THE PEOPLE, Plaintiff and Respondent, v. LEE HOANG ROBINSON, Defendant and Appellant.
No. S220247
Supreme Court of California
May 23, 2016
200-213
Leonard J. Klaif, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Deputy State Solicitor General, Melissa Mandel, Laura A. Glennon, Lise S. Jacobson and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
CORRIGAN, J.-It is a commonly stated rule that if the statutory elements of a crime include the elements of another offense, so that the first offense cannot be committed without also committing the second, the second is a “lesser offense” that is “necessarily included” in the first. (E.g., People v. Bailey (2012) 54 Cal.4th 740, 748 [143 Cal.Rptr.3d 647, 279 P.3d 1120] (Bailey).) As this case demonstrates, however, when the same evidence is required to support all the elements of both offenses, there is no lesser included offense.
The issue here is whether misdemeanor sexual battery is a lesser included offense of sexual battery by misrepresentation of professional purpose.
In this case, defendant was convicted of multiple counts of sexual battery by misrepresentation of professional purpose. In the Court of Appeal, the Attorney General conceded there was insufficient evidence that two of the four victims were deceived by defendant‘s misrepresentations. The court held that misdemeanor sexual battery is a lesser included offense of sexual battery by misrepresentation of professional purpose, so that convictions of the greater offense could be reduced to the lesser.
The court erred. It is true that every defendant who commits sexual battery by misrepresentation of professional purpose also commits misdemeanor sexual battery: The victim has been touched for a sexual purpose without consenting. However, the victim‘s lack of consent arises from a particular circumstance created by the defendant‘s misrepresentation. If the evidence does not support that circumstance, the misdemeanor offense cannot stand on the same factual foundation. Here, the evidence failed to show that two of the victims’ consent was negated by misrepresentation. That evidence was equally insufficient to establish lack of consent for purposes of misdemeanor sexual battery. Lack of consent may be shown in other ways to prove
I. BACKGROUND
The facts are undisputed. Defendant Lee Hoang Robinson worked in a beauty salon. One day in December 2009 he approached 17-year-old Dianna N., who worked nearby, and offered her a free facial if she would come to the salon after hours. He told her she could bring a friend as well. Dianna and her 18-year-old sister, Christine, decided to accept his offer. Their mother drove them to the salon and waited while they went with defendant.
Defendant took them to a back room to change. They removed their tops and bras and donned robes. Defendant then had them lie on tables, where he covered their eyes and applied a facial cream that hardened into a mask. He said he was going to give them a “European massage.” He began by rubbing their upper bodies, but eventually unbuttoned their pants and rubbed their vaginal areas. Dianna and Christine were uncomfortable but voiced no objection. However, when defendant tried to insert his finger in Christine‘s vagina, she pushed his hand away and pulled up her underwear. Defendant went back to massaging her arms, stomach, and breasts. After a few more minutes, he left the sisters alone to get dressed. They spoke briefly with each other about what had happened, but did not tell their mother until several months later.
In the meantime, defendant enticed two older victims. In March 2010, he approached 37-year-old Trang T. in a store, telling her he owned a salon. He offered her $40 to be his “model” while he demonstrated facial and massage techniques for students later in the evening. Trang agreed, came to the salon, and changed into a gown. No students were present, but defendant said he was going to begin in their absence. He rubbed lotion on her face, then oiled his hands and began massaging her arms, legs, and feet. Trang said she did not like him touching her body, but defendant told her to relax and began rubbing oil on her breasts. Trang did not believe him when he said all his clients loved this treatment. When he tried to slip his hands beneath her underwear, she told him to stop. He did, but then turned her over and massaged her buttocks. Trang said nothing because she did not want to anger defendant. Eventually, he inserted his finger into her vagina. Trang said she was late for a class and had to leave. Defendant began wiping the oil from her body, and in the process digitally penetrated her again. Trang protested,
Four months later, he promised 24-year-old Odette M. a free facial if she came to the salon in the evening. He took her to a back room, had her change into a robe, and put cream on her face. He then began rubbing oil on her body, though he had said nothing about a massage. Odette objected immediately, but defendant told her to relax and slipped his hands beneath her underwear, rubbing her vaginal area. When she objected again, he assured her he provided this service to all his clients. After repeated demands, defendant finally put Odette‘s robe back in place, but then began massaging her shoulders and squeezing her breasts. She protested again, and finally defendant stopped. However, he wiped a towel over her body, including her vaginal area and breasts. He told her to leave the cream on her face for 10 minutes. She did so, out of fear. Defendant returned, wiped her face, and asked for her phone number. Odette dressed and left, angrily confronting defendant when she encountered him in the parking lot. About a week later, she reported the incident to the police.
Defendant was charged with eight counts of sexual battery by misrepresentation of professional purpose, two counts for each victim. He was also charged with digitally penetrating Trang. A jury convicted him as charged. The Court of Appeal upheld the battery convictions related to the two younger victims. However, it accepted the Attorney General‘s concession that the evidence was insufficient with respect to Trang and Odette, because they never believed defendant‘s touchings served a professional purpose. The court then weighed whether to dismiss the counts involving those victims, or reduce the convictions to misdemeanor sexual battery as a lesser included offense. Disagreeing with People v. Babaali (2009) 171 Cal.App.4th 982 [90 Cal.Rptr.3d 278] (Babaali), the court held that misdemeanor sexual battery is necessarily included in the crime of sexual battery by misrepresentation of professional purpose. It affirmed the judgment after modifying it to reflect the lesser offense on the four counts involving Trang and Odette.
