P. v. Butler

Filed 5/14/02
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIE EARL BUTLER,
Defendant and Appellant.
F036844
(Super. Ct. No. 00CM1453)
O P I N I O N
APPEAL from a judgment of the Superior Court of Kings County. Lynn C.
Atkinson, Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Acting Chief Assistant
Attorney General, Mary Jo Graves, Acting Senior Assistant Attorney General, Michael J.
Weinberger and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and
Respondent.

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Appellant, Willie Earl Butler, was convicted of lewd and lascivious acts with a
minor under the age of 14 (Pen. Code,1 288, subd. (a)), sexual battery (§ 243.4,
subd. (d)), and attempted sexual penetration (§§ 664/289, subd. (i)). The trial court
sentenced appellant to a total term of eight years and four months and ordered that he
submit to AIDS testing pursuant to section 1202.1.
On appeal, appellant contends that his conviction for attempted sexual penetration
must be reversed because the charge was barred by the statute of limitations. In addition,
he claims that the trial court erred in instructing the jury with CALJIC Nos. 2.50.01 and
17.41.1. We find these claims without merit. Appellant further contends that the trial
court improperly sentenced him to a one-year term for his sexual battery conviction, and
that the trial court’s imposition of an AIDS test was unauthorized. We agree with these
claims and will modify appellant’s sentence accordingly.
FACTS
Appellant’s convictions stem from three separate incidents involving three
separate victims. We will briefly relay the facts as they relate to each count.
Count One
Thirteen-year-old Cynthia B. was visiting a friend of her mother, John Shoyer,
when appellant arrived at the house. Cynthia went home, but later returned to Shoyer’s
house after her father left for work. On the way to Shoyer’s house, Cynthia saw appellant
walking around and he accompanied her to the house. When they arrived at the house,
Cynthia began watching television while appellant and Shoyer talked.
At some point, appellant began to whisper in Cynthia’s ear, but she was unable to
hear what he said. He told her to follow him to the bathroom and she complied, thinking
he was going to tell her something. Once in the bathroom, appellant began fondling her
1 All further references are to the Penal Code unless otherwise indicated.

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vagina. Cynthia was frightened and told appellant to stop, but he persisted and began
touching her breasts. Appellant asked her if he could “suck on her titties” and she replied
that he could not. Appellant stated that he would not force her and left the bathroom.
When Cynthia returned to the living room, Shoyer asked Cynthia if appellant had
touched her. She said he had. After appellant left, Shoyer and Cynthia went to a
neighbor’s house and called the police.
Count Two
Appellant lived with his mother and his 20-year-old niece, Alfenna, at his
mother’s house. Alfenna slept on a sofa bed in the den next to the room in which
appellant slept. One night Alfenna slept in her clothes with her two young children
beside her. She awoke when she felt appellant’s hand in her pants, and his fingers
“messing” with her. She immediately began screaming and appellant ran to the doorway.
Her grandmother came into the room and she told her what had happened.
Appellant told his mother that Alfenna was lying and that she must have been
dreaming about him. He said that he had just been coming from the bathroom. Alfenna
gathered her things and left the house. She reported the incident to the police the next
day.
Count Three
Courtney K., another of appellant’s nieces, recounted incidents that took place
approximately 10 years prior to trial. When Courtney was 13 years old, she was living
with her grandmother and appellant at her grandmother’s house. One night while she
was living there, she recalled waking up to find appellant rubbing her buttocks. She
asked him what he was doing and he said that he was making sure she did not wet the
bed. He then pulled her panties back up over her buttocks and left the room when
Courtney’s aunt knocked on the bedroom door. Courtney told her grandmother about the
incident the following day.

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Courtney went on to relay additional incidents where she was awakened by
appellant touching her. She stated that she would yell or tell appellant to get away from
her, and that her grandmother would come into the room, she would be called a liar and
would be told to go back to sleep.
Regarding the charged incident, she noted that it occurred when she was 14 years
old. She had been asleep and was awakened when she felt appellant pushing his finger
into her anus. She called him a “sick bastard” and ordered him to leave the room.
Appellant stated he was sorry and left.
Courtney’s grandmother denied that Courtney had ever reported any touching
incidents to her. She did state that Courtney had told her about an incident where
appellant had peeked at her underneath the door.
In addition to the evidence relating to the charged counts, the prosecution was
permitted to introduce evidence relating to appellant’s prior sexual misconduct pursuant
to Evidence Code section 1108. Jean J., Alfenna’s and Courtney’s sister, stated that one
night when she was 17 she was awakened by appellant fondling her vagina over her
clothing. She was very frightened by the incident and immediately left.
As a result of this incident, appellant’s mother took appellant to “mental health”
because he needed help. Appellant’s mother forced appellant to move out of the house;
however, she allowed him to move back in when he had no other place to stay. Appellant
promised that he would not behave in such a manner anymore.
Defense Case
Appellant denied the allegations against him. Regarding Cynthia, he stated that
she was lying to cover up for Shoyer. He claimed that Cynthia said she was Shoyer’s
girlfriend. Appellant also stated that Shoyer was naked when they were watching
television, with only a little towel covering him up.

