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Roman v. Superior Court of Los Angeles County11/5/2003
CERTIFIED FOR PUBLICATION
Petitioner Christopher Brian Roman challenges the trial court's denial of his motion to set aside an information under Penal Code section 995. He argues there was insufficient evidence to bind him over for trial for violation of section 368, subdivision (b)(1). That statute punishes felony abuse of a dependent adult under circumstances or conditions likely to produce great bodily harm or death. He argues that the evidence is insufficient to establish the requisite likelihood and that he knew the victim was a dependent adult. We conclude the showing at the preliminary hearing was sufficient in both respects, and hence the section 995 motion was properly denied. We deny the petition for writ of prohibition.
FACTUAL AND PROCEDURAL HISTORY
Lillian R., the mother of John Doe #1, testified that he is autistic, has hydrocephalus, is mentally retarded, and has had three open brain surgeries. John Doe #1 is 25 years old, lives with Lillian R., and is enrolled in training programs for disabled persons. Lillian R. makes most decisions for him because he is unable to do so.
John Doe #1 testified that he was approached by petitioner, who pulled him into his car. Petitioner drove him to a condominium where he told him to watch wrestling on television. Petitioner removed or pulled down John Doe #1's pants and sodomized him. John Doe #1's testimony is ambiguous as to whether petitioner used a condom. On direct examination, he said he had seen petitioner's penis and had seen sperm come out of it. When asked about the sperm, John Doe #1 replied "Condom he put on." When the prosecutor asked if petitioner put on a condom, John Doe #1 nodded in the affirmative, but said "No, he put gel on his penis, gel thing." On cross-examination, he twice said he could not recall whether a condom was used. When asked if he knew what a condom is, he said: "Yeah. It's like when you put a penis that makes the sperm come out, yeah." John Doe #1 said he had seen the petitioner throw a condom in a toilet, but not at the condominium where he was with petitioner.
Los Angeles Sheriff's Detective Stephen French investigated the charges against petitioner. Petitioner admitted he had picked up John Doe #1 and drove him to petitioner's mother's condominium where he gave John Doe #1 a drink of water. Detective French testified petitioner said: "They were there for approximately five minutes and he stated that he was very gentle with him. That was other than some other just stuff personal about him and stuff. That was pretty much the extent of what he told me about the two gentlemen, John Doe Number 1 and John Doe Number 2."
Detective French served search warrants at the homes of petitioner's mother and father. At the father's house, the detective recovered a letter written by a Dr. Robert Bolan dated January 13, 2000 and addressed to Judge Barbara Johnson. The letter stated that petitioner was under care for HIV, and that he needed to be monitored especially closely because he had been infected in November 1998. Detective French discussed this letter with petitioner, who admitted that he had been diagnosed with HIV several years before.
A criminal complaint charged petitioner with forcible sodomy (§ 286, subd. (c)(2)) committed upon John Doe #1 and John Doe #2 (counts 1 and 3); sodomy of a person under the age of 16 on John Doe #2 (count 4, § 286, subd. (b)(2)); dependent adult abuse of John Doe #1 (count 2, § 368, subd. (b)(1)), and lewd acts upon John Doe #2 (§ 288, subd. (c)(1)). A special allegation stated that pursuant to section 12022.85, petitioner committed the sodomy offenses charged in counts 1, 3, and 4 "with knowledge that he/she h
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