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Name: People v. Babaali
Case #: B206165
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/03/2009
Summary

Sexual battery is not a lesser included offense of sexual battery by fraudulent representation. A jury convicted appellant of sexual battery by fraudulent representation (Pen. Code, sec. 243.4, subd. (c)) and attempted sexual battery by fraudulent representation, both of the same victim. The trial court concluded that the verdicts were contrary to law, and found appellant not guilty of the two offenses, but, over defense objection, guilty of what it believed to be the lesser included offense of sexual battery and attempted sexual battery. The appellate court reversed the convictions, finding that the trial court lacked jurisdiction because those crimes were not lesser included offenses of the charged offenses. Although both statutes have identical elements, sexual battery requires a touching against the will of the victim. Sexual battery by false representation requires the victim to be unconscious of the nature of the touching because the perpetrator fraudulently represents that the touching serves a professional purpose. The difference means that sexual battery is not a lesser included offense of sexual battery by fraudulent representation. At best, sexual battery is a lesser related offense, but the trial court lacked the power to modify the verdict to reflect conviction of a lesser related offense.