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Appellant admitted going into the bathroom with Cynthia, but he claims that he
asked her if she was having sex with Shoyer. Although she denied the accusation, she
would not look him in the eye. When they left the bathroom, appellant went into the
kitchen to get some water. When he returned, Shoyer accused him of touching Cynthia
and ordered him to leave. He complied. He denied ever touching Cynthia.
Regarding the incident with Alfenna, appellant claimed that he tripped on a coffee
table on his way to the bathroom and fell, with his hand inadvertently landing between
Alfenna’s legs.
Regarding the incident with Courtney, he claimed that he never touched her
inappropriately, and claimed that she was covering for her grandmother’s husband who
was actually molesting her.
Appellant admitted to touching Jean. He said he could not explain why he did it.
He felt like he was sick.
DISCUSSION
I. Appellant forfeited his right to a statute of limitations defense.
Appellant contends his conviction for attempted sexual penetration must be
reversed because the crime was barred by the statute of limitations. Appellant was
originally charged with committing lewd and lascivious acts with a minor (Courtney)
under the age of 14. (§ 288, subd. (a).) The complaint, which was filed on June 26,
2000, alleged that the crime took place in 1990, four years after the statute of limitations2
had run. The prosecution failed to allege any facts tolling the limitations period. In a
trial brief filed the on the first day of trial, the prosecutor argued the charges were timely
filed under the tolling provisions of section 803, subdivision (g). After the close of
evidence, the prosecutor moved to amend the charge to one count of sexual penetration.
2 The statute of limitations for a violation of section 288 is six years. (§ 800.)

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(§ 289, subd. (i).) This was based on evidence that Courtney was 14 years old at the time
of the incident. The trial court subsequently instructed the jury, on the prosecutor’s
request, with the crime of sexual penetration, and the lesser included offense of attempted
sexual penetration. Appellant did not object to the instructions. The jury ultimately
convicted appellant of the lesser offense of attempted sexual penetration.
On appeal, appellant claims that the pleading was defective regarding the charged
offense and further claims that his right to raise the statute of limitations regarding the
lesser offense was not forfeited for failing to raise it in the trial court. We disagree with
appellant and find he has forfeited any claim regarding the statute of limitations in this
case.
In 1934, our Supreme Court was presented with the question of whether the statute
of limitations was jurisdictional in nature or whether it was better characterized as an
affirmative defense. (People v. McGee (1934) 1 Cal.2d 611, 612.) The court held that it
was jurisdictional and explained that an “indictment or information which shows on its
face that the prosecution is barred by limitations fails to state a public offense.” (Id. at
p. 613.) As a result, the courts have repeatedly held that a defendant could raise the
statue of limitations at any time. (People v. McGee, supra, 1 Cal.2d at p. 613; In re
Demillo (1975) 14 Cal.3d 598, 601; People v. Chadd (1981) 28 Cal.3d 739, 756-757;
People v. Rose (1972) 28 Cal.App.3d 415, 417.)
Over 60 years after McGee was decided, our Supreme Court addressed the issue of
whether a defendant could waive3 a statute of limitations defense to an offense when it
was to the defendant’s benefit. In Cowan v. Superior Court (1996) 14 Cal.4th 367, the
defendant was charged with murder, but agreed to plead guilty to the time-barred lesser
3 In the context of statute of limitations discussions, the term “waiver” means the
intentional relinquishment of a known right and the term forfeiture means the loss of a
right by the failure to assert it.