II. DISCUSSION
Under
To ascertain whether one crime is necessarily included in another, courts may look either to the accusatory pleading or the statutory elements of the crimes. When, as here, the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense. (People v. Anderson, supra, 15 Cal.3d at p. 809; see People v. Shockley (2013) 58 Cal.4th 400, 404 [165 Cal.Rptr.3d 497, 314 P.3d 798] (Shockley).) “The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. [Citation.] In other words, ” ‘[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ ” ” (Bailey, supra, 54 Cal.4th at p. 748.)3 Nevertheless, if the same evidence is required to support all elements of both offenses, there is no lesser included offense. (Shockley, at pp. 405-406.) Each is its own offense, based on different statutes that apply to the same conduct; neither can be said to be a lesser of the other.
A. The Lack of Consent Requirement
Before considering the application of the elements test in this case, we resolve the parties’ dispute over whether the crime of sexual battery by misrepresentation of professional purpose requires lack of consent. The answer to this question has ramifications for a number of sex offenses.
Case law and legislative history support the Attorney General‘s position. In the sexual assault context, it is settled that ” ‘without the victim‘s consent’ ” has the same meaning as ” ‘against the victim‘s will.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 460 [98 Cal.Rptr.2d 315]; see People v. Lee (2011) 51 Cal.4th 620, 634, fn. 10 [122 Cal.Rptr.3d 117, 248 P.3d 651]; People v. Ogunmola (1987) 193 Cal.App.3d 274, 279 [238 Cal.Rptr. 300] (Ogunmola).) Here we must determine whether a touching is without consent when the victim is “unconscious” of its sexual nature under
When it enacted
At common law, fraud in fact occurs when the defendant obtains the victim‘s consent to an act but then engages in a different act. Fraud in the inducement is committed when the defendant uses misrepresentations to gain the victim‘s consent to an act, and then performs that same act. (Babaali, supra, 171 Cal.App.4th at p. 987.) In Ogunmola, a gynecologist who raped his victims during pelvic examinations was guilty under a fraud in fact theory. His victims consented to pelvic examinations, not sexual intercourse,
The Legislature considered these precedents, giving careful attention to the question of consent, when it framed the offense of sexual battery by misrepresentation of professional purpose. It understood that under the common law, perpetrators of sexual offenses by way of fraud in the inducement escaped punishment. Although an earlier Legislature had responded to the Boro case by passing
When the Legislature acted to criminalize that behavior, it had before it a committee report quoting the Boro court‘s comment that “the Legislature well [understands] how to specify certain fraud in the inducement as vitiating consent.” (Boro, supra, 163 Cal.App.3d at p. 1229; see Sen. Com. Rep., supra, at p. I.) The terms of
Thus, the Legislature has refined the consent requirements for sex crimes to include not only the ordinary circumstance where consent is never given, but also more complicated circumstances where it is obtained through deceit. A woman who is groped on a crowded bus is plainly subjected to a sexual touching without her consent. That is the sense in which consent is ordinarily understood. But under
B. Application of the Elements Test
The parties agree that misdemeanor sexual battery and sexual battery by misrepresentation of professional purpose share two elements: The defendant must touch an intimate part of the victim, and do so with a sexual purpose. Given our conclusion that
An analogous situation was presented in Shockley. There the defendant was charged with lewd conduct with a child. (
In Shockley, if lewd conduct were the only ground on which a touching was “offensive” for purposes of battery, then simple battery could be not be a lesser included offense. Here the problem arises in a different context, but the result is the same. The prosecution‘s theory was that defendant‘s misrepresentations negated any consent on the part of Trang and Odette. The theory failed because the women were not deceived. Lack of consent for purposes of misdemeanor sexual battery could not be premised on the jury‘s unsupported findings on the charges of sexual battery by misrepresentation of professional purpose. In order to convict defendant of the misdemeanor offense, the jury would have had to find lack of consent on a basis other than fraud.6 As in Shockley, a finding of a different form of one element was required, and therefore the lesser offense is not included in the greater. (Shockley, supra, 58 Cal.4th at p. 405.)
Bailey is also instructive. There the defendant was convicted of escaping from prison, but the evidence did not show that he ever reached an unauthorized location, as required by the escape statute. We considered whether the conviction could be reduced to attempted escape as a lesser included offense. (Bailey, supra, 54 Cal.4th at p. 747.) We decided it could not, because attempted escape has a specific intent requirement that is not included in the crime of escape. (Id. at p. 749.) Pertinent to our analysis here, we reasoned that when a reviewing court modifies a conviction to reflect a lesser included offense, it is not empowered to make additional factual findings. It may only conform the verdict to the facts as found by the jury. In Bailey, “the case was tried solely as an escape, the trial court did not instruct on attempt to escape, and the jury was never required to make a finding of specific intent to
So too here, the jury was not asked to decide whether Trang and Odette agreed to defendant‘s acts. It was only told to consider whether his misrepresentations rendered them “unconscious of the nature of the act[s].” (
There is a further reason why misdemeanor sexual battery cannot be considered a lesser included offense of sexual battery by misrepresentation of professional purpose. We touched upon the point in Shockley. The consent element of misdemeanor sexual battery is a general one, whereas sexual battery by misrepresentation of professional purpose contemplates a specific circumstance in which consent is vitiated. In Shockley we pointed out the