Court of Appeal erred by reducing sexual battery by misrepresentation of professional purpose offenses that were not supported by sufficient evidence to misdemeanor sexual battery because misdemeanor sexual battery is not a lesser included offense. Defendant was convicted of multiple counts of sexual battery by misrepresentation of professional purpose (Pen. Code, § 243.4, subd. (c)). On appeal, the court found insufficient evidence as to two of the four victims, and reduced two of the offenses to misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)). Defendant’s petition for review was granted. Held: Reversed. Where a verdict is not supported by the evidence, a court may reduce the conviction to a lesser included offense if the record establishes guilt as to the lesser offense (Pen. Code, § 1181, subd. 6). To determine whether one crime is necessarily included in another, a court may look either to the accusatory pleading or to the statutory elements of the offenses. If a crime cannot be committed without necessarily committing the lesser offense, then the lesser crime is included in the greater offense. However, if the same evidence is required to support all of the elements of both offenses, neither offense is a lesser of the other. Sexual battery by misrepresentation of professional purpose results in the victim being unaware of the nature of the act, which negates legal consent. This offense shares three elements with misdemeanor sexual battery: (1) the defendant must touch an intimate part of the victim (2) with a sexual purpose and (3) the victim did not consent to the touching. On the surface, this makes it appear that misdemeanor sexual battery would be a lesser included offense. But, as illustrated by this case, the same evidence is needed to establish all elements of both offenses when the prosecution’s theory is that defendant’s misrepresentations negated any consent. As a result, misdemeanor sexual battery is not a lesser included offense of sexual battery by misrepresentation of professional purpose and the Court of Appeal was not authorized to reduce the sexual battery by misrepresentation of professional purpose offenses to misdemeanor sexual battery.

Where an element of an uncharged lesser offense is broader than an element of a greater offense, the defendant must be given notice of the prosecution’s intent to rely on the broader element of the lesser offense. The lack of consent element of misdemeanor sexual battery is a general one, whereas sexual battery by misrepresentation of professional purpose involves a specific circumstance in which consent is legally vitiated. Here, misdemeanor sexual battery was not charged and the jury was not asked to consider lack of consent except for the professional misrepresentation. Under these circumstances, reducing the sexual battery by misrepresentation of professional purpose offense would deprive the defendant of notice that he needed to defend against the broader misdemeanor offense.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S220247.PDF