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offense of voluntary manslaughter and receive a sentence of no more than four years in
prison. (Id. at p. 370.) The prosecutor moved to set aside the plea on the grounds that the
trial court was without jurisdiction to proceed on the time-barred offense. (Ibid.)
Although the defendant was willing to waive the statute of limitations, the trial court
found the parties could not stipulate to jurisdiction of the court, and granted the motion to
set aside the plea and reinstate the original charges. (Ibid.) The Court of Appeal upheld
the trial court’s decision, and the Supreme Court reversed.
The Supreme Court began its analysis by acknowledging its decision in People v.
McGee, supra, holding that the statute of limitations is jurisdictional in nature. (Cowan v.
Superior Court, supra, 14 Cal.4th at pp. 371-372.) Cowan explained that the prior
decisions regarding the statute of limitations involved whether a defendant could forfeit
the statute by failing to timely assert it. (Id. at p. 372.) The court found that a defendant
should be allowed to expressly waive the statute of limitations for his benefit. (Id. at
pp. 372-373.) In addition, the court reconsidered its prior opinion in McGee overruling it
to the extent that it held that the court lacks fundamental subject matter jurisdiction to
proceed against a time-barred offense. (Id. at p. 374.)
In dissent, Justice Brown argued that the jurisdictional approach to the statute of
limitations has had unanticipated consequences with regard to lesser included offenses.
(Cowan v. Superior Court, supra, 14 Cal.4th at p. 385, dis. opn. of Brown, J.) As an
illustration, Justice Brown pointed to People v. Rose, supra, 28 Cal.App.3d 415. In Rose,
the defendant was charged with murder and was convicted of voluntary manslaughter.
On appeal, the court, on its own motion, reversed the conviction explaining the
manslaughter conviction was barred by the statute of limitations. (Id. at p. 417.)
Although the court recognized that the “state of the record may be the result of defense
strategy pointed at preventing the jury from having to choose between murder and
acquittal,” the court nevertheless reversed finding the conviction jurisdictional defective.
(Ibid.) Such a result was a direct consequence of McGee’s holding. Justice Brown stated

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that she would overrule McGee and hold that the statute of limitations constitutes an
affirmative defense. (Cowan v. Superior Court, supra, 14 Cal.4th at p. 387, dis. opn. of
Brown, J.)
A few years later, in People v. Williams (1999) 21 Cal.4th 335, our high court was
confronted with the question of whether it should overrule McGee entirely and hold that
the statute of limitations is an affirmative defense which is forfeited if a defendant fails to
raise it before or at trial. The court declined to entirely overrule prior precedent and held
that where a charging document indicates on its face that the action is barred by the
statute of limitations, a person convicted of the charged offense may raise the statute of
limitations at any time. (Id. at p. 341.) This rule is preferable, in part, because a
forfeiture rule would “be an exercise in futility.” (Id. at p. 342.) As the court explained,
if it adopted a forfeiture rule, defendants would simply claim ineffective assistance of
counsel when the statute of limitations was not raised at trial. Such claims would
normally be meritorious and would therefore only “add a step to the litigation.” (Ibid.)
In addition, the court found unpersuasive the respondent’s argument that imposing
a forfeiture rule would require the defendant to raise the statute of limitations at trial
thereby developing an adequate record on the matter. The court pointed out that the
prosecutor has control over the charging document and can easily allege facts that toll the
limitations period. Therefore, any failure in the record is partly the fault of the district
attorney. (People v. Williams, supra, 21 Cal.4th at p. 345.) Finally, the court found it
improbable that that a forfeiture rule would reduce the possibility that the defendant
would engage in “‘gamesmanship’” in the trial court. (Id. at p. 346.) If an action was in
fact time-barred, a defendant would reap no benefit by waiting to assert the limitations
period until appeal thereby reducing the possibility of gamesmanship.
Williams did not address the question presented in this case, namely, what rules to
apply where a defendant is convicted of a time-barred lesser offense when the charged
offense is not time-barred. However, the First District, in People v. Stanfill (1999) 76

