PEOPLE v. ROBINSON

Appellant’s Petition for Review

Cal.July 29, 2014

$ 220247 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,) )Ss Plaintiff and Respondent, ) ) 4" Crim. G048155 Vv. ) ) Sup. Ct. No. 11WF0857 LEE HOANG ROBINSON, Defendant and Appellant. N e u e ” p e ’ e e e e ” APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY Honorable JAMES A. STOTLER,JudgePresiding APPELLANT'S PETITION FOR REVIEW LEONARD J. KLAIF State Bar No. 140937 P.O. Box 1657 Ojai, California 93024 (805) 640-9659 (805) 640-9679 FAX ljkesq@roadrunner.com Attorney for Appellant By appointment of the Courtof Appeal underthe Appellate Defenders, Inc. independent case system SUPREME COURT FILED JUL 29 2014 Frank A. McGuire Clerk ne Sey ete RETES IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, ) )Ss Plaintiff and Respondent, ) ) 4™ Crim. G048155 v. ) ) Sup. Ct. No. 11WF0857 LEE HOANG ROBINSON, ) ) Defendant and Appellant. ) ) APPEAL FROM THE SUPERIOR COURT OF ORANGE COUNTY Honorable JAMES A. STOTLER,Judge Presiding APPELLANT'S PETITION FOR REVIEW LEONARD J. KLAIF State Bar No. 140937 P.O. Box 1657 Ojai, California 93024 (805) 640-9659 (805) 640-9679 FAX ljkesq@roadrunner.com Attorney for Appellant By appointmentof the Court of Appeal underthe Appellate Defenders,Inc. independent case system TABLE OF CONTENTS TABLE OF AUTHORITIES PETITION FOR REVIEW ISSUES PRESENTED FOR REVIEW NECESSITY OF REVIEW STATEMENT OF THE CASE STATEMENT OF FACTS ARGUMENT I. THE CONVICTIONS ON COUNTS ONE, TWO, FOUR, AND FIVE MUSTBE DISMISSED AND NOT REDUCED TO MISDEMEANORS. I. THE JUDGMENT WITH RESPECT TO COUNTS SIX THROUGH NINE MUST BE REVERSED AND THESE COUNTSDISMISSED AS THE EVIDENCE WASINSUFFICIENT TO SUSTAIN THESE ALLEGATIONS. NOT TO DO SO WOULD VIOLATE APPELLANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS. A.Introduction B. Standard of Review. C. The Evidence WasInsufficient To Support The Verdicts On Counts Six Through Nine. D. The Guilty Verdict On Insufficient Evidence Violates Appellant’s Right To Due Process As Guaranteed By The Fourteenth Amendment To The United States Constitution. CONCLUSION CERTIFICATE OF COMPLIANCE EXHIBIT A ii 11 I] 15 15 16 17 24 25 26 27 TABLE OF AUTHORITIES CASES Jackson v. Virginia (1979) 443 U.S. 307 Mikes v. Borg (1991) 947 F.2d 353 People v. Babaali (2009) 171 Cal.App.4" 982 People v. Bautista (2008) 163 Cal.App.4” 762 People v. Johnson (1980) 26 Cal.3d 557 People v. Martinez (1999) 20 Cal.4" 225 People v. Morales (2013) 212 Cal.App.4"" 583 People v. Morris (1988) 46 Cal.3d 1 People v. Pensinger (1991) 52 Cal.3d 1210 People v. Pham (2009) 180 Cal.App.4th 919 People v. Raley (1992) 2 Cal.4™ 870 People v. Reilly (1970) 3 Cal.3d 421 People v. Robinson (2014) 227 Cal.App.4" 387 People v. Smith (2010) 191 Cal.App.4" 199 People v. Steele (2000) 83 Cal.App.4th 212 UNITED STATE CONSTITUTION Fourteenth Amendment -ii- PAGE 16 24 3,11, 12, 13 18, 20, 21, 22, 23 16 11 22, 24 17 16 13, 17, 18, 19, 20, 21, 23, 24 17 16 15, 24 STATUTES Penal Code section 243.4(c) section 243.4(e)(1) section 261 (a)(4) section 289(a)(1) section 289(d)(4) section 1237(a) California Rules of Court rule 8.500(a) rule 8.500(b) -iii- 2, 3,4, 5, 11, 12, 13, 14, 15, 17 2, 3,4, 5, 11, 12, 13, 14, 16 4 4 IN THE COURT SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,) ys Plaintiff and Respondent, ) ) 2d Crim. G048155 Vv. ) ) Sup. Ct. No. ) 11WF0857 LEE HOANG ROBINSON, ) (Orange County) ) Defendant and Appellant. ) ) PETITION FOR REVIEW TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA Pursuant to Rule 8.500, subdivision (a), of the California Rules of Court, appellant, LEE HOANG ROBINSON,respectfully requests that this Court review the opinion of the Court of Appeal, Fourth Appellate District, Division Three, affirming the judgment. The opinion wascertified for publication and can be found at 227 Cal.App.4™ 387. A copy of the Court of Appealopinion,filed June 24, 2014,is attached hereto as Exhibit A. A Petition for Rehearing was notfiled. Review is sought pursuant to Rule 8.500, subdivision (b), of the California Rules of Court, to settle important questions of law and to insure uniformity of decision. ISSUES PRESENT FOR REVIEW Appellant wasconvicted,inter alia, of eight counts of sexual battery by fraud (counts one, two, and four through nine), in violation of Penal Code section 243.4, subdivision (c). The Court of Appeal affirmed the judgment with respect to countssix, seven, eight, and nine. The Court modified the judgment with respect to counts one, two, four, and five by reducing said convictions to misdemeanor sexual battery in violation of Penal Code section 243.4, subdivision (e)(1). The issues presented for review are: 1) whether misdemeanorsexualbatteryis a lesser included offense to sexual battery by fraud allowing the modification of the judgment with respect to counts one, two, four, and five; and 2) whether the evidence with respect to counts six, seven, eight, and nine was sufficient to sustain the judgment with respect to these counts, and whether a conviction based upon the evidence presented violates appellant’s federal constitutional right to due process. NECESSITY OF REVIEW 1) Thereis a split of authority among the Courts of Appeal on the question of whether or not misdemeanorsexualbattery,in violation of subdivision (e)(1) of Penal Codesection 243.4,is a lesser included offense to sexual battery by fraud,in violation of subdivision (c) of section 243.4. (See, People v. Babaali (2009) 171 Cal.App.4" 982 and People v. Smith (2010) 191 Cal.App.4" 199.) Review should be grantedto settle this question of law. 2) The question of whetheror not the evidence was sufficient to sustain the judgmentwith respect to counts six through nine presents the issue of the interpretation and application of Penal Code section 243.4, subdivision (c). STATEMENTOF THE CASE Appellant, LEE HOANG ROBINSON,waschargedin a nine count information with eight counts of sexual battery by fraud (counts one, two, and four through nine; Pen. Code,sect. 243.4, subd. (c)), and a one count of sexual penetration by force (count three, Pen. Code, sect. 289, subd.(a)(1).) (C.T.p. 118.) A jury convicted appellant as charged on counts one throughnine. (C.T. pp. 214-222.) On January 18, 2013, appellant was sentenced to a prison term of twelve years, as follows: the court chose count one as the principle term, and imposed the middle of three years; a full consecutive term of six years was imposed on county three; consecutive termsof one year (one-third the middle term) each were imposed on counts four, six, and eight. Concurrent terms of three years were imposed on counts two,five, seven, and nine. (C.T. p. 297.) On March 14, 2013, appellantfiled a timely Notice of Appeal. (C.T.p. 300; Pen. Code, § 1237, subd.