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Name: People v. Pham
Case #: G040848
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/28/2009

The totality of defendant’s conduct will determine whether there is a fraudulent misrepresentation to support a conviction for Penal Code section 243.4, subdivision (c). Under Penal Code section 243.4, subdivision (c) (sexual battery by fraudulent representation), there must be sufficient evidence to show that defendant fraudulently represented that the specific intimate touching he committed served a professional purpose, rather than being for sexual purposes. The statute does not require an explicit, verbal representation by defendant. Rather, the totality of his conduct can establish the requisite fraudulent representation. Further, the victim need not be unconscious; as long as the victim is unaware of the sexual nature of the act, the unconsciousness element of the statute is satisfied. Here, appellant used his position as a chiropractor treating the three female patients for injuries to disguise his lewd intentions and commit the sexual battery crime. When they came to his office, their vital signs were checked; they were advised that appellant would be touching them to diagnose and treat their injuries; they signed consent forms advising that the techniques used might be unsettling and anxiety-provoking. During the “treatment,” appellant then improperly massaged the breast and vaginal area of the victim. Under the totality of the circumstances, the jury reasonably could conclude that the patients were unaware of the sexual nature of appellant’s conduct due to his fraudulent misrepresentations, so as to justify the convictions for sexual battery.