Defendant’s conviction for sexual penetration by fraudulent misrepresentation was supported by sufficient evidence where victim protested but allowed a sexual touching to occur based on the representation of professional purpose. During a visit with one of his patients, Icke, a chiropractor, began touching her inappropriately. She called the police and a jury ultimately convicted Icke of sexual penetration by fraudulent misrepresentation of professional purpose (Pen. Code, § 289, subd. (d)(4)), and assault. On appeal, he challenged the sufficiency of the evidence to support the section 289 conviction and the trial court’s refusal to instruct the jury that he was not guilty of the offense if he committed the sexual penetration against the victim’s will. Held: Affirmed. Section 289, subdivision (d)(4) requires proof the defendant misrepresented the professional purpose of an act and the victim was deceived by this misrepresentation and thus unconscious of the sexually-motivated nature of the act. (People v. Pham (2009) 180 Cal.App.4th 919, 925.) But contrary to Icke’s assertions, case law interpreting the relevant provisions has never required an express representation that there is a professional purpose. “[P]hysical circumstances and a course of conduct may indirectly communicate a false professional purpose.” Here, calling the victim back for more treatment and beginning the appointment by giving her an appropriate chiropractic massage was sufficient to convey a professional purpose. Furthermore, there is no requirement that the victim actually consent believing that the sexual acts were part of the professional treatment and the trial court properly refused the defense instruction that misstated the law on this point. (See People v. Robinson (2016) 63 Cal.4th 200). Additionally, confusion or doubt about the purpose of the touching does not preclude a conviction.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A141917.PDF