There was insufficient evidence to support appellant’s convictions for sexual battery by fraud where the victims did not believe that his lewd conduct served a professional purpose. On multiple occasions, the appellant lured women to his beauty salon after hours by promising to give them free facial treatments. The appellant would provide some facial services, but ultimately began massaging each woman in a sexual manner. As to each of the four victims, he was convicted of two counts of sexual battery by fraud (Pen. Code, § 243.4, subd. (c)) for touching their breasts and vaginal area. Appellant challenged the sufficiency of the evidence to support the convictions on appeal. Held: Four of appellant’s convictions were reduced to misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)). The crime of sexual battery by fraud occurs when a person “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[.]” The crime is designed to deter fraud in the inducement, where the victim is tricked into submitting to a sexual act under the guise that it is part of a professional service. Here, there was insufficient evidence that two of the victims were unconscious of the sexual nature of appellant’s actions. They did not believe his explanation that the sexual touching was part of his professional service that he did with all his clients and they made it clear that they wanted him to stop. As for the other two victims, there was sufficient evidence to support the convictions. Appellant lured the two teenage victims into submitting to the lewd conduct on the pretext that it was part of a “European massage.” They were unfamiliar with European massage techniques and trusted appellant when he told them it involved touching their breasts and thighs.

Misdemeanor sexual battery is a lesser included offense of sexual battery by fraud. Sexual battery by fraud cannot be committed without necessarily committing misdemeanor sexual battery. The difference between the crimes is that misdemeanor sexual battery requires a touching “against the will” of the victim whereas sexual battery by fraud requires the victim to be “unconscious” of the nature of the touching due to the defendant’s fraudulent representations. A victim who is unconscious that she is being subjected to a sexual touching because the defendant fraudulently represented that the touching was for a professional purpose, has not consented to the touching and the touching is against the victim’s will. In this situation, the fraud is a form of coercion that vitiates the victim’s alleged consent. The court disagreed with People v. Babaali (2009) 171 Cal.App.4th 982.