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Name: Roman v. Superior Court
Case #: B164733
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 11/05/2003
Subsequent History: None
Summary

Petitioner was HIV-positive, and was held to answer for multiple sex offenses, including a violation of Penal Code section 368, subd. (b)(1) for dependent adult abuse, an offense which requires circumstances likely to produce great bodily injury (g.b.i.) or death. (Petitioner was alleged to have sodomized a mentally retarded adult whose testimony was ambiguous regarding the use of a condom.) In a writ from the denial of his section 995 motion, petitioner argued that there were no circumstances in his encounter with the victim which established the requisite likelihood of g.b.i., and that his HIV status did not satisfy that element under People v. Guevara. The appellate court here rejected the argument, finding that Guevara was wrongly decided. There was a rational basis to entertain a strong suspicion that the forcible sodomy committed on the victim exposed him to the likelihood of g.b.i. or death, and the magistrate could infer from the victim’s ambiguous testimony that a condom was not used. Further, there was sufficient evidence from which the magistrate could strongly suspect that petitioner was aware that the victim was a dependent adult during their interaction.