(a).) The Court of Appeal modified the judgment by reducing the convictions on counts one, two, four, and five to misdemeanors,in violation of subdivision (e)(1) of Penal Code section 243.4, and remanding for a new sentencing hearing. (Slip opn,p. 4.) STATEMENTOF FACTS A. Prosecution Case-Counts One, Two, and Three. On March 10, 2010, Trang T. was at the Target store on Brookhurst, when appellant approached Trangandtold that he owned the nearby Queen Beauty Salon and that he was scheduled to train students to do facials, but the model did not show up. Appellant offered to pay Trang $40.00 if she would serve as a modelfor a facial and a full body massage. (1 R.T. pp. 211-212.) Trangarrived at the salon ten minutes before 6:00 p.m. Appellant greeted her andled her to a room in the back. Appellant gave her a robe, told her to get undressed,andleft the room. (1 R.T. pp. 213, 215.) Trang did not think anything unusual, as she had had facials and full body massagesin the past. (1 R.T. p. 215.) Appellant returned to the massage room,told Trang that the students had not yet arrived, and asked herto lie down on the massagetable; when she had donethis, appellant covered her eyes. (1 R.T. p. 216.) A short time later, Trang heard murmuringsand doors slammingshut, so she assumed that she and appellant werealone in the salon. (1 R.T. p. 217.) Appellant put someoil on his hands and massaged Trang’s face for a few minutes, then massaged her armsfor a short time, and then massaged her feet and legs up to her knees. Appellant then removed the blanket and robe which had been covering her, exposing her breasts. Trang asked what 5 appellant was doing. Appellant said that this was “standard procedure” and that Trang should not worry and should “just relax.” (1 R.T. pp. 218-219.) Trang becamefearful because no students had arrived and she wasalone with appellant. (1 R.T. pp. 219-220.) Appellant continued massaging Trang’s breasts, assuring her thathis clients loved it when he did this. (1 R.T. p. 220.) Appellant worked his way down Trang’s body, and put his handsinside her panties onto the surface area of her vagina. (1 R.T. pp. 220-221.) After having Trang turn over onto her stomach, he continued to massageherstarting on her neck, and going down herbackto her butt. Appellant again put his hand inside Trang’s panties, and this time put a finger inside Trang’s vagina. (1 R.T. pp. 222-223.) Trang did not verbally protest as she was afraid as she was alone and appellant wasbigger than she was. (1 R.T. p. 222.) When Tranginsisted that she had to leave, appellant started to end the massage. (1 R.T. p. 225.) As he wiped the massageoil off Trang’s body, he again touched hervagina. (1 R.T. p. 226-227.) At that point Trang had enough, got up, grabbed her clothesandleft. (1 R.T. pp. 227-228.) B. Prosecution Case-Counts Four and Five. In July of 2010, Odette M. worked in a Pizza Hut which wasin the same shopping center as Queen Beauty Salon. (1 R.T. pp. 254-255.) Sometime during the morning of July 17, 2010, Odette walked into the Salon to buy a hair product. Appellant, whom Odette had met a few daysearlier in the shopping center’s parkinglot, asked her if she could come back the next evening to serve as a modelfora facial. (1 R.T. pp. 258-259.) At 9:00 that evening, Odette returned after making a pizza delivery, and ran into appellant in the parking lot. Appellant suggested that she come over for a demonstration as Odette had mentionedthat she had sensitive skin when they haddiscussed her serving as a facial model. (1 R.T. pp. 259-261.) After clocking out at work, Odette returned to the Queen Beauty; nobody other than appellant waspresent as the salon had closed for the day. (1 R.T. p. 262-263.) Appellant escorted Odette to a back massage room,told herto take off her clothes and put on a robe, and heleft the room. When appellant returned, he had herlie down face up and coveredher eyes. (1 R.T. p. 264.) Appellant told Odette that he was using an excellentoil, and started on her armsand legs. When Odette objected to appellant massaging herfeet, he immediately stopped. (1 R.T. p. 266.) He then opened Odette’s robe and grabbedhernipples; she said “no” and appellant said it was a normalofhis massageand she should relax. Odette kept repeating that she wasn’t comfortable, and started to feel angry and “pissed off.” (1 R.T. pp. 267-268, 270-271.) As appellant continued the massage, appellant put his handsinside 4 Odette’s panties. She repeatedly said “Please don’t do it” and “Please stop. It’s uncomfortable.” Appellant simply responded that Odette should “relax” and “It’s okay. I do this all the time.” (2 R.T. pp. 281-282.) He touched her entire public area, but did not penetrate Odette’s vagina. (2 R.T. p. 283.) She did not just leave because she was afraid appellant had a weaponanddid not know if anyoneelse wasin the building. (2 R.T. p. 290.) Eventually, appellant wiped the oil off Odette’s body and removed the facial mask. Odette got dressed andleft after giving appellant her phone number which appellant asked for so he could arrangementsfor the facial demonstration the following day. (2 R.T. pp. 291-292, 295-296.) Odette went to the police less than a weekafter the incident; she did not immediately report the incident because she was afraid, and because she was embarrassed. (2 R.T. pp. 297, 300.) Odette filed a lawsuit against appellant, seeking $2,500,000.00 in damages. (2 R.T. p. 301.) C. Prosecution Case-Counts Six, Seven, Eight and Nine Dianna N. was workingasa sales clerk at West Drug Pharmacy; she met appellant when he cameinto the store to make a payment onhis telephonebill. (1 R.T. pp. 92, 96.) Appellant told Dianna that he worked at a beauty salon and offered hera free facial to treat her acne. He told her that students from a nearly beauty college would be there to observe. (1 R.T.p. 97.) That evening Dianna spoke with her motherand hersister, Christine N. about the offer and they agreed they would go together. (1 R.T. pp. 98, 152.) Whenthe family arrived at the salon, appellant offered to give Christine a facial as well. (1 R.T. pp. 115, 154.) Appellant directed the sisters to the facial room andleft them after asking them to changeinto the robes. (1 R.T. pp. 115, 154-156.) Their mother stayed in the waiting room and watched a movie. (1 R.T. p. 132.) Both sisters removed their shirts and bras, but did not removetheir pants. (1 R.T. pp. 116-117, 155-156.) Appellantfirst gave Diannaa facial, and after placing a clay maskoverherfaceleft the room for a few moments. (1 R.T.p. 120.) Whenhereturned,he told the sister that he would also give them “European massages”in addition to the facials. (1 R.T. pp. 119-120.) Appellant massaged Dianna’s arms and breast area, and he then said he was going to unbutton her pants so he could massage herthighs. (1 R.T. pp. 120, 148.) Appellant pulled Dianna’s pants down to mid-thigh level, and massaged her thighs. Diannadid not say anything as she was wearinga facial mask and becauseshetrusted appellant. (1 R.T. p. 122-123.) Appellant then rubbed Dianna’s vaginal area for a minute or two. He then moved to Christine, who was unable to see appellant massaging Dianna. (1 R.T.pp. 123-124, 159.) Appellant massaged Christine, first working on her arms, stomach, and breasts; he did not touch her nipples but did massage the areas “around the 9 outer areas” of them. (1 R.T. pp. 159-161.) When appellant started to unbutton Christine’s pants, she put a handonhis to stop him because she “didn’t feel comfortable.” (1 R.T. p. 161.) Appellant reassured Christine that he regularly did this as part of a massage, and that she should not worry. Christine removed her hands, and appellant unbuttoned her pants and pulled them and her underpantsto her thighs. (1 R.T. pp. 162-164.) When appellant tried to put his finger inside Christine’s vagina, she stopped him by removing his hand andpulling her underwear back up. Appellant continued to massage Christine’s arms and breasts. (1 R.T. pp. 166-167.) While they were in the salon, Dianna did not say anything because she was “fearful of what would happen”if she warned hersister. (1 R.T. p. 125.) After they left the salon, the sisters discussed with each other what had occurred, but did not discuss the details and did not say anythingto their mother. (1 R.T. pp. 125, 173.) A month or two afterward Diannatold heroldersister, Kim, about what had happened. At Kim’s urging, Dianna and Christine went to the police in August. (1 R.T. pp. 127, 174, 194, 197.) Appellant told police that he did not do full body massages, only facials. Healso told police that the women hegavefacials to removed only their outer top clothing, but left on their bras. (2 R.T. pp. 325-326.) 