HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/LOVE.ASC

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/* This case is reported at 226 Cal.App. 3d 736. The case upholds
the constitutionality of testing convicted prostitutes for HIV.
*/

First Dist., Div. Four.

Dec. 28, 1990.



APRIL LOVE et al., Petitioners, v.

THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent; THE PEOPLE, Real Party in Interest.



OPINION

REARDON, J.-Petitioners were convicted in the San Francisco
Municipal Court of violating Penal Code section 647, subdivision
(b) (soliciting an act of prostitution). [footnote 1] Pursuant to
Penal Code section 1202.6, they were ordered to undergo AIDS
counseling and testing. [footnote 2] A petition for writ of
mandate was filed in respondent superior court on behalf of
petitioners and all others similarly situated, challenging the
constitutionality of the statutory testing requirement.
Respondent court stayed all testing and ordered the People to
file a return. Thereafter, respondent court denied the petition
and this petition followed.

Petitioners challenge the testing requirement of the statute on
the grounds that it (1) violates their Fourth Amendment right to
be free from unreasonable searches; (2) does not comport with the
requirements of due process; and (3) denies them equal
protection. We conclude that the testing requirement is
constitutional and deny the relief requested.



DISCUSSION

I.   The Testing Mandated by Penal Code Section 1202.6 is a
Reasonable Search Under the Fourth Amendment

(1)  It is undisputed that "compulsory blood tests are searches
subject to the Fourth Amendment, not only because of physical
penetration for removal of bodily fluid, but because of
subsequent chemical testing leading to the revelation of private
medical information." (Johnetta J. v. Municipal Court (1990) 218
Cal.App.3d 1255, 1272 [267 Cal.Rptr. 666]; Skinner v. Railway
Labor Exec. Assn. (1989) 489 U.S. 602 [103 L.Ed.2d 639, 109 S.Ct.
1402].)  (2)  It is also undisputed that the control of a
communicable disease is a valid exercise of the state's police
power: "The adoption of measures for the protection of the public
health is universally conceded to be a valid exercise of the
police power of the state, as to which the legislature is
necessarily vested with large discretion not only in determining
what are contagious and infectious diseases, but also in adopting
means for preventing the spread thereof." (In re Johnson (1919)
40 Cal.App. 242, 244 [180 P. 644] [quarantine for venereal
disease]; Jacobson v. Massachusetts (1905)197 U.S. 11 [49 L.Ed.
643, 25 S.Ct. 358] [mandatory vaccination for smallpox]; In re
Halko (1966) 246 Cal.App.2d 553 [54 Cal.Rptr. 661] [quarantine
for tuberculosis].) It has been held that the "'determination by
the legislative body that a particular regulation is necessary
for the protection or preservation of health is conclusive on the
courts except only to the limitation that it must be a reasonable
determination, not an abuse of discretion, and must not infringe
rights secured by the Constitution.' [Citations.]" (246
Cal.App.3d at pp. 556-557, quoting DeAryan v. Butler (1953) 119
Cal.App.2d 674, 682 [260 P.2d 98].)  (3)  The Fourth Amendment,
of course, does not prohibit all searches but only those that are
unreasonable (United States v. Sharpe (1985) 470 U.S. 675, 682
[84 L.Ed.2d 605, 613, 105 S.Ct. 1568]), and the reasonableness of
a particular search "is judged by balancing its intrusion on the
individual's Fourth Amendment interests against its promotion of
legitimate governmental interests." (Delaware v.  Prouse (1979)
440 U.S. 648, 654 [59 L.Ed.2d 660, 667-668, 99 S.Ct. 1391], fn.
omitted.)

(4)  Where the state in the exercise of its police power mandates
testing for the protection and preservation of the health or
safety of its citizenry, such testing may be upheld, against a
Fourth Amendment challenge that the testing is "without a warrant
and without probable cause or any sort of individualized
suspicion," under the "special needs" doctrine. (Johnetta J,
supra, 218 Cal.App.3d at p. 1273; Skinner, supra, 489 U.S. at p.
619 [103 L.Ed.2d at p. 661]; Treasury Employees v. Von Raab
(1989) 489 U.S. 656 103 L.Ed.2d 685, 109 S.Ct. 1384].) In
upholding mandatory drug testing Of certain customs service
employees in sensitive positions, the court in Von Raab, a
companion case to Skinner, explained the "special needs" doctrine
as follows: "[N]either a warrant nor probable cause, nor, indeed,
any measure of individualized suspicion, is an indispensable
component of reasonableness in every circumstance. [Citations.] .
. . [W]here a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law enforcement,
it is necessary to balance the individual's privacy expectations
against the Government's interests to determine whether it is
impractical to require a warrant or some level of individualized
suspicion in the particular context." (id., at pp. 665-666 [103
L.Ed.2d at p. 702.)