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Cal.App.4th 1137, was confronted with this very issue. In Stanfill, the defendant was
charged with one count of felony embezzlement, and was convicted of the time-barred
lesser offense of misdemeanor embezzlement. (Id. at p. 1139.) On appeal, the court held
that a defendant forfeits his right to assert the statute of limitations when he is convicted
of a time-barred lesser offense where the charged offense was timely and the defendant
either requested or acquiesced in the giving of instructions on the lesser offense. (Id. at
p. 1150.)
In reaching this conclusion, the court emphasized the likelihood of gamesmanship
or sandbagging. Without a forfeiture rule, a defendant would have an incentive to remain
quiet about a statute of limitations problem in order to secure an instruction on a lesser
offense in the trial court without expressly waiving the limitations problem, then “as an
ace up his sleeve, secure reversal on the theory that he never expressly waived.” (People
v. Stanfill, supra, 76 Cal.App.4th at p. 1148.) Such a result is “unconscionable.” (Ibid.)
In addition, a forfeiture rule would encourage the parties to focus on the statute of
limitations at the trial court where the issue could be fully developed. Although Williams
noted that the prosecution could bring the issue into focus by pleading any tolling period
in the charging document, the argument is less forceful in the case of a time-barred lesser
offense. The prosecution does not charge lesser offenses in the accusatory pleading, and
there would be no reason for the prosecutor to include tolling provisions for lesser
offenses. (Id. at p. 1149.) Additionally, the concern in Williams, that a forfeiture rule
would simply lead to an increased number of ineffective assistance of counsel claims,
does not have the same force in this context. Williams explained that most ineffective
assistance of counsel claims would have merit when the charged offense is barred by the
limitations period on the face of the pleading. (People v. Williams, supra, 21 Cal.4th at
p. 342.) Not so in the case of a time-barred lesser offense. Defense counsel could have a
tactical reason for failing to raise the limitations bar as it would give the jury a choice of

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something between the greater offense and acquittal. (People v. Stanfill, supra, 76
Cal.App.4th at pp. 1149-1150.)
Appellant argues this court should not follow the decision in Stanfill because it is
premised on the “absurd assumption … that the jury would have convicted the defendant
of the charged offense were it not for the trial court’s unnecessary instruction on the
lesser offense.” He claims that it is equally, if not more likely, that the jury would have
acquitted him had the lesser instruction been omitted. Appellant fails to note that the
United States Supreme Court has recognized that it is to a defendant’s benefit to be
presented with the option of a lesser included offense. (Beck v. Alabama (1980) 447 U.S.
625, 633-637; Keeble v. United States (1973) 412 U.S. 205, 213.) Indeed, the high court
has acknowledged that where a jury is presented with an all or nothing choice regarding a
charged offense, and the evidence demonstrates that the defendant is plainly guilty of
some offense, “the jury is likely to resolve its doubts in favor of conviction.” (Keeble v.
United States (1973) 412 U.S. 205, 213.)
Relying on People v. Miller (1859) 12 Cal. 291 appellant argues that Stanfill goes
against long standing Supreme Court precedent. In Miller, the court held a defendant
charged with murder could not be convicted of the lesser included offense of
manslaughter when manslaughter was barred by the statute of limitations. (Id. at pp. 294-
295.) The court provided little analysis, simply noting that a defendant could not be
convicted of a charged offense that was barred by the limitations period. This holding
appears to be based on the idea that the court had no jurisdiction over the offense.
However, Cowan overruled a long line of cases holding that the statute of limitations is
jurisdictional, and noted that the court does have the power to proceed over time-barred
offenses. Thus we find that Miller provides little guidance here.
Appellant further argues that Stanfill is unpersuasive in this case because appellant
would have been entitled to a reversal of his conviction if he had been convicted of the
charged offense. His argument is premised upon Williams holding that a defendant may

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raise the statute of limitations at any time when the charging document indicates on its
face that the charged offense is barred by the statute of limitations. (People v. Williams,
supra, 21 Cal.4th at p. 338.) Appellant’s argument assumes this court would have
reversed his conviction if he had been convicted of the greater offense. Not so. Although
the facts supporting the tolling provision in this case were not alleged in the complaint as
required by Williams, appellant received notice of those facts when the prosecutor filed
her trial brief. We see little difference between alleging the facts in the accusatory
pleading and alleging them in a trial brief. In each case, the defendant would receive
notice of the facts and could chose whether or not to contest them. Furthermore, it is
clear that appellant in fact had notice of the prosecution’s reliance on section 803,
subdivision (g), as defense counsel moved for an acquittal on those grounds immediately
after the jury was discharged from its service. Because appellant had notice of the
prosecution’s theory and chose not to contest the statute of limitations at trial, we find
that a forfeiture rule as to the lesser offense is appropriate in this case.
For the reasons stated above, we find the reasoning of Stanfill persuasive and
follow it here. When appellant acquiesced to the time-barred lesser offense instruction,
he forfeited his right to raise the statute of limitations on appeal. This rule is especially
appropriate in this case, where appellant was clearly aware of the problem, yet chose to
wait until after the verdict to raise the issue. Allowing appellant to secure a reversal on
the lesser offense after allowing him the benefit of receiving instructions on that offense
would lead to an unconscionable result.
II. The jurors were properly instructed pursuant to CALJIC No. 2.50.01.
Appellant argues that the 1999 revision to CALJIC No. 2.50.01 impermissibly
lowered the prosecution’s burden of proof and violated his due process rights. We
disagree.
The trial court instructed the jury pursuant to CALJIC No. 2.50.01 as follows:

