People v. StowellPeople v. Stowell
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- Before:
- Brown
Lead Opinion
Opinion
BROWN, J.Since 1996, the Legislature has directed that upon conviction of lewd and lascivious acts with a child, in violation of Penal Code section 288, a defendant shall be ordered “to submit to a blood . . . test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS)” “if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV [human immunodeficiency virus] has been transferred from the defendant to the victim: [][] . . . [][] For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared.” (
*1111We conclude that appeal of an HIV testing order on this basis should be subject to the general rule requiring a timely objection. Accordingly, we affirm the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Timothy Brian Stowell was charged with violating Penal Code sections 288 , subdivision (a) (lewd and lascivious acts with a minor), and 289, subdivision (j) (sexual penetration of a minor with a foreign object). Because defendant does not challenge the sufficiency of the evidence in any regard, we recount the facts only briefly as distilled from the Court of Appeal opinion.
On July 25, 1998, Tracie H. and her four-year-old daughter, Taylor—the victim—spent the day with defendant and his girlfriend, LeaAnn Thompson. That evening, they returned to the motel where defendant and Thompson lived (Thompson was the resident manager). Tracie decided she and Taylor would spend the night. They went to sleep in the bedroom while defendant and Thompson remained in the living room. About 2:30 a.m., Tracie was awakened by Taylor’s “rustling” in the bed and told her to settle down. Tracie then heard a male voice say “tight little pussy” and Taylor say “Don’t, Tim. Quit it.” She asked, “Taylor, what is he doing to you?” Taylor responded, “He’s got his finger in my pee-pee.” Tracie immediately took Taylor from the bed and left the motel.
When interviewed by the police, defendant first stated that he had no recollection of getting into the bed with Taylor or of touching her. In a second interview, he admitted inserting his finger into Taylor’s vagina.
The jury found defendant guilty on both counts. The court determined he was ineligible for probation and sentenced him to six years in prison. It also ordered him to submit to a blood test for HIV, as recommended in the probation department’s presentence report.
On appeal, defendant sought to have the testing order invalidated because the trial court had failed to state on the record its finding of probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV had been transferred from him to Taylor2 or to note the finding in the court docket or minutes.
*1112In an unpublished decision, the Court of Appeal affirmed the judgment. With respect to the HIV testing, the court held defendant had forfeited any challenge by failing to object at the time the order was imposed.
DISCUSSION
Penal Code
In this case, the trial court ordered HIV testing, but did not make an express finding of probable cause. Nor did the court enter an appropriate notation in the docket or minute order. On appeal, defendant contended these deficiencies rendered the order invalid. Addressing the threshold question of the scope of review, the Court of Appeal applied the analytical framework this court utilized in People v. Scott (1994) 9 Cal.4th 331, 352-356 [36 *1113Cal.Rptr.2d 627, 885 P.2d 1040] (Scott), and People v. Smith (2001) 24 Cal.4th 849, 852-853 [102 Cal.Rptr.2d 731, 14 P.3d 942] (Smith), to determine the cognizability of certain sentencing decisions. In Scott, the court distinguished between unauthorized sentences—those that “could not lawfully be imposed under any circumstances in the particular case” (Scott, at p. 354)—and discretionary sentencing choices—those “which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.) As to the former, lack of objection does not foreclose review: “We deemed appellate intervention appropriate in these cases because the errors presented ‘pure questions of law’ [citation] and were ‘ “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.] In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable.” (Smith, at p. 852.) With respect to the latter, however, the general forfeiture doctrine applies and failure to timely object forfeits review. Such “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Scott, at p. 353; see also People v. Welch (1993) 5 Cal.4th 228, 232-237 [19 Cal.Rptr.2d 520, 851 P.2d 802].)
Drawing on the analysis in Scott and Smith, the Court of Appeal below found defendant had forfeited his claim on appeal. First, the trial court could have readily corrected the defect in its order upon timely notification. Second, given the uncertainties in the evidence adduced at trial, “whether the trial court could have ordered a blood test depended upon factual issues in the record or requires a remand for further findings.” “We cannot substitute for the trial court in reconstructing what happened, which must be based not only on the medical testimony but on the credibility of the testimony as to what happened. This is precisely the type of circumstance that required a timely objection, which would have resulted in a finding that we could review on appeal.”
Although we agree with the Court of Appeal’s result in this case, we do not adopt the analytical template of Scott and Smith for issues arising under Penal Code
*1114The forfeiture doctrine is a “well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court. [Citation.]” (People v. Vera (1997) 15 Cal.4th 269, 275 [62 Cal.Rptr.2d 754, 934 P.2d 1279]; see People v. Saunders (1993) 5 Cal.4th 580, 589-590 [20 Cal.Rptr.2d 638, 853 P.2d 1093]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185 [151 Cal.Rptr. 837, 588 P.2d 1261].) Strong policy reasons support this rule: “It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]” (Vera, at p. 276.) “ ’ “ ‘The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” ’ [Citation.]” (Saunders, at p. 590.)
This rationale applies with equal force to claims under Penal Code
Moreover, the statute neither requires an express finding (cf.
Analogizing to Penal Code
This requirement is a necessary concomitant of the nature and scope of the discretionary authority Penal Code
*1116None of the foregoing concerns and considerations obtain with respect to a probable cause finding under Penal Code
Defendant also argues that because Penal Code
We therefore hold that 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 Penal Code
DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
In the companion case of People v. Butler (2003) 31 Cal.4th 1119 [6 Cal.Rptr.3d 730, 79 P.3d 1036], we consider the cognizability of an HIV testing order, absent a timely objection, for insufficiency of the evidence to support a finding of probable cause.