10 ARGUMENT I. THE CONVICTIONS ON COUNTSONE, TWO, FOUR AND FIVE MUST BE DISMISSED AND NOT REDUCED TO MISDEMEANORS. Appellant contendsthat these counts should be dismissed, and not reduced to misdemeanors. As respondent acknowledgesthereis a split of authority as to whether Penal Codesection 243.4, subdivision (e)(1) is a lesser included offense of section 243.4, subdivision (c). Appellant concedes that an appellate court has the authority to reduce a conviction to a lesser offense when the evidence supports the lesser but not the charged offense ifthe lesser is necessarily included in the charged crime. (People v. Martinez (1999) 20 Cal.4" 225, 241.) A crimeis a lesser included offense to the greater “when the greater crime cannot be committed without necessarily committing the other offense.” (People v. Steele (2000) 83 Cal.App.4" 212, 218.) Appellant contends that subdivision (e)(1) is not a lesser included offense to subdivision (c) of Penal Code section 243.4, and the Court of Appeal erred in holding to the contrary. In People v. Babaali, supra, 171 Cal.App.4" 982, the defendant was convicted of one count of sexual battery by fraud (Pen. Code,sect. 243.4, subd. (c)) and one count of attempted sexual battery by fraud (Pen. Code sects. 664/243.4, subdivision (c)). On the defendant’s motion for a newtrial, the court modified the verdicts to “what it believed to be the lesser included 11 offenses of sexual battery (sect. 243.4, subd. (e)(1)) and attempted sexual battery (sects, 664/243.4, subd. (e)(1)).” (dd, at p. 987.) The Court of Appeal reversed the judgment reducing the charges and dismissed the allegations, holding that sexual battery and attempted sexual battery were not lesser included offenses to sexual battery by fraud. (Ibid.) The Babaali decision reasoned that the essence of the crime of sexual battery by fraud wasthe fraudulent inducement to obtain the victim’s consent by false pretenses. (/d, at pp. 987-988.) By contrast, sexual battery requires that the touching be “against the will” of the victim. (Id, at p. 989.) The Babaali opinion then applied the standard test for determining whether or not one offense is a lesser to another. (Id, at p. 994.) The court concluded that the two statutes in question had two elements in common,that of a touching of an intimate part of another and that the touching be for sexual gratification or arousal. However, the Babaali opinion noted that subdivision (e)(1) requires that the touching be “against the will” of the victim while subdivision (c) requires that the victim be “unconscious of the nature of the touching” due to the defendant’s fraudulent misrepresentation. The Babaali opinion noted that the use of the word unconscious in subdivision (c) does not have the “ordinary or colloquial meaning;” ratherin this subdivision the word unconscious meansthat the victim was tricked into submitting to the touching. The Court held that “committing an intimate touching when the victim ‘at the time 12 unconscious of the natureof the act’” due to fraud is not the same as “committing a touching ‘against the (victim’s) will.’” Thus, the Babaali opinion concludesthat subdivision (e)(1) is not a lesser included offense to subdivision (c). (Id, at pp. 995-996.) Whilethe decision in People v. Smith, supra, 191 Cal.App.4" 199, disagreed with the holding in Babaali, the Smith case is not directly on point. In Smith, the defendant was convicted,inter alia, of sexual battery in violation of subdivision (e)(1) of Penal Codesection 243.4. On appeal, the defendant contended thatthis charge had to be reversed; he claimed that the victim was unconscious due to drug and alcoholintoxication, and as such the elementof this event requiring that the act be “against the victim’s will” was inapplicable. (/d, at pp. 201, 205-209.) The Smith opinion pointedly disagreed with the majority opinion in Babaali, and found that a person whois “unconscious” due to intoxication cannot give consent. (Id, at pp. 208-209.) Appellant contendsthat Babaali is better reasoned than Smith, and should be followed by this Court. The Smith opinion omits any mention of the discussion in cases such as People v. Pham (2009) 180 Cal.App.4" 919, in which the Court explained that the 1992 amendments to various sex crime statutes, including Penal Code section 243.4, subdivision (c), criminalized fraud in the inducementbecauseofthe difficulty of securing convictions undercircumstancesidentical to those in this matter. In other words, a new 13 crime wasnecessary to criminalization of sexual acts where “lack of consent” was absent wherethe victim was fraudulently induced to “consent” to the act, becauselack of consent was not found in these cases. Thus, section 243.4, subdivision (e)(1) is not a lesser included offense to section 243.4, subdivision (c), as the enactmentof (c) was necessary to criminalize that which was not covered by subdivision (e)(1). 14 II. THE JUDGMENT WITH RESPECT TO COUNTS SIX THROUGH NINE MUST BE REVERSED AND THESE COUNTS DISMISSED AS THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THESE ALLEGATIONS. NOT TO DO SO WOULD VIOLATE APPELLANT'S FOURTEENTH AMENDMENTRIGHTTO DUE PROCESS. A. Introduction. In counts one, two, and four through nine, appellant was charged with sexualbattery by fraud, in violation of Penal Codesection 243.4, subdivision (c). Counts one and twoinvolved TrangT. as the namedvictim; counts four andfive involved Odette M., as the named victim; in counts six and seven, Dianna N. was the namedvictim; in counts eight and nine, the named victim was Christina N. Counts one, four, six, and eight involved the alleged impropertouching of the respective womens’ breasts, and counts two,five, seven, and nine involvedthe alleged improper touching of their vaginas. In each case,it is alleged that appellant induced the women to cometo a beauty salon he workedat by fraudulently offering them freefacial, telling them that he needed a model for a class he was teaching; no students ever showed up. Once appellant got the womenonthe facial table, he allegedly told them that he would give them Europeanfull body massagesas well, and touched their breasts and vaginas. 15 The Court of Appeal modified the judgment by reducing the chargesin counts one, two, four and five to misdemeanorviolations of Penal Code section 243.4, subdivision (e)(1), but affirmed with respect to counts six through nine. The Court found that the evidence was sufficient for the jury to find that the victims in counts six through nine were “unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose”as required bythe statute. (Slip, opn., p. 10.) Appellant contends that the circumstances and evidence adduced at trial were not sufficiently different between the alleged victims and thus the judgmentwith respect to counts six through nine should be reversed as well. B. Standard of Review. In examiningthe record for sufficiency of the evidence, “’the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"' (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319; emphasis in original.) The appellate court must assumethe truth of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) A reasonable inference, however, 16 may not be based on suspicion, imagination, speculation, surmise, conjecture or guesswork. (People v. Morris (1988) 46 Cal.3d 1, 21.) A jury mayrely on inferences to support a conviction only if those inferences are "of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt" the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 890-891.) Finally, evidence is substantial "onlyif... it reasonably inspires confidence andis credible and of solid value." (Ibid.) C. The Evidence WasInsufficient To Support The Verdict On Counts Six Through Nine. Penal Codesection 243.4, subdivision (c), provides as follows: “Any person whotouches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconsciousofthe nature ofthe act because the perpetratorfraudulently represented that the touching served a professionalpurpose,is guilty of sexual battery.” (Emphasis added.) The gravamen of this