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“Evidence has been introduced for the purpose of showing that the
defendant engaged in a sexual offense on one or more occasions other than
that charged in this case.
“‘Sexual offense’ means a crime under the laws of the state or of the
United States involving any of the following:
“A. Any conduct made criminal by Penal Code Section 647.6. The
elements [sic] of this crime is set forth elsewhere in the next instruction….
“B. Contact, without consent[,] between any part of the defendant’s
body or an object and the genitals or anus of another person.
“If you find that the defendant committed a prior sexual offense, you
may, but are not required to, infer that the defendant had a disposition to
commit the same or similar type sexual offenses. If you find that the
defendant had this disposition, you may, but are not required to, infer that
he was likely to commit and did commit the crime or crimes of which [he
is] accused.
“However, if you find by a preponderance of the evidence that the
defendant committed a prior sexual offense, that is not sufficient by itself to
prove beyond a reasonable doubt that he committed the crimes charged.
“The weight and significance of the evidence, if any, are for you to
decide. Unless you are otherwise instructed, you must not consider this
evidence for any other purpose.”
Appellant contends that this jury instruction is unconstitutional because it permits
the jury to draw the “irrational conclusion” that a defendant committed the charged crime
based upon evidence of uncharged sexual misconduct. He bases his argument upon the
language of the instruction which permits the jury to infer that the defendant “was likely
to commit and did commit” the charged crimes if they find the defendant had a
disposition to commit similar sex offenses based upon evidence that he had previously
committed a sexual offense. (CALJIC No. 2.50.01.) We find appellant’s claim without
merit.
Appellant’s argument seems to be based upon a statement made in People v.
James (2000) 81 Cal.App.4th 1343. In a footnote, the James court noted that the 1999

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amendments to CALJIC No. 2.50.01 were “an improvement.” (James, at p. 1357, fn. 8.)
However, the court went on to state:
“to the degree it still suggests other offense evidence is relevant only to
infer guilt from propensity, we believe the instruction simultaneously
overstates and unduly limits the use of such evidence. The Falsetta court
acknowledged that other crimes evidence may be considered for a variety
of purposes ‘such as establishing defendant’s motive, intent, or identity (if
those issues remain contested), or bolstering the young victim’s credibility.’
[Citation.] We believe an instruction in general terms would be more
appropriate, leaving particular inferences for the argument of counsel and
the jury’s common sense. At a minimum, deleting the words ‘and did
commit’ from the standard instruction would remedy many of the concerns
addressed above.” (Ibid.)
This dicta does not imply the instruction was constitutionally infirm but merely
that it could be improved. Furthermore it appears that the court’s only caveat about the
instruction is that it ignored the fact that other crimes evidence may properly be
considered for a variety of other purposes. (Ibid.) Therefore, we find the opinion
unpersuasive.
In addition, we note that appellant’s argument was made and rejected in People v.
Van Winkle (1999) 75 Cal.App.4th 133. In that case, this court held the pre-1999 version
of CALJIC No. 2.50.01 did not violate the defendant’s due process rights because it
contained permissive, rather than mandatory, inferences that allowed the jury to find the
defendant was likely to commit, or did in fact commit, the charged crime. (Id. at p. 143.)
If the jury found, by a preponderance, that the defendant committed a prior sexual
offense, the jury was allowed, but not required, to infer the defendant had a disposition to
commit the same or similar type of offense. If the jury made the first inference, then the
jury was allowed to make two additional inferences: that the defendant was likely to
commit and that the defendant did in fact commit the charged crime. (Ibid.) Van Winkle
further held a trier of fact could rationally infer that (1) a defendant who has previously
committed sexual offenses against young girls has a disposition toward committing this