In Skinner, the court, in upholding mandatory blood, breath and
urine testing of railroad employees for alcohol and drugs, found
that the "special need" for public safety overcame the absence of
probable cause or individualized suspicion. Recently, in Johnetta
J., Division Five of this District analyzed the constitutionality
of the mandatory AIDS testing provision of Health and Safety Code
section 199.97, enacted by the people in 1988 as part of
Proposition 96. The section provides generally for AIDS blood
testing of persons charged in a criminal complaint where there is
probable cause to believe that a possible transfer of bodily
fluid occurred between the accused and a public safety officer.
Applying the Skinner analysis, the Johnetta J. court held the
testing requirement to be a reasonable search notwithstanding the
fact (1) that there was no probable cause or individualized
suspicion that the defendant, who had bitten a police officer,
was afflicted with AIDS and (2) that saliva transfer as a means
of contracting AIDS was only a "theoretical possibility
(Johnetta J. v. Municipal Court, supra, 218 Cal.App.3d at p.
1279.) The special need identified in Johnetta J. was the state's
interest in protecting the health and safety of its employees
faced with the possibility of becoming infected with HIV in the
line of duty.

Our task, then, as was our colleagues' in Johnetta J, is to
determine, with respect to Penal Code section l202.6, [footnote
3] "(1) whether the blood testing scheme arises from a 'special
need' beyond the needs of ordinary law enforcement and (2) if so,
whether the intrusion . . . is justified by that need."

(Johnetta J, supra, 218 Cal.App.3d at p. 1274.)



A.   The Statute

In 1988, the Legislature enacted Senate Bill No. 1007 adding
sections 1202.6, 647f, 1202.1 and 12022.85 to the Penal Code.
(Stats. 1988, ch. 1597,  1-4 [No. 6, Deering's Adv. Legis.
Service, pp. 6328-6330.]) [footnote 4] Section 1202.6 mandates
AIDS education for any person convicted of violating section 647,
subdivision (b) and requires the court to order the defendant to
submit to testing for AIDS. (1202.6, subd. (a).) The report of
the test must be furnished to the court and the State Department
of Health Services. The report must be maintained as confidential
"except that the department shall furnish copies of any such
report to a district attorney upon request." (1202.6, subd. (g).)
The section further requires the court to furnish the defendant
with a copy of the test results at sentencing. If the results are
positive, the court must advise the defendant that a subsequent
conviction of prostitution will be treated as a felony ( 647f).
(1202.6, subd. (c).)



B.   The Special Need

Although section 1202.6 does not itself contain a statement of
purpose as did the initiative measure in Johnetta J. the broad
purpose of the statute is revealed by the provisions of the act,
the legislative history of the act and recent findings of the
Legislature regarding AIDS and AIDS testing. In 1986, the
Legislature declared that "[t]he rapidly spreading AIDS epidemic
poses an unprecedented major public health crisis in California,
and threatens, in one way or another, the life and health of
every Californian." (Health & Saf. Code,  199.45, subd. (a).) The
Legislature identified sexual contact as a primary means of
transmitting the AIDS virus and "prostitutes who pass on the
infection to their clients" as a specific group of concern.
(Health & Saf. Code,  199.46, subds. (h), (k).) Testing has been
seen to have a preventive aspect in the spread of the disease. In
its return, the People direct our attention to the 1986
publication of the United States Public Health Services entitled
"Guidelines for Counseling and Antibody Testing to Prevent HIV
Infection and AIDS." (Published in 36 Morbidity and Mortality
Weekly Report pp. 509-515 (Aug. 14, l987).) [footnote 5] The
Service noted that "Counseling and testing [of] persons who are
infected or [are] at risk for acquiring HIV infection is an
important component of prevention strategy . . . . The primary
public health purposes of counseling and testing are to help
uninfected individuals initiate and sustain behavioral changes
that reduce their risk of becoming infected and to assist
infected individuals in avoiding infecting others." (Id., at p.
509.) The guidelines include a recommendation to counsel and test
prostitutes, stating, "Male and female prostitutes should be
counseled and tested and made aware of the risks of HIV infection
to themselves and others. Particularly prostitutes who are HIV-
antibody positive should be instructed to discontinue the
practice of prostitution. Local or state jurisdictions should
adopt procedures to assure that these instructions are followed."
(Id., at p. 513.)