statute was explained in People v. Pham, supra, 180 Cal.App.4™ 919. In Pham, the Court notedthat this statute was added in 2002, and is a “criminal hybridization of fraud and molestation.” (Id, at p. 921.) The Court explained that in analyzing the issue of consent in sex crime cases the law traditionally distinguishes between two typesof fraud; “fraud in the fact and fraud in the inducement.” (Id, at p. 925.) The Court explained that “[F]raud in the fact occurs when the defendant obtains the victim’s 17 consent to perform oneact, but instead engages in anotheract.” ([bid.) By contrast, “fraud in the inducement takes place when the defendant makes misrepresentations to the victim in order to get her consentfor a particular act, and then proceedsto carry out that very act.” (Ibid.) The Pham opinion then explained that when thereis fraud in the inducement “courts havehistorically been reluctant to impose criminal liability on the defendantsince the victim consented to the particular act performed, albeit underfalse pretenses. (Ibid; emphasis added.) To closethis loophole, in 2002 the legislature to amend a numberofsex crimestatutes, including Penal Codesection 243.4, to criminalize fraudulently inducing a victim to consent to a sexual act underthe guise that the act “served a professional service.” (People v. Bautista (2008) 163 Cal.App.4" 762, 773; People v. Pham, supra, 180 Cal.App.4"at p. 926.) In Pham,the defendant wasa chiropractor, and all three of the victims wentto him for treatment. (People v. Pham, supra, 180 Cal.App.4" at pp. 922- 924.) The defendant was allegedly touched the breasts of each of the victims and the buttocks of one during whathe representedto be a preliminary examination and/or adjustment procedures. ([bid.) The Court of Appeal upheld appellant’s convictions for violation Penal Codesection 243.4, subdivision (c), notwithstanding his claim that there wasinsufficient evidence that the victims “were not conscious of the sexual nature of the touching due 18 to any fraudulent representations he made to them.” (Id, at p. 924.) In applying thefacts of the case to its view of the purpose andintent of the statute, Pham first noted that a defendant need not expresslytell the victims that the “touching of their intimate parts was for a professional medical purpose.” Rather, a court should look to the “totality of the defendant’s conduct — not just his verbal statements — in determining whether he fraudulently represented the natureof his actions. “ (Jd, at p. 926.) The opinion next found that “physicians occupy a position of implicit trust” and that patients have “the expectation of receiving medical treatmentfor their various injuries” andthat any touching and movingof their bodies was to “diagnose and treat their injuries.” (Jd, at pp. 926-927.) After finding that the evidence supported the jury’s findings that appellant could reasonably concludethat the defendantfraudulently representing to each victim that the inappropriate touching served a professional purpose, the Pham opinion turned to the question of whether the defendant’s fraud “resulted in the victims being unconsciousof the nature of his acts.” (Id, at p. 928.) The opinion held that “the unconsciousness requirement does not require proof the victim was totally and physically unconscious during the acts in question.” (/bid.) Rather, the unconscious requirement simply meansthat the defendant tricked the victim “into submitting to the touching on the pretext it served a professional purpose.” 19 ([bid.) The opinion noted that the conduct of one of the victims reflected a “degree of uncertainty” about the natureof the defendant’sactions, but that the defendant’s “status as a medical provider, his professional demeanor, and the presenceof an assistant” would lead to a belief that the defendant’s actions werepossibly professionally, not sexually, motivated. (Id, at p. 929.) By contrast, appellant fraudulently induced the victims in counts five through nine to cometo his salon by promising each of them facials as models for his non-existent students. Neither of the women, however, could reasonably believe that appellant’s actions in touching their breasts or vaginas wasrelated to his performing a facial. Nor could they have reasonably believed that he wasusing them as a teaching model when no students appeared. Nor did anyof the victims have any reason to have the sort of professional trust in appellant that one would havein a medical professional as in Pham. Below, whenthe victims objected to their intimate parts being touched, appellant stopped that particular conduct. The victims here did not leave, not becausethey believed at any level that the unwanted touching wasrelated to being given a facial, but because they werefrightened and/or embarrassed. Asindicated above,the decision in Pham relied in partin the decision in People v. Bautista, supra, 163 Cal.App.4" 762. In Bautista, the defendant wascharged,inter alia, with a violation of Penal Code section 289, subdivision 20 (d)(4). This subdivision, also added in 2002 aspart of the legislation adding the language of subdivision (c) to section 243.4, and was enacted to serve the same purpose. (People v. Pham, supra, 180 Cal.App.4"at p. 925-926.) Penal Codesection 289, subdivision (d)(4) penalizes an act of sexual penetration of a person who “wasnot aware, knowing,perceiving, or cognizant of the essential characteristic of the act due to the perpetrator’s fraudulent representation that the sexual penetration served a professional purpose whenit served no professional purpose.” In Baustista, the defendant challengedhis conviction for violating Penal Codesection 289, subdivision (d)(4). The defendant, an immigration attorney, wasalso the unpaid pastor and leader of an independent Pentecostal church. In his sermon’s, appellant preached that God spoke through him,thatif anyone wentagainst him they went against God, and spokeforcefully about the need to segregate boysandgirls. (Jd, at pp. 765-766.) The victim in the allegation of a violation of 289(d)(4) told the defendant that she had “done something with a boy” but that she wasstill a virgin. The defendant had the victim accompanyhim to a back room ofthe church wherehe put his fingers insider her vagina to determineif she wasstill a virgin. (/d, at p. 767.) The defendant contendedthat as he was both unlicensed and unpaid he could not have had the purported “professional purpose” and thus there could be no fraud leading the victim to be “unconscious” of the defendant’s 21 sexual intent. (/d, at p. 772.) The Court rejected this contention, finding that as the statute’s focus “is clearly the perpetrator’s fraudulent representation that is used to take advantage of an unknowing and vulnerable victim. The precise nature of the perpetrators employmentis less importantin this context than the appearance ofauthority and legitimate purposethat allows the perpetrator to penetrate the victim without the victim’s understanding of the true nature of the act.” (/d, at p. 775.) By contrast, below appellant did not have an aura of the “appearance of authority” and there simply is no wayeither of the victims, or any reasonable person, could fail to note that the massaging of the breasts and vagina were unrelated to the giving ofa facial, the ruse appellant used to get the victims into the salon and onto the massagetable. The decision in People v. Morales (2013) 212 Cal.App.4" 583,is pertinent in resolving the issue in this matter. In Morales, the defendant was convicted of violating Penal Codesection 261, subdivision (a)(4). This subdivision defines rape as an act of sexual intercourse “where a person is at the time unconscious of the natureof the act...because the victim...