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type of offense; (2) that being predisposed to committing such acts increases he
likelihood of repeat offenses; and (3) that such disposition increases the likelihood that he
did commit the current offense. (Id. at p. 144.)
Likewise, People v. Jeffries (2000) 83 Cal.App.4th 15, 21-22, rejected the
defendant’s claim that the inferences contained in CALJIC No. 2.50.01 violated due
process because there was no rational connection between the circumstances of the earlier
sexual offenses and the defendant’s guilt of the present charges. The court there noted
that our Supreme Court, in People v. Falsetta (1999) 21 Cal.4th 903, explained that
evidence that the defendant committed prior sexual offenses is relevant to the issue of his
disposition or propensity to commit the current offense. (Ibid.; see also People v. O’Neal
(2000) 78 Cal.App.4th 1065, 1076-1078.)
We agree with these rulings and conclude that the permissible inferences in
CALJIC No. 2.50.01 do not violate appellant’s due process rights. To the extent that
appellant argues that the instructions allows the jury to base a finding of guilt solely upon
the fact that he had previously committed a sexual offense, we note that the jury was
expressly instructed that if it found appellant had committed the previous offense, “that is
not sufficient by itself to prove beyond a reasonable doubt that he committed the crimes
charged.” We presume the jury followed this instruction as given and also applied
CALJIC No. 2.90 (defining reasonable doubt) in determining that the prosecution proved
each element of the current crimes beyond a reasonable doubt. (People v. Holt (1997) 15
Cal.4th 619, 622; People v. Delgado (1993) 5 Cal.4th 312, 331.)
Appellant also seems to argue that the instruction lessened the prosecution’s
burden of proof. We are not writing on a clean slate when we consider whether CALJIC
No. 2.50.01 (1999 rev.) allows a jury to convict a defendant on proof less than beyond a
reasonable doubt. The Supreme Court, in People v. Falsetta, supra, 21 Cal.4th 903, cited
this version of CALJIC No. 2.50.01 with approval. Admittedly, this reference is not
binding precedent since the court made the comment in dictum. However, we note that

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“even dictum from our Supreme Court is considered ‘highly persuasive.’ [Citations.]
We believe it is improbable that the California Supreme Court would suggest an
instruction ‘adequately sets forth the controlling principles’ for considering other crimes
evidence, and then find that same instruction to be constitutionally defective. [Citation.]”
(People v. Brown (2000) 77 Cal.App.4th 1324, 1336.)
This court has previously considered this instruction in two published opinions,
People v. Van Winkle, supra, 75 Cal.App.4th 133 and People v. O’Neal, supra, 78
Cal.App.4th 1065. These cases, as well as other published decisions, considered the
version of CALJIC No. 2.50.01 used before the 1999 revision. This version of the
instruction did not inform the jury that if it found the defendant committed the prior
sexual misconduct by a preponderance of the evidence, that in and of itself was
insufficient to prove the defendant guilty beyond a reasonable doubt of the charged
crime.
We held in Van Winkle and O’Neal that CALJIC No. 2.50.01 before the 1999
revision, when considered with the other instructions, did not impermissibly lessen the
prosecution’s burden of proof. (People v. Van Winkle, supra, 75 Cal.App.4th at pp. 147-
149; People v. O’Neal, supra, 78 Cal.App.4th at pp. 1078-1079.) There is a split of
authority among the remaining districts whether the pre-1999 version of CALJIC
No. 2.05.01 and its sister instruction used in domestic violence cases, CALJIC
No. 2.50.02, deprive a defendant of the right to due process by allowing a conviction on
less than proof beyond a reasonable doubt. (See, e.g., People v. Younger (2000) 84
Cal.App.4th 1360 [CALJIC No. 2.50.02—error]; People v. Jeffries, supra, 83
Cal.App.4th 15 [CALJIC No. 2.50.01—no error].)
We need not revisit this issue since the trial court read the 1999 revision of
CALJIC No. 2.50.01 to the jury. This revision remedies the defect in the instruction
some courts found objectionable.

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Cases from other districts which have considered the 1999 revision of CALJIC
No. 2.50.01 have found CALJIC Nos. 2.50.01 and 2.50.02 do not deprive a defendant of
his right to due process and do not result in a conviction by a standard less than beyond a
reasonable doubt. (People v. Hill (2001) 86 Cal.App.4th 273; People v. Brown, supra, 77
Cal.App.4th 1324.) We agree and find the jury was properly instructed with the 1999
revision of CALJIC No. 2.50.01.
III. The trial court’s instructions pursuant to CALJIC No. 17.41.1 were proper.
Appellant claims that the trial court’s instructing the jury pursuant to CALJIC
No. 17.41.1 interfered with his right to a trial by jury. Appellant contends the instruction,
improperly chills jury deliberations and interferes with the jury’s right to nullify the law.
Respondent contends that appellant waived any challenge to CALJIC No. 17.41.1
because he failed to object to the instruction at trial. We find that appellant’s challenge to
the instruction was not waived, and conclude the instruction was proper.
A. Appellant’s claim was not waived.
The debate over the validity of CALJIC No. 17.41.1 centers on whether the
instruction impermissibly interferes with jury deliberations and the asserted right to jury
nullification. The jury deliberative process is a right guaranteed under the Sixth
Amendment of the United States Constitution and article I, section 16 of the California
Constitution. (People v. Collins (1976) 17 Cal.3d 687, 693.) Thus, an instruction that
undermines or impinges on that process would affect a defendant’s substantial rights. No
objection was required to preserve the issue on appeal. (§ 1259; see also People v. Baca
(1996) 48 Cal.App.4th 1703, 1706.) We therefore reject respondent’s claim of waiver
and proceed to consider the merits of appellant’s claim.

