Trial court prejudicially erred by not instructing the jury on misdemeanor sexual battery as a lesser included offense of sexual battery by restraint. Defendant, a massage therapist, was convicted of sex offenses involving six clients, including two counts of sexual battery while the victim was unlawfully restrained (Pen. Code, § 243.4(a)). On appeal, he argued that the evidence of restraint was at least questionable, and the trial court thus had a duty to instruct on a lesser included offense that lacked the element of restraint—misdemeanor sexual battery (§ 243.4(e)). Held: Reversed in part and remanded. The People acknowledged that misdemeanor sexual battery is a lesser included offense of sexual battery by restraint, and the Court of Appeal agreed. Although the court concluded there was sufficient evidence defendant committed sexual battery while two of his clients (D.E. and C.E.) were restrained (see below), the evidence was close on the issue of restraint and could support a contrary finding. Based on the totality of the evidence, the court concluded a reasonable juror could have found defendant guilty of misdemeanor sexual battery but not of sexual battery while the victim was restrained. As a result, the trial court erred in not instructing the jury on misdemeanor sexual battery as a lesser included offense. The error was not harmless. [Editor’s Note: The Court of Appeal also concluded that the error was not invited based on the record in this case. The People pointed to several statements from defense counsel that they contended served as objections on tactical grounds to the trial court instructing on misdemeanor sexual battery as a lesser included offense, but the court disagreed.]

There was sufficient evidence of restraint to support defendant’s convictions for sexual battery while the victim was unlawfully restrained. Defendant also argued the evidence was insufficient to support his conviction on a number of counts, including those for sexual battery by restraint. Viewing the evidence in the light most favorable to the prosecution, the court concluded there was sufficient evidence of restraint to support the convictions. A person is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another and the restraint is against his or her will. “Once defendant took advantage of the victims’ consent to a therapeutic massage by touching their genitals, he exceeded the scope of their consent and engaged in unlawful conduct.” Although physical restraint is not required, it is sufficient, and there was evidence defendant physically restrained D.E. and touched her vagina while she was restrained. The court also concluded that “a reasonable jury could find that because defendant manipulated C.E.’s body while she was lying naked on a massage table in a room with the door closed and had difficulty moving because of her advanced state of pregnancy, she was restrained . . . .” Additionally, “a reasonable jury could find that defendant’s conduct and actions created a situation where both women froze in fear and felt compelled to remain where they did not voluntarily wish to be, and that he thus restrained them . . . .” (Internal quotations and alterations omitted.)