal Code[1]section 288.5, subdivision (a) (continuous sexual abuse of a child) and admitted he had one prior felony conviction (strike) within the meaning of the Three Strikes law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). At sentencing, the trial court granted appellants motion to dismiss his strike conviction. He was sentenced to the upper term of 16 years, granted time credits, and ordered to register as a sex offender and provide a blood sample for AIDS testing under section 1202.1. The court also ordered appellant to pay a restitution fine.
On appeal, appellant challenges the courts order that he provide blood for an AIDS test under section 1202.1. He contends that order should be stricken because the evidence was insufficient as a matter of law to prove that any bodily fluid capable of transmitting HIV has been transferred from [appellant] to the victim. ( 1202.1, subd. (e)(6)(A).) Respondent concedes that the record lacks evidentiary support for the courts order, but urges this court to remand the matter for a probable cause hearing at the election of the prosecutor pursuant to People v. Butler (2003) 31 Cal.4th 1119 (Butler).
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