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B. The instruction was proper.
CALJIC No. 17.41.1 provides:
“The integrity of a trial requires that jurors, at all times during their
deliberations, conduct themselves as required by these instructions.
Accordingly, should it occur that any juror refuses to deliberate or
expresses an intention to disregard the law or to decide the case based on
[penalty or punishment, or] any [other] improper basis, it is the obligation
of the other jurors to immediately advise the Court of the situation.”
CALJIC No. 17.41.1, and the controversy that follows it, is currently before the
California Supreme Court. (E.g., People v. Engelman ( 2000) 77 Cal.App.4th 1297,
review granted Apr. 26, 2000, S086462; People v. Taylor (2000) 80 Cal.App.4th 804,
review granted Aug. 23, 2000, S088909; People v. Morgan (2000) 85 Cal.App.4th 34,
review granted Mar. 14, 2001, S094101.) Though this court has not yet addressed the
issue in a published decision, we find no reason to undergo a lengthy analysis, given the
imminence of a ruling by the Supreme Court. We simply state that we find the
instruction proper. In particular, we conclude that CALJIC No. 17.41.1 does not intrude
into a juror’s deliberative thought processes, nor does it eliminate jury secrecy. The
instruction does not address proper subjective or objective deliberation, whether
collective or individual; it addresses instead impermissible objectively expressed refusals
to deliberate or breaches of duty by a juror. It is neither intrusive nor coercive, and
simply reminds the jurors of their duty to decide the case before them on the basis of the
evidence and the law as instructed by the court. (See People v. Baca (1996) 48
Cal.App.4th 1703, 1706.)
We also reject appellant’s contention that the instruction interfered with the jury’s
right to nullify. A jury has no such right: “Juries have had the naked power to ‘nullify’
for over 300 years ....” (People v. Baca, supra, 48 Cal.App.4th at p. 1707, emphasis
added.) But while the power to nullify exists, there is no concomitant right to nullify.
(See People v. Williams (2001) 25 Cal.4th 441.)

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Moreover, the instruction did not tell the jury they did not have the power to
nullify. Jurors have a duty to follow the court’s instructions (People v. Daniels (1991) 52
Cal.3d 815, 865), and the court made reference to this duty. However, the court said
nothing about the jury’s power to nullify. The jury’s duty to follow the court’s
instructions justifies an instruction obliging jurors to report both refusals to deliberate and
expressions of an intention to disregard the law or to decide the case on an improper
basis.
Even if the Supreme Court invalidates CALJIC No. 17.41.1, we find the
instruction caused no prejudice in the instant case. There was no report of a juror
refusing to deliberate or disregarding the law. There was no jury deadlock, and no
holdout juror. In short, there is no reason to believe that the court’s use of CALJIC
No. 17.41.1 played any role in the jury’s deliberations. Appellant has therefore failed to
demonstrate how he was prejudiced by the court’s reading of the instruction.
IV. Appellants sentence for sexual battery must be reduced.
Appellant was convicted of misdemeanor sexual battery (§ 243.4, subd. (d)(1)),
and sentenced to a one-year prison term. However, section 243.4, subdivision (d)
provides in pertinent part:
“Any person who touches an intimate part of another person, if the
touching is against the will of the person touched, and is for the specific
purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of
misdemeanor sexual battery, punishable by a fine not exceeding two
thousand dollars ($2,000), or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.” (Italics
added.)
As is clear from the code section, the maximum authorized sentence for
misdemeanor sexual battery is six months. By imposing a sentence greater than the
maximum allowable the trial court pronounced an unauthorized sentence. (People v.