(A) was unconsciousor asleep... (or) (C) was not aware, knowing,perceiving, or cognizant of the essential characteristics of the act due to the fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.” The “fraudulent representation language 22 wasaddedaspart of the same 1992 legislation that amended Penal Code section 243 and 268, as discussed above. (Id, at p. 593.) In Morales, the defendant entered the victim’s bedroom immediately after her boyfriendleft, and not announcinghis identity, had sexual intercourse with her. There was evidence that the victim wasasleep at the time the defendantsexually penetrated her. (Id, at p. 586-587.) During closing argument the prosecutor argued that the jury could convict if they foundthat the victim wasasleep or if she were unaware“of the essential characteristics of the act because the defendant deceived herinto believing that she was her boyfriend.” (Ibid.) The Court of Appeal reversed the conviction, holding that the fraud argument presented the jury with an incorrect statementof law, and it was not possible to determine which theory the jury relied upon. (Jd, at p. 586.) Relying on the opinions in People v. Pham, supra, 180 Cal.App.4™ 919, 925, and People v. Babaali, 171 Cal.App.4" 982, 987-988, the Morales decision discussed the difference between fraud in the inducementand fraudin fact. The Court accepted the defendant’s argument that “a person who impersonates anotherin order to accomplish sexual intercourse engages in fraud in the inducement” while the statute criminalizes fraud in the fact only. (Id, at p. 591-592, 595-596; emphasis added.) 23 Applying the principles of the cases discussed aboveto the situation at bar,it is clear that appellant’s fraudulent misrepresented “fraud in the inducement,”thatis appellantlied to the victims to get them to go to the salon with them in the belief that they would receive a free facial in exchangefor serving as models for a facial class that appellant would beteaching. It is equally clear that there was no “fraud in the fact;” there simplyis no waythe victims could reasonably believe that appellant was using them as a model when there were no students, nor could they believe that appellant’s actions in touching their breasts or vaginas waspart ofa facial. As such, the judgment with respect to counts six through nine must be reversed and these counts dismissed. (People v. Pham, supra, 180 Cal.App.4" 919; People v. Morales, supra, 212 Cal.App.4" 583.) D. The Guilty Verdicts On Counts One Through Five On Insufficient Evidence Violates Appellant's Right To Due Process As Guaranteed By The Fourteenth Amendment To The United States Constitution. As the evidence wasinsufficient to support the finding with respect to these counts, the guilty verdicts and imposition of sentence thereon violates appellant's right to due process under the Fourteenth Amendmentto the United States Constitution. (Mikes v. Borg (1991) 947 F.2d 353.) 24 CONCLUSION Based upon the foregoing, the Petition for Review should be granted. Dated: July 28, 2014 25 Respectfully submitted, LEONARD J. KLAIF LEONARD J. KLAIF Attorney for Appellant IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,) es) Plaintiff and Respondent, ) ) 2d Crim. G048155 v. ) ) Sup. Ct. No. ) 11WF0857 LEE HOANG ROBINSON, ) (Orange County) ) Defendant and Appellant. ) ) CERTIFICATE OF COMPLIANCE I, Leonard J. Klaif, appointed counsel for LEE HOANG ROBINSON, herebycertify that I prepared the foregoing Appellant’s Petition for Review on a computer using Microsoft Word, and that the word count generated for this documentis 5,402 words excluding the cover and tables. Dated: July 28, 2014 Respectfully submitted, LEONARD J. KLAIF LEONARD J. KLAIF SBN 140937 Attorney for Appellant 26 EXHIBIT “A” 27 Filed 6/24/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, G048155 V. (Super. Ct. No. 11 WF0857) LEE HOANG ROBINSON, OPINION Defendant and Appellant. Appeal from a judgmentofthe Superior Court of Orange County, James A. Stotler, Judge. Affirmed as modified and remanded for resentencing. Leonard J. Klaif, under appointmentby the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Laura A. Glennon Baggett, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Lee Hoang Robinson lured womeninto his beauty salon after hours by promising to give them free facial treatments. After providing them with minimal facial services, he switched gears and went into massage mode. Henot only massagedtheir arms andlegs, he rubbedtheir breasts and vaginal area, as well. For purposesofthis appeal, appellant admits he touched the womenfor sexual purposes. However, he contends the women were not rendered unaware ofhis lewd intent by virtue of his fraudulent representations, and therefore his convictions for sexual battery by fraud must be reversed. The Attorney General concedes the evidence is lacking with respect to two of the victims, and we find the concession justified since those womenclearly knew appellant’s actions were sexually motivated. We also agree with the Attorney General that, as to those particular victims, the appropriate remedyis to reduce appellant’s convictionsto the lesser included offense of misdemeanor sexual battery, which necessitates a remand for resentencing. In all other respects, we affirm the judgment. FACTS Appellant worked at the Queen Beauty Salon in Garden Grove. One day in December 2009, he went to a drug store near the salon and struck up a conversation with 17-year-old Dianna N., who was working there as a cashier. Appellant told Dianna he would give her a free facial if she cameby his salon that night. He said he would keep the salon open late for her, and students from a nearby beauty college would be there to observe his work. He also told Diannathat if she brought along a friend, he would give her a free facial, too. When Dianna got off work that day, she went homeandtold her 18-year- old sister Christine about her conversation with appellant. After talking it over with their mother, they decided to take appellant up on his offer. When they arrived at appellant’s salon that evening, appellant greeted them in the waiting area. He then took them into a back room, while their mother stayed in the waiting area and watched a movie. No one else wasat the salon that night. Appellant gave Dianna and Christine each a robe andleft them alone to change. They both tookofftheir tops and brasbutleft their pants on undertheir robes. Whenappellant returned, he had them lay down on separate massage tables that were in the room. Hethen put a cloth over their eyes, washed their faces and applied a facial cream that cakes up and hardensasit dries. After leaving the room briefly for a second time, appellant returned and told Dianna and Christine he was going to give them a “European massage.” Appellant didn’t explain what that meant, and the sisters didn’t know either. Appellant started out by massaging Dianna’s arms. Then he openedthe top of her robe and started massaging the outer part of her breasts. After that, he told Dianna he was going to unbutton her pants so he could massage her thighs. Dianna didn’t object. Trusting appellant, she did not think he was going to take the massage any further than that. But he did. After unbuttoning Diana’s pants and lowering them several inches, appellant massagedher thighs briefly. Then he workedhis way upto hergroin, slipped his hand underneath her underwear andstarted rubbing her vaginal area. Atthat point, Dianna got scared andstarted to question appellant’s motives. However, shestill didn’t say anything because she didn’t know ifthat sort of intimate touching waspart of what a European massageentailed. Appellant rubbed her vaginal area for a minute or twolonger, and then he turned his attention to Christine. Like Dianna, Christine wasn’t sure what a European massage entailed. As she lay there silently, appellant opened her robe and began massaging her arms, stomach and breasts. Before long, he was