Petitioners suggest that the testing requirement of section
1202.6 "is nothing more than a search for evidence to be used in
the future." This argument, however, by focusing on the testing
requirement, does not constitute a fair reading of the statute
because the argument ignores the significant educational
provisions of the section. The section orders the defendant
convicted of violating section 1202.6 to complete instruction in
the causes and consequences of AIDS (1202.6, subd. (a)) and
requires an "AIDS prevention education program  to provide "at a
minimum" information about the disease and the "resources for
assistance" to those who receive a positive test result (1202.6,
subd. (d)).

The testing of persons convicted of violating section 647,
subdivision (b), and the subsequent penalty enhancement for
continued violation of the section by persons with a positive
test are a means to deter acts known to spread the disease.
Section 1202.6 addresses the problem of the awareness of members
of a high-risk group of their HIV status for their own protection
and that of those to whom they could transmit the virus.
[footnote 6] We conclude that the testing requirement of section
1202.6 serves an obvious and compelling "special need."

C.   Balancing the Special Need Against the Intrusion

Having concluded that the testing provision of section 1202.6
advances a legitimate governmental interest, we must balance this
aspect of the legislation against the intrusion involved.

With respect to the physical intrusion, i.e., the drawing of
blood to perform the test, it has repeatedly been held that this
type of intrusion is minimal. As stated by the court in Skinner
v. Railway Labor Exec. Assn., supra, 489 U.S. 602 [103 L.Ed.2d
639], "the intrusion occasioned by a blood test is not
significant, since such 'tests are a commonplace in these days of
periodic physical examinations and experience with them teaches
that the quantity of blood extracted is minimal, and that for
most people the procedure involves virtually no risk, trauma, or
pain.'" (Id., at p. 625 [103 L.Ed.2d at p. 665, quoting Schmerber
v. California (1966) 384 U.S. 757, 771 [16 L.Ed.2d 908, 920, 86
S.Ct. 1826]; see also Johnetta J, supra, 218 Cal.App.3d at p.
1277.) In short, "[t]he blood test procedure has become routine
in our everyday life." (Breithaupt v. Abram (1957) 352 U.S. 432,
436 [1 L.Ed.2d 448, 451, 77 S.Ct. 408].) We agree that blood
testing is a minimal physical intrusion.

(5a)  Petitioners contend, however, that the chemical testing of
the blood will reveal private medical information and that this
intrusion is substantial because there is no provision for
confidentiality in the statute. They argue that under section
1202.6 the district attorney may obtain a copy of the blood test
report from the Department of Health Services, and that there is
no provision restricting the district attorney in the use of the
report. The People ask this court to interpret the
confidentiality requirement of section 1202.6, subdivision (g) to
permit disclosure to a district attorney only for the reasons
articulated in section 1202.1, subdivision (c). The People
acknowledge that unjustified dissemination of AIDS test results
could raise constitutional questions (Johnetta J, supra, 218
Cal.App.3d at p. 1278; Whalen v. Roe (1977) 429 U.S. 589, 599 [51
L.Ed.2d64, 73, 97 S.Ct. 869]), and argue that the legislative
intent was to allow dissemination of test results solely for
purposes of criminal investigation of subsequent offenses.

Section 1202.1, as previously noted, was enacted as section 2 of
Senate Bill No. 1007, the same bill that added section 1202.6.
Unlike the scheme set forth in section 1202.6, the results of
AIDS tests performed under section 1202.1 are forwarded to the
Department of Justice, not the Department of Health Services. The
disclosure provision of section 1202.1 reads: "[T]he Department
of Justice shall provide the results of a test or tests as to
persons under investigation or being prosecuted under Section
647f or 12022.85, if the results are on file with the department,
to the defense attorney upon request; and the results also shall
be available to the prosecuting attorney upon request for the
sole purpose of preparing counts for a subsequent offense under
Section 64 7f or sentence enhancement under Section 12022.85."
(1202.1, subd. (c), italics added.)