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Scott (1994) 9 Cal.4th 331, 354.) The imposition of an unauthorized sentence is
correctable in the first instance on appeal. (Ibid.)
The trial court imposition of a one-year sentence for the sexual battery conviction
was unauthorized. Therefore, we will reduce appellant’s sentence to a lawful six-month
term.
V. The trial court’s order requiring appellant to submit to AIDS testing must be
reversed.
Appellant contends that the trial court’s order that he be tested pursuant to section
1202.1 for AIDS antibodies is unlawful and must be stricken. Respondent contends the
issue is waived because it requires a factual determination and was not raised at trial.
Mandatory testing for AIDS is strictly limited by statute. (People v. Guardardo
(1995) 40 Cal.App.4th 757, 763.) Here, the applicable statute is section 1202.1 and its
relevant provisions provide as follows:
“(a) Notwithstanding Sections 120975 and 120990 of the Health and
Safety Code, the court shall order every person who is convicted of, or
adjudged by the court to be a person described by Section 601 or 602 of the
Welfare and Institutions Code as provided in Section 725 of the Welfare
and Institutions Code by reason of a violation of, a sexual offense listed in
subdivision (e), whether or not a sentence or fine is imposed or probation is
granted, to submit to a blood test for evidence of antibodies to the probable
causative agent of acquired immune deficiency syndrome (AIDS)…. [¶] ...
“(e) For purposes of this section, ‘sexual offense’ includes any of the
following: [¶] ...
“(6) Lewd or lascivious acts with a child in violation of Section 288,
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. For purposes of this paragraph, the court
shall note its finding on the court docket and minute order if one is
prepared.”

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The record does not contain any finding of probable cause to believe a bodily fluid
had been transferred from appellant to the victim and the court’s docket and minute order
do not contain the necessary finding.
Citing People v. Scott, supra, 9 Cal.4th at page 353, respondent argues the matter
is waived because appellant failed to make a timely objection which would permit the
court to make the required finding. Respondent contends if a timely objection had been
raised the prosecution would have had an opportunity to present evidence to establish
whether or not bodily fluids had been transferred.
While we might find respondent’s argument persuasive in a case where the
challenge is to the sufficiency of the evidence on which the required finding was made or
where there was a factual dispute concerning the appropriateness of the finding (see
People v. Caird (1998) 63 Cal.App.4th 578 [evidence showing defendant on top of victim
with penis between victim’s thighs was sufficient to establish probable cause under
statute]), this is not such a case. Here there is no finding to support the order that
appellant is to submit to AIDS testing. Furthermore, there is nothing in the record to
suggest even a possibility that bodily fluids were transferred. (See In re Khonsavanh S.
(1998) 67 Cal.App.4th 532, 537 [nothing in the record remotely suggests any statutory
basis for AIDS testing].) Thus the challenge raised by appellant does not present a
factual question but instead a pure question of law concerning the validity of the order.
This claim has not been waived.
The statute is clear and unambiguous and must be strictly construed. (See People
v. Green (1996) 50 Cal.App.4th 1076, 1090; People v. Jillie (1992) 8 Cal.App.4th 960,
963.) The failure of the court to make the required finding and the lack of any evidence
on the record to support such a finding renders the order unauthorized.
As we have already noted, there is nothing in the record to suggest that there is
evidence available to the prosecutor to establish probable cause that bodily fluids were
transferred from appellant to the victim. However, we are mindful that in the absence of

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an objection at trial, the prosecutor had no notice that such evidence would be needed to
overcome a defense objection. Therefore, we will strike the AIDS testing order but
remand the matter to permit a further hearing on the issue if the prosecutor so requests.
DISPOSITION
Appellant’s sentence on count two, sexual battery (§ 243.4, subd. (d)), is modified
to reflect a six-month term and the superior court is directed to amend the abstract of
judgment accordingly. The order requiring appellant to submit to testing for AIDS is
vacated. Should the prosecutor request a hearing concerning AIDS testing within 30 days
of the filing of the remittitur, the court shall conduct a further hearing, at which appellant
shall be present, concerning whether the offense was a “sexual offense” within the
meaning of section 1202.1, subdivision (e)(6). If no request is made within the stated
time frame, the superior court is directed to amend the abstract of judgment accordingly
and to forward a certified copy of the amended abstract to the Department of Corrections.
In all other respects the judgment is affirmed.
_________________________
Levy, J.
WE CONCUR:
_______________________________
Buckley, Acting P.J.
_______________________________
Cornell, J.

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