APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. SA060934).
The opinion of the court was delivered by: Willhite, Acting P. J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant Hossein Babaali of one count of sexual battery by fraudulent representation (§ 243.4, subd. (c))*fn1 and one count of attempted sexual battery by fraudulent representation (§ 664/243.4, subd. (c)). Both crimes involved the same victim, M.M. Defendant moved for a new trial on multiple grounds. The trial court concluded that the verdicts were contrary to law. It therefore found defendant not guilty of the two offenses and, over defense objection, modified the verdicts to reflect convictions of what it believed to be the lesser included offenses of sexual battery (§ 243.4, subd. (e)(1)) and attempted sexual battery (§ 664/243.4, subd. (e)(1)).
On appeal, defendant contends that the trial court lacked jurisdiction to convict him of sexual battery and attempted sexual battery because those crimes are not lesser included offenses of the charged offenses. We agree and therefore reverse the judgment.
To put defendant's contention, the evidence, and the trial court proceedings in proper context, we begin with a discussion of the crimes of sexual battery by fraudulent representation and sexual battery.
The crime of sexual battery by fraudulent representation (§ 243.4, subd. (c)) was added to the Penal Code in 2002. The distinction between fraud in the factum and fraud in the inducement is key to understanding the legislative impetus for enacting the statute. In fraud in the factum, the defendant fraudulently induces the victim to consent to "act X" but then the defendant engages in "act Y." (See, e.g., People v. Ogunmola (1987) 193 Cal.App.3d 274, 277-281 [the defendant obtains the victim's consent to conduct a pelvic examination digitally or with a surgical instrument but then inserts his penis in the victim's vagina] and People v. Minkowski (1962) 204 Cal.App.2d 832, 837-839, 842-843 [the defendant obtains consent to insert a medical instrument into the victim's vagina but also inserts his penis].) By contrast, in fraud in the inducement, the defendant uses misrepresentations to induce the victim to consent to "act X" and then commits "act X." (See, e.g., Boro v. Superior Court (1985) 163 Cal.App.3d 1224 [the defendant induces the victim to consent to sexual intercourse by falsely telling her the act was necessary to treat a potentially fatal disease].)
It has always been the rule that fraud in the factum vitiates consent. Stated another way, "where there is fraud in the fact, there was no consent to begin with. Consent that act X may be done is not consent that act Y be done, when act Y is the act complained of." (People v. Harris (1979) 93 Cal.App.3d 103, 114.) However, the general common law rule is that fraud in the inducement does not vitiate consent because the victim agreed knowing the true nature of the act to be performed. (People v. Stuedemann (2007) 156 Cal.App.4th 1, 7-8; see also People v. Boro, supra, 163 Cal.App.3d at p. 1228 ["'consent [to sexual intercourse] induced by fraud is effective as any other consent, so far as the direct and immediate consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)'"].)
Consequently, until 2002, California law (with one limited exception) did not criminalize a sexual touching when the defendant engaged in fraud in the inducement to obtain the victim's consent. But that year, the Legislature created the crime of sexual battery by fraudulent representation. Section 243.4, subdivision (c) provides, in relevant part: "Any person who 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 of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose, is guilty of sexual battery." (Italics added.) The creation of this crime was part "of a comprehensive amendment that added the 'professional purpose' circumstance to five sex crimes statutes.*fn2 [Citations.] Prior to the amendment, the law provided that a victim could be unconscious of the nature of the act 'due to the perpetrator's fraud in fact.' [Citation.] . . . The 2002 amendment expanded the meaning of unconsciousness to include a narrow set of circumstances involving fraudulent inducement: those in which the victim was unaware of the nature of the act due to the perpetrator's fraudulent representation that the sexual [act] served a professional purpose." (People v. Bautista (2008) 163 Cal.App.4th 762, 773, italics added.) For this new statutory provision to apply, the defendant must fraudulently represent that the specific intimate touching he actually commits serves a professional purpose. Thus, in this one narrow set of circumstances, the Legislature abrogated the common law rule that fraud in the inducement does not vitiate consent by providing that the defendant's fraudulent representation renders the victim unconscious of the true nature of the defendant's act. In all other situations, consent induced by fraud is still considered valid.
In contrast to sexual battery by fraudulent representation, sexual battery does not involve trick or artifice. Instead, it simply requires an intimate touching committed against the victim's will. Section 243.4, subdivision (e) provides, in relevant part: "(1) Any person who 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, is guilty of misdemeanor sexual battery." (Italics added.)
With this legal background in mind, we now turn to the evidence and relevant trial court proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case
1. The Victim's Testimony
Defendant is a medical doctor. In March 2006, he hired the victim, M.M., for a receptionist position in his office. On the second day of her employment, he asked M.M. to come into the exam room so he could show her how to perform various medical-related functions. Once the two of them were in the room, he showed her how to draw blood from a patient. Then, he said he was going to show her how to operate the electrocardiogram (EKG) machine. He told her to take off her top and put on a medical gown. She did. He told her to remove her bra, to adjust the gown so that the opening was in the front, and to lie down on the examination table. M.M. complied with all of his requests.
M.M. told defendant that she was experiencing pain around her breast and stomach. M.M. did not expect defendant to conduct an examination or touch her in those areas; she simply hoped that, based upon his medical training, he would tell her why she was experiencing the pain.
Defendant placed the EKG wires around the bottom of her breasts and on her ankle. M.M. closed her gown opening so as not expose her breasts. Defendant opened the gown, exposing her left breast. Defendant attempted to operate the EKG machine but did not appear to know what he was doing. He then touched M.M.'s breasts, saying he was checking for breast cancer. After that, he began to pinch her nipples, stating he was checking for secretions. During these actions, defendant had a sexual look on his face and made a sexually-related sound.
Defendant touched M.M.'s stomach and asked if she felt any pain. She said she did. Defendant unbuttoned and unzipped her pants and pulled them down.
M.M. tried to pull them back up but defendant told her to relax. He placed his hand underneath M.M.'s underwear, pressed the area around her vagina, touched her pubic hair, and asked her if she felt pain. M.M. told him to stop. She tried several times to sit up but he pushed her back on the table. M.M. buttoned her pants and said she needed to get back to work. Defendant placed his hand on her face and tried to kiss her but she turned her head.
Defendant left the room. M.M. put on her clothes. Defendant reentered and placed a stethoscope on her chest. M.M. could feel defendant had an erection.
M.M. quickly moved away from defendant. Ultimately, she left the exam room and returned to her office. M.M. testified that defendant never told her that he was going to give her a breast exam or check inside of ...