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Name: People v. Stowell
Case #: S108187
Court: CA Supreme Court
District CalSup
Opinion Date: 12/01/2003
Subsequent History: None

Absent an objection in the trial court, a defendant forfeits the right to appeal any deficiency in the statutorily-required finding supporting an HIV order pursuant to Penal Code section 1202.1, subdivision (e)(6), and likewise forfeits any challenge to the failure to note those findings in the docket or minute order. Penal Code section 1202.1 requires a court that orders HIV testing in a Penal Code section 288 case to make an express finding of probable cause to believe that a bodily fluid capable of transmitting HIV has been transferred to the victim, and to note that finding in the record. However, where the defendant fails to object to the lack of an express finding or notation in the record, the claim of error is forfeited. The court here did not apply the waiver doctrine from People v. Scott (1994) 9 Cal.4th 331 and People v. Smith (2001) 24 Cal.4th 849, finding that the distinction between unauthorized sentences and procedurally deficient sentences was not relevant in this context because HIV testing does not constitute punishment and is thus not a sentencing choice. Instead, the court applied the general doctrine of forfeiture, which holds that a reviewing court will not consider a claim of error that could have been, but was not, raised in the trial court.