Unreported / Non-Citable
Background
A Sonoma County jury convicted Gerald Bloom on March 6, 2025, of eight counts of lewd or lascivious acts upon two children under 14—four under Penal Code section 288, subdivision (b)(1) (force or fear) and four under subdivision (a)—and found true the special allegations. In a bifurcated proceeding, the trial court found true three of four aggravating circumstances under California Rules of Court, rule 4.421(a)(3), (8), and (11). On July 21, the court imposed an aggregate term of 200 years to life, 25 years to life per count, and ordered a blood test for HIV pursuant to section 1202.1.
The victims testified to repeated touching and forced hand contact. Jane Doe made a recorded pretext call in which Bloom apologized but said he did not remember the events and had problems doing things while asleep. Bloom denied inappropriate touching, testifying that he had been told he moved, thrashed, and tried to snuggle in his sleep; his wife described similar sleep behavior. Dr. Albert Kastl, a doctor of psychology, evaluated Bloom for pedophilic traits or tendencies and did not find anything that suggested pedophilic behavior.
On appeal, Bloom challenged the trial court's failure to instruct on unconsciousness without a defense request and the sufficiency of the evidence supporting the HIV/AIDS testing order. The People disputed the instructional claim but conceded the testing point.
The Court’s Holding
The First Appellate District, Division Two, held that no sua sponte unconsciousness instruction was required. A trial court must instruct on its own motion if the defendant appears to rely on the defense, or if there is substantial evidence supporting it and it is not inconsistent with the defense theory. Because a person who appears conscious is presumed conscious, Bloom needed evidence rebutting that presumption. The victims' accounts of tight hand gripping that hurt, reaching over bed railings, replacing a hand after a victim turned away, and other purposeful conduct supported consciousness. Bloom never testified that he was asleep during any incident and presented no medical or expert evidence about his mental state at the time; his failure to remember, general sleep movements, and the victims' uncertainty were insubstantial.
The court also found that unconsciousness was not Bloom's apparent trial defense and was arguably inconsistent with his position that the abuse never occurred. Alternatively, any instructional omission was harmless: the jury was instructed that the acts had to be willful and committed with the specified sexual intent, so its guilty verdicts necessarily resolved consciousness against Bloom. The court relied on the overwhelming evidence of purposeful conduct and rejected the argument that jury questions about the legal meaning of force showed a close dispute over consciousness or intent.
On testing, the court accepted the People's concession. Although section 288 offenses fall within section 1202.1, testing requires 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. The proven conduct—hand contact and victims touching Bloom's penis or buttocks—showed no fluid transmission, and because the statute conditions a testing order on probable cause, Bloom could challenge the sufficiency of the evidence despite no trial objection. Rather than simply striking the order, the court vacated it and remanded for a further hearing if the prosecution requests one. The testing order was reversed; the judgment was otherwise affirmed.
Key Takeaways
- A defendant's inability to remember alleged acts, without substantial evidence of unconsciousness during those acts, does not require a sua sponte unconsciousness instruction.
- Purposeful conduct described by the victims supported the presumption of consciousness, while general evidence of thrashing or touching others in sleep did not establish unconsciousness during the charged incidents.
- Any instructional error was harmless because the jury's willfulness and sexual-intent findings necessarily resolved consciousness against Bloom.
- An HIV/AIDS testing order under section 1202.1 requires probable cause of transfer of a bodily fluid capable of transmitting HIV, and the evidentiary support may be challenged despite no trial objection.
- The limited remand permits a further testing hearing if the prosecution requests one; it does not reopen the affirmed convictions or sentence.
Why It Matters
The decision applies the substantial-evidence threshold for affirmative-defense instructions to a record containing sleep-related statements but no testimony that the defendant was asleep during the offenses, distinguishing uncertainty or lack of memory from affirmative evidence of unconsciousness. It also explains how a defense asserting that no abuse occurred conflicts with one assuming the acts occurred while the defendant was unconscious, and ties harmless error to the jury's express findings of willful conduct and sexual intent.
The testing portion preserves the statutory probable-cause safeguard while allowing the prosecution to seek additional evidence on remand. Marked not to be published in official reports, the disposition leaves the convictions and 200-years-to-life sentence intact and reverses only the HIV/AIDS testing order.