(6)  "It is settled that '[s]tatutes are to be so construed, if
their language permits, as to render them valid and
constitutional rather than invalid and unconstitutional'
[citation] and that California courts must adopt an inter
pretation of a statutory provision which, 'consistent with the
statutory language and purpose, eliminates doubt as to the
provision's constitutionality' [Citation.]." (People v. Amor
(1974)12 Cal.3d 20, 30 [114 Cal.Rptr. 765, 523 P.2d 1173].)  (7)
A court may look beyond the literal words of a statute when plain
meaning leads to unreasonable results inconsistent with the
purposes of the legislators. (See United States v. American
Trucking Associations (1940) 310 U.S. 534, 543-544 [84 L.Ed.
1345, 1350-1352, 60 S.Ct. 1059].)

(5b)  The aim of the Legislature in enacting Senate Bill No. 1007
was to control the spread of AIDS, in part by providing a
deterrent to prostitution activity by one who knows he or she is
infected with the AIDS virus. To accomplish this goal, the bill
includes a statute enhancing the penalties for subsequent
prostitution offenses by making them felonies. Prosecutors obvi
ously would need access to the results of the AIDS test to
enforce this law. The statutory scheme envisions no other reason
for the prosecutor to obtain or use such information. A
construction without the limitation that the People seek would
allow dissemination of AIDS test results for purposes totally
outside the goal of the legislation and at odds with the
confidentiality concerns demonstrated by the Legislature in its
other AIDS legislation. (Health & Saf. Code,  199.21; Pen. Code,
1202.1; see also Health & Saf. Code,  199.99.)

The People state that the legislative history contains not a
shred of evidence that the Legislature ever considered that the
AIDS testing information, obtained upon a prostitution
conviction, would be disseminated more broadly than the
information obtained upon conviction of a sex crime ( 1202.1), or
that it would be used for purposes other than prosecution of
subsequent prostitution offenses. They refer us to the analysis
of the bill by the Senate Rules Committee, the Senate Judiciary
Committee and the Assembly Public Safety Committee, all of which
reported that the test results would be disclosed in the criminal
investigation of prostitution and mention no other use by law
enforcement. (Sen. Rules Com., Analysis of Sen. Bill No. 1007
(1987-1988 Reg. Sess.) as amended Aug. 29, 1988 at p. 2; Assem.
Com. on Pub. Safety, Analysis of Sen. Bill No. 1007 (1987-88 Reg.
Sess.) as  amended Aug. 29, 1988, at p. 2; Sen. Com. on
Judiciary, Analysis Of Sen. Bill NO. 1007 (1987-1988 Reg. Sess.)
as amended May 4, 1987 at p. 4.) Petitioners do not dispute this
statement, contending only that the construction urged by the
People requires rewriting the statute. We do not rewrite the
statute, however, but simply reject the proposal that the statute
allows the district attorney to use test results for purposes
unrelated to the statute which requires disclosure to that
official. We accept the interpretation urged by the Attorney
General, the chief law officer of the state with direct
supervisory authority over every district attorney in the state.
(Cal. Const., art. V,  13.) The interpretation by this officer
concerning the limitations upon the district attorneys in the
statute is entitled to great weight.

We have balanced the Fourth Amendment interests of those persons
convicted of prostitution against the promotion of the
government's goal of preventing the spread of AIDS. With the
minimal intrusion of a blood test and the disclosure
restrictions, we conclude that the Fourth Amendment balancing
must be struck in favor of the testing requirement.

2.   The Statutory Scheme of Section 1202.6 Comports With Due
Process

(8)  Petitioners also contend that since a person may be
convicted of violating section 647, subdivision (b) without the
commission of a sex act or the transmission of bodily fluid,
there is no reasonable relation between the statute's means and
ends, a requirement that must be met to satisfy both the Fourth
Amendment and the due process clause. (See Hale v. Morgan (1978)
22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 584 P.2d 512]; Johnetta J,
supra, 218 Cal.App.3d at p. 1283, fn. 9.)

The Legislature, as heretofore discussed, has determined that
those who engage in prostitution activities represent a high-risk
group in terms of their own health, in contracting AIDS, and in
terms of the health of others, in spreading the virus. We must
presume that the Legislature "has carefully investigated and has
properly determined" that the legislation is necessary.

(Patrick v. Riley (1930) 209 Cal. 350, 356 [287 P. 455].)
"'[E]xcept where the court can see, in the light of facts
properly brought to its knowledge, that a given police regulation
has no just relation to the object which it purports to carry
out, and no reasonable tendency to preserve or protect the public
safety [or] health . . . , the decision of the legislative body
as to the necessity or reasonableness of the regulation in
question is conclusive.'"

(Sullivan v. City of Los Angeles (1953)116 Cal.App.2d 807, 810
[254 P.2d 590], quoting Odd Fellows' Cemetery Assn. v. San
Francisco (1903) 140 Cal. 226, 233 [73 P. 987].) Accordingly, on
the record before us, we cannot say that the legislative
determination or judgment concerning AIDS and this high-risk
group is unreasonable.

Having so concluded, the fact that there may have been no
transfer of bodily fluid in the commission of an act that results
in a section 647, subdivision (b) conviction is largely
irrelevant. As pointed out in the brief of the people, "whether
or not HIV-carrying fluids were transferred during the particular
act that establishes the predicate for AIDS testing is not the
relevant question. What is relevant is whether and to what extent
the group affected by the statute . . . are members of a group at
high risk for AIDS, and whether and to what extent such persons
threaten to transmit the AIDS virus to the general population."

We recognize the danger to constitutional rights of "blanket
testing requirement of entire classes of persons." (See Johnetta
J., supra, 218 Cal.App.3d at p. 1284.) Testing under section
1202.6, however, applies only when a person has been convicted of
violating section 647, subdivision (b) and has thus exhibited
behavior from which it can be inferred that he or she has been,
and may in the future be, sexually involved with multiple
partners. It imposes no additional penalty for the crime of which
the person is convicted. Although it presents a potential for
increased punishment for a subsequent offense, it also furnishes
information to avoid that enhanced penalty.  We conclude that
there is a reasonable relation between the statute's means and
ends and that petitioners' contention to the contrary is without
merit.



3.   Section 1202.6 Does Not Deny Petitioners Equal Protection of
the Law

(5c)  Petitioners finally contend that section 1202.6 denies them
equal protection. They argue that section 1202.1, which applies
to "violent sexual offenders," limits the use of blood test
information, whereas section 1202.6, which applies "to persons
convicted of far less serious crimes," contains no such
limitation.

Since we have previously concluded that the limitation set forth
in section 1202.1 applies with equal force to section 1202.6,
this contention must be rejected.



CONCLUSION

The alternative writ, having served its purpose, is discharged;
the petition for peremptory writ is denied. Pending finality of
this opinion a the orders requiring testing remain stayed
pursuant to the California Supreme Court's order.



Anderson, P. J., and Poche', J., concurred.



Petitioners' application for review by the Supreme Court was
denied March 14, 1991.

FOOTNOTES:

1.   Section 647 provides in relevant part: "Every person who
commits any of the following acts is guilty of disorderly
conduct, a misdemeanor: . . . [] (b) Who solicits or who agrees
to engage in or who engages in any act of prostitution . . . . As
used in this subdivision, 'prostitution' includes any lewd act
between persons for money or other consideration."

2.   Acquired immune deficiency syndrome (AIDS) is evidenced by
the presence of antibodies to the human immunodeficiency virus
(HIV) in a person's blood. The terms "AIDS testing" and "HIV
testing" are used interchangeably in this opinion.

3.   Unless otherwise indicated, all further statutory references
are to the Penal Code.

4.   Section 1202. I requires AIDS testing of persons convicted
of certain sex offenses, and section l2022.85 provides for a
penalty enhancement upon a subsequent conviction of a person with
knowledge that he or she has tested positive for AIDS.

5.   The People in their return have requested this court to take
judicial notice of the Public Health Service Guidelines. The
Public Health Service, administered by the Surgeon General, is a
branch of the Department of Health and Human Services. (42 U.S.C.
202.) We may take judicial notice of the guidelines pursuant to
Evidence Code section 452, subdivision (b).

(Grinnell v. Charles Pfizer & Ca (1969) 274 Cal.App.2d 424, 444
[79 Cal.Rptr. 369].) Having heard no response from petitioners,
we take judicial notice as requested.

6.   In 1989, the Legislature found and declared that "people
with HIV infection may not avail themselves of early intervention
services unless they are aware of the availability of the
services and the efficacy of early intervention in prolonging
life. This awareness of HIV-infected persons is critical to
maximizing the benefits of early intervention." (Health & Saf.
Code, section 144.)