down by Christine’s waistline, trying to unbutton her pants. Christine put her hand on the button, but appellant told her, “This is a European massage. I dothis all the time for other girls. You know,thisis just part ofit all... don’t worry.” With that, Christine let appellant proceed. He unbuttoned her pants and lowered them to her mid-thigh. Then he folded back her underwear and began massaging her thighs and around her vaginal area. He told her he would be gladto give her a bikini wax if she wanted to come back anothertime, but Christine was too nervousto say anything at that point. However, when appellanttried to put his finger in her vagina, she pushedhis hand awayand pulled up her underwear because she knew “that wasn’t right.” While she expected a European massageto be fairly exotic, perhaps involving some intimate touching, she knew digital penetration wasn’t a “normal” part of any massage. In light of Christine’s resistance, appellant went back to massaging her arms, stomach and breasts. Then, after a few more minutes, he left her and Dianna alone to get dressed. While they were in the room,they talked briefly about what had happened. However, they didn’t tell their mother or go to the police until several months later, in August 2010. In March ofthat year, appellant approached 37-year-old Trang T.inside a Target store and told her he owned a beauty salon. Hesaid he needed someone to demonstrate a facial and massage for some students that evening, and he would pay her $40 to be his model. Trang agreed to meet appellant at his salon later that night. Whenshearrived there, there was a person getting a haircut, but no one else was around. Appellant led her into a back room and gavehera robe to changeinto. Then he left the room and returned a few minutes later. He had Trang lie down ona massage table and put a cloth over her eyes. Whenshe asked aboutthe students, appellant said they hadn’t arrived yet, and he was goingto start without them. Trang could hear talking out in the lobby for a little while longer, but then she heard the front door close and the room fell silent, so she assumed she and appellant were alone. Appellant didn’t spend much time on Trang’s face. After rubbinga little lotion on her checks, he oiled up his hands and began messaging her arms,legs andfeet. Although Trang told appellant she didn’t like him touching her body, he opened up the front of her robe, exposing her breasts. Trang put her handsoverherbreasts and asked appellant what he was doing. Hetold her it was standard procedureand to just relax, but Trang felt scared. She didn’t think any students would be showing up, and she didn’t know precisely whatto do. Despite her obvious discomfort, appellant poured oil on her chest and started rubbing her breasts. He talked about howall his clients loved this and actedlike it was perfectly normal. Trang wasn’t buying it. When appellanttried to slip his hands beneath her underwear, she told him to stop, and he did. But then he turned her over and started massaging her back and butt. Trang didn’t say anything because she didn’t want to anger appellant. As he was rubbing her backside, he reached betweenher legs and touched herclitoris. He also penetrated her vagina with his finger. Hoping to extricate herself from the situation, Trang told appellant she had to go because she waslate for a class. However, rather than letting her leave, he began wiping her down with a towel. Appellant asked Trang to spread her legs so he could wipe her vaginal area, and even though shesaid no, “he just wiped it and moved on.” As he was wiping her backside, he put his fingers between her legs and touched the inside of her vagina. When Trang told him she didn’t like that, he said no one had ever complained about him doing that to them before. He then reached downanddigitally penetrated her vagina again. At that point, Trang sat up, grabbed her clothes and told appellant she wasleaving. After getting dressed, she ran out of the salon and wentto the police. Having never experienced anything like that during any of the massages she had receivedin the past, she felt appellant’s conduct wasutterly wrong. The police interviewed appellant about the incident, but he denied any wrongdoing. Asked about his work practices, he claimed he only gavehisclients facials, not body massages. Healso told the police he had surveillance camerasset up at his salon. However, whenthe police asked to see the tapes, he told them the cameras had not been working for sometime. Four monthsafter his police interview, in July 2010, appellant talked 24- year-old Odette M. into comingto his salon at nine o’clock one evening. Having promised Odette a free facial, appellant took her to a back room ofhis salon and had her change into arobe. After putting some cream on herface, he began rubbing oil on her arms and legs. Then helifted up her robe andstarted rubbing oil on her stomach. Odette, who was wearing only underwear underneath her robe, balked immediately. Appellant hadn’t said anything about a massage, and shetold him notto gothere. Appellant told her to relax, and slipping his hands underneath her underwear, began rubbing her vaginal area. This made Odette shudder, but when she objected to appellant, he assured her he didthis to all his clients and continued with the rubbing. It took several more demands by Odette before he finally relented and put her robe back in place. But then he started massaging her shoulders and lowered her robe in the front. Odette tried to cover herself back up, but appellant grabbed her breasts and started squeezing them. Again, Odette protested and again appellant was slow to respond, although he eventually relented and put her robe back in place. After that, appellant started toweling the oil off Odette’s body. She said she didn’t want him touching her anymore, but he wiped the towelall over her body, including her vaginal area and breasts. He thentold her to leave the cream on her face for 10 more minutes andleft the room. During that time, Odette stayed put out of fear. Whenappellant returned, he wiped her face clean. He also asked for her phone number and said he was goingto call her the next day about a possible modeling gig. Then he departed again, and Odette got dressed. Upon leaving the salon, she angrily confronted appellant in the parking lot. She went to the police about a week later and hasalso filed a civil suit against appellant. Asto each ofthe four victims, appellant was charged with two counts of sexual battery by fraud for touching their breasts and vaginal area. He was also charged with one count of sexual penetration with a foreign object for digitally penetrating Trang. The jury convicted appellant as charged, and the trial court sentenced him to 12 years in prison. DISCUSSION Appellant arguesthere is insufficient evidence to support his convictions for sexual battery by fraud. In his mind, there is just no way anyofthe alleged victims could have reasonably believed his sexual misconductwasrelated to the services he promised them. Asto twoofthe victims — Trang and Odette — the Attorney General agrees, as do we. However, we find ample evidence to support appellant’s convictions as to Dianna and Christine. We also believe that, rather than reversing and dismissing the challenged convictions as to Trang and Odette, as appellant requests, the appropriate remedyis to reduce those convictionsto the lesser included offense of misdemeanor sexual battery. Asits name implies, the crime of sexual battery by fraud is a specific type of sex crime. The crime occurs when a person “touches an intimate part of another person for the purpose of sexual arousal, sexual gratification, or sexual abuse, and the victim is at the time unconscious ofthe nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose[.]” (Pen. Code, § 243.4, subd. (c).) The