For convenience throughout the remainder of the discussion, we will use “probable cause” to denote “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 2002, the Legislature amended Penal Code
“(e)(6)(A) Any of the following offenses 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:”
“(i) Sexual penetration in violation of Section 264.1, 266c, or 289.
“(ii) Aggravated sexual abuse of a child in violation of Section 269.
“(iii) Lewd or lascivious conduct with a child in violation of Section 288.
“(iv) Continuous sexual abuse of a child in violation of Section 288.5.
“(v) The attempt to commit any offense described in clauses (i) to (iv), inclusive.
“(B) For purposes of this paragraph, the court shall note its finding on the court docket and minute order if one is prepared.”
Penal Code
“(1) Rape in violation of Section 261 or 264.1.
“(2) Unlawful intercourse with a person under 18 years of age in violation of Section 261.5 or 266c.’
“(3) Rape of a spouse in violation of Section 262 or 264.1.
“(4) Sodomy in violation of Section 266c or 286.
“(5) Oral copulation in violation of Section 266c or 288a.”
An HIV testing order pursuant to these provisions does not require a finding of probable cause.
We grant defendant’s request that the court take judicial notice of the legislative history of Penal Code
With respect to how a defendant should object to the absence of a probable cause notation, we note that unlike most situations implicating forfeiture, the relevant act usually does not take place in the defendant’s presence. Rather, the court makes the notation in the docket and minute order after the sentencing hearing. Thus, to determine whether the court has complied with the notation requirement the defendant will generally have to check the docket entry and minute order after they have been prepared. If the required notation is missing, the defendant must then submit an objection, presumably, although not necessarily, in writing. We suggest this procedure only as guidance in preserving the notation issue. Defendants remain free to register their objections in any reasonable and timely manner that brings the omission to the trial court’s attention.
Concurrence Opinion
I agree with the majority that a defendant who fails to object in the trial court forfeits appeal of any deficiency in the statutorily required finding supporting an HIV testing order imposed under Penal Code
The Court of Appeal relied on People v. Scott (1994) 9 Cal.4th 331 [36 Cal.Rptr.2d 627, 885 P.2d 1040] (Scott), in which we distinguished between unauthorized sentences—i.e., sentences that “could not lawfully be imposed under any circumstance in the particular case” (id. at p. 354)—and sentencing error deemed forfeited on appeal—i.e., “sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (Ibid.) Unauthorized sentences, we explained, constitute a “narrow exception” to the “general requirement” that “only those claims properly *1118raised and preserved by the parties are reviewable on appeal.” (Ibid.) Applying Scott’s general rule, the Court of Appeal reasoned that defendant, by failing to object in the trial court, had forfeited his claim that the HIV testing order was imposed in a procedurally flawed manner.
I would embrace the Court of Appeal’s straightforward analysis. The majority, however, does not. Its rationale for refusing to do so consists of this sentence: “Since HIV testing does not constitute punishment (see People v. McVickers (1992) 4 Cal.4th 81, 83 [13 Cal.Rptr.2d 850, 840 P.2d 955]), it cannot properly be considered a sentencing choice.” (Maj. opn., ante, at p. 1107.) In my view, the premise does not support the conclusion. Scott nowhere limited itself to punishment and instead referred broadly to “sentencing decisions” (Scott, supra, 9 Cal.4th at p. 348), “sentencing choice[s]” (id. at p. 352), and just plain old “sentences.” (Id. at p. 354.)
Moreover, the Scott rule has regularly been applied to bar a defendant from challenging for the first time on appeal other nonpunitive sentencing decisions, such as a trial court’s failure to commit a defendant to the California Rehabilitation Center (e.g., People v. Lizarraga (2003) 110 Cal.App.4th 689, 692 [1 Cal.Rptr.3d 865]; People v. Planavsky (1995) 40 Cal.App.4th 1300, 1311-1315 [47 Cal.Rptr.2d 723]) or a trial court’s imposition of rehabilitative probation conditions (e.g., In re Josue S. (1999) 72 Cal.App.4th 168, 170-173 [84 Cal.Rptr.2d 796]; People v. Torres (1997) 52 Cal.App.4th 771, 782-783 [60 Cal.Rptr.2d 803]). Indeed, People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [120 Cal.Rptr.2d 687]—which is cited by the majority— applied Scott to bar a defendant from challenging for the first time on appeal a requirement that he register as a sex offender. Sex offender registration, like HTV testing, is nonpunitive. (People v. Ansell (2001) 25 Cal.4th 868, 886 [108 Cal.Rptr.2d 145, 24 P.3d 1174]; see generally Smith v. Doe (2003) 538 U.S. 84, 92-96 [155 L.Ed.2d 164, 123 S.Ct. 1140].)
Accordingly, the line drawn by the majority is illusory. And, inasmuch as the parties agreed at oral argument that the framework set forth in Scott applied to this case, it is unnecessary. Finally, in light of the majority’s acknowledgement that Scott is merely an application of “the general forfeiture doctrine” (maj. opn., ante, at p. 1107), the distinction it purports to draw between the two is mystifying. I therefore concur only in the result.
Appellant’s petition for a rehearing was denied January 22, 2004.