crime is designed to deter fraud in the inducement, where the victim acquiesces to a sexual act underthe guise it is part of a professional service. (People v. Pham (2009) 180 Cal.App.4th 919, 926 (Pham).) Althoughthe statute uses the term “unconscious,” the victim need not be “totally and physically unconscious during the acts in question.” (/d. at p. 928.) Rather, the evidence need only show the victim wastricked “into submitting to the touching on the pretext it served a professional purpose.” (Jbid.) In Pham,the defendant wasa chiropractor whotreated his victims for various injuries. Some ofthe treatment he provided waslegitimate. But during a few of the sessions, he massagedthe victims’ breasts and touchedtheir vaginal area underthe guise of treating them. (Pham, supra, 180 Cal.App.4th at pp. 922-924.) Although the victims were concerned about some of the touching when it was taking place, we held there was sufficient evidence to support a finding they were unconsciousofits sexual nature due to the defendant’s representationsthat it served a professional purpose. In so holding, we noted, “‘There is an inherent trust and confidence whicha patient seeking medical care places in the [professonial] and upon whicha patientrelies in allowing the [professional] access to the most intimate parts of the body.’ [Citation.]” (/d. at p. 926.) Appellant argues that because he wasonly a beautician, none ofhis alleged victims had “any reason to havethe sort of professional trust in [him] that one would have in a medical professional as in Pham.” We recognize certain professions are more trusted than others. However, to be guilty of sexual battery by fraud, the perpetratoris not required to have a professional occupation, nor musthe be certified in his field or even receive remuneration for his services. (People v. Bautista (2008) 163 Cal.App.4th 762, 773-778.) The crimeis not limited to the medical context but instead “encompasses actions taken in the course of one’s vocation or based on one’s specialized knowledge or training in a given field.” (d. at p. 775.) Indeed, “[t]he precise nature of the perpetrator’s employmentis less important . . . than the appearance of authority and of a legitimate purpose that allows the perpetrator to [sexually exploit] the victim without the victim’s understanding of the true nature of the act.” (/bid.) In this case, appellant represented to all of his victims that his services were for a professional purpose, namely a facial and/or massage, usually as part of an educational endeavor. Wheneverthey balked at his actions, he reassured them his conduct, including the intimate touching, was a standard practice that was universally enjoyed byall of his clients. Those representations created the impression his lewd conduct waspart andparcel of the services he was providing. Even though he wasnot a medical professional, the jury could reasonably conclude he had a purported “professional purpose”for his actions. This is so despite the fact no students ever showed up to watch appellant work. Student spectators are not part of a standard facial, and notwithstandingtheir absencein this case, there wasstill ample evidence from which the victims could have reasonably believed appellant’s actions were intended to serve a professional purpose. After all, he told them he worked at a beauty salon, he had them meethim at the salon andhestarted out all of their sessions by applying lotion to their faces. When challenged about the absence of students, he insisted they were on their way. Because the sessions had the trappings of a professional beauty service, and because appellant acted like and expressly represented his actions were part of such service, the professional purpose requirement was adequately proven in this case. (See People v. Bautista, supra, 163 Cal.App.4th at pp. 778-781 [14-year-old victim could reasonably believe lay pastor’s actions in touching her vagina served a professional purpose since he wasthe leader of her church and told her he was only checking to see if she wasstill a virgin].) It is also clear from the record that Dianna and Christine relied on appellant’s representations. Working on the assumption the only inducement he made was the promise ofa facial, appellant argues none of his victims could have actually believed his lewd conduct wasrelated to his performance ofthat lone service. But appellant didn’t just promise Dianna and Christine a facial. After he slathered their faces with various lotions and creams, he announced he was goingto give them a “European massage” as well. That gave him an excuseto transition his attention from their faces to other parts of their bodies. Unsure of what a European message entailed, Dianna and Christine trusted appellant whenhetold them it involved touching their breasts and thighs. And although they both became concerned whenappellant started rubbing their vaginalareas, they still didn’t say anything. Appellantasserts this is because they were frightened and embarrassed, not because they believed his acts were somehowrelated to his purported services. But Dianna and Christine testified they didn’t know what was going on when appellant was rubbing aroundtheir vaginas. In their teens, unfamiliar with European massage practices, and together in the same room, they simply weren’t sure whether appellant was giving them a proper massage or touching them with lewd intent. Only when appellant attemptedto insert his finger into Christine’s vagina did she fully realize he wasout ofline. Even so, neither she nor Dianna wentto the police until several monthsafter the incident occurred. Aswe explained in Pham,a victim’s uncertainty as to whether the services in question were legitimate does not compelreversal in a case involving fraudulent inducement. In fact, we upheld the defendant’s convictions in Pham despite evidence the victims were uncomfortable with the defendant’s touching and uncertain of his intentions at the time he carried them out. (Pham, supra, 180 Cal.App.4th at p. 930.) For the reasons explained above, it was reasonable for the jury to conclude Dianna and Christine were lured into submitting to appellant’s lewd conduct on the pretext it served a professional purpose. Although they had some concerns whenappellant was touching their breasts and vaginalareas, the totality of the circumstances supports the jury’s finding in this regard.' Trang and Odette are a different story, as the Attorney General rightly concedes. Unlike Dianna and Christine, they were alone with appellant, and the moment ' In arguing to the contrary, appellant draws ourattention to People v. Morales (2013) 212 Cal.App.4th 583, claiming it has “great relevance” to his appeal. However, that case involved the rape of an unconscious person and turned on the marital status of the victim. Wefail to see, and appellant has not explained, how that case has any bearing on the issues before us. 10 he movedhis attention away from their faces and started touching otherparts of their bodies, they made it clear to him they were uncomfortable and wanted him to stop. Even though appellant tried to convince them his actions served a professional purpose, they did not believe him and repeatedly objected to his lewd conduct. In fact, the record showsthe only reason they put up with appellant’s actions for as long asthey did is because they did not want to anger him and makethings worse for themselves. Under these circumstances, we agree with the parties that there is insufficient evidence to support the jury’s findings Trang and Odette were unconsciousofthe sexual nature of appellant’s actions. Thus, appellant’s convictions for committing sexual battery by fraud against them in counts one, two, four and five must be reversed. The only remaining issue is whether those counts should be dismissed altogether or simply be reduced to reflect convictions for the lesser offense of misdemeanorsexual battery. While we havethe authority to reduce a conviction to a lesser offense where the evidence supports the lesser but not the charged offense, we can only do so whenthe lesser offense is necessarily included in the charged offense. (Pen. Code, § 1181, subd. 6; People v. Martinez (1999) 20 Cal.4th 225, 241; People v. Stuedemann (2007) 156 Cal.App.4th 1, 9, fn. 6.) “‘To constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’” (People v. Steele (2000) 83 Cal.App.4th 212, 218, italics omitted.) The crime of misdemeanor sexual battery occurs when a person “touches an intimate part of another person,if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse[.]” (Pen. Code, § 243.4, subd. (e)(1).) In comparing that offense with the crime of sexual battery by fraud,it is clear both offenses “have two identical elements: (1) the defendant touches an intimate part of the victim and (2) the defendantacts for the specific purpose 1] of sexual arousal or gratification. The difference between the two crimesis that [misdemeanor] sexual battery requires a touching ‘against the will’ of the victim, whereas sexual battery by fraudulent representation requires the victim to be ‘unconscious’ of the nature of the touching because the defendant fraudulently represents that the touching serves a professional purpose.” (People v. Babaali (2009) 171 Cal.App.4th 982, 995 (Babaali).) Thereis a split of authority over whether“this difference means that [misdemeanor] sexualbattery is not a lesser included offense of sexual battery by fraudulent representation.” (/bid.) In Babaali, the court analyzedthis issue by looking at CALCRIM No.938, the pattern instruction on misdemeanorsexualbattery, which defines “‘against a person’s ace 399will’” as meaning the ““‘person does not consentto the act.’” (Babaali, supra, 171 Cal.App.4th at p. 996.) The majority contrasted this lack-of-consent requirement with the situation presented in cases of sexual battery by fraud, where “the defendant gains the victim’s acquiescenceto the intimate touching by fraudulently representing it has a professional purpose.” (/d. at p. 997.) The majority simply did not believe that “making a fraudulent representation that results in the victim’s submitting to a specific intimate touching” was the sameas acting without the person’s consent. (/d. at p. 998.) Therefore, it ruled misdemeanor sexual battery was not a lesser and necessarily included offense of sexual battery by fraud. (/bid.) However, as the dissenting Justice in Babaali correctly pointed out, the definition of “against a person’s will” in CALCRIM No.938 actually encompassesthe unconsciousness element of sexual battery by fraud. Indeed, that instruction provides, “In order to consent, a person mustact freely and voluntarily and know the nature ofthe act.” (Babaali, supra, 171 Cal.App.4th at p. 1001, quoting CALCRIM No. 938 (dis. opn. of Manella, J.).) Based on this definition, the dissent reasonedthat “[i]f a victim does not know the nature of the act, she cannot consent, and under such circumstances, an 12 intimate touching for the purpose ofsexualgratification is necessarily at least a sexual battery.” (/d. at p. 1002.) Weagree with this reasoning, which wasalso adopted in People v. Smith (2010) 191 Cal.App.4th 199. As the Smith court noted, “a victim whois unconsciousthat she is being subjected to a sexual touching . . . because ‘the perpetrator fraudulently represented that the touching served a professional purpose,’ has not consentedto that sexual touching, and that touching is against the will of the victim just as muchasifthe victim were incapable of consenting orif the perpetrator were to accomplish the touching by force.” (/d. at p. 209.) In arguing otherwise, appellant reminds us that courts havetraditionally been reluctant to criminalize fraud in the inducement becausethe victim of such fraud ostensibly consents to the act in question, albeit under false pretenses. (See Pham, supra, 180 Cal.App.4th at p. 925.) However, that’s precisely why the Legislature created Penal Codesection 243.4, subdivision (c). That provision exemplifies the modern approach of treating fraud in the inducementas a form of coercionthat vitiates the victim’s alleged consent and renders the perpetrator criminally liable for the acts in question. (/d.at pp. 925-926; cf. People v. Giardino (2000) 82 Cal.App.4th 454, 460 [in the context of rape, valid consent does not exist when the victim is unaware of the nature of the act].) Under this approach, a sexual act perpetrated by fraud is always deemedto be against the victim’s will, and therefore a misdemeanorsexual battery will always occur when the crime of sexual battery by fraud takes place. That being the case,it follows that misdemeanorsexualbattery is a necessarily included offense of sexual battery by fraud. Becausethe evidence shows appellant committed misdemeanorsexual battery, but not sexual battery by fraud, against Trang and Odette, we may lawfully reduce his convictions to the lesser offense on the counts involving those twovictims. But becausethe trial court structured appellant’s sentence based on those particular counts, the matter must be remanded for resentencing. 13 DISPOSITION The judgment is modified to reduce appellant’s convictions on countsone, two, four and five from sexual battery by fraud (Pen. Code, § 243.4, subd. (c)) to misdemeanorsexual battery (Pen. Code, § 243.4, subd. (e)(1)), and the matteris remanded for resentencing. In all other respects, the judgmentis affirmed. BEDSWORTH,ACTINGP.J. WE CONCUR: FYBEL,J. IKOLA,J. 14 PROOF OF SERVICE BY MAIL Re: Lee Hoang Robinson, Court Of Appeal Case: G048155, Superior Court Case: 11WF0857 I the undersigned, declare that I am employed in the County of Sonoma, California. I am over the age of eighteen years and not a party to the within entitled cause. My business address is 1235 Eleanor Ave., Rohnert Park CA. On July 27, 2014, I served a copy of the attached Petition for Review (CA Supreme Court) on each of the parties in said cause by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in United States mail at Sonoma, California, addressed as follows: Office of the District Attorney Charles Mulles, Esq. P.O. Box 521 401 Civic Center Drive Nuevo, CA 92567 Santa Ana, CA 92701 Lee Hoang Robinson; AN-5241 Hon. James A. Stotler; c/o Clerk of the P.O. Box 9 Court Avenal, CA 93204 811 13th Street Westminster, CA 92683 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 27th day of July, 2014. —ets (0tint7)? Teresa C. Martinez (Name of Declarant) (Signature of__d PROOF OF SERVICE BY ELECTRONIC SERVICE Re: Lee Hoang Robinson, Court Of Appeal Case: G048155, Superior Court Case: 11WFO0857 I the undersigned, am overthe age of eighteen years and not a party to the within entitled cause. Mybusiness address is 1235 Eleanor Ave., Rohnert Park CA. On July 27, 2014 a PDFversion of the Petition for Review (CA Supreme Court) described herein was transmitted to each of the following using the email address indicated or direct upload. The email address from which the intended recipients were notified is Service@GreenPathSoftware.com. Appellate Defenders Inc. - Criminal Court of Appeal, 4th District, Division 3 Lynelle Hee Clerk of the Court San Diego, CA 92101 Santa Ana, CA 92701 eservice-criminal @adi-sandiego.com State of California Supreme Court Office of the Attorney General SD Supreme Court San Diego AG San Francisco, CA 94102-4797 San Diego, CA 92186-5266 ADIEService@doj.ca.gov I declare under penalty of perjury underthe lawsof the State of California that the foregoing is true and correct. Executed on this 27th day of July, 2014 at 15:22 Pacific Time hour. —~ 4 Z ‘}, bay i 4 “e| amen £ Teresa C. Martinez (Nameof Declarant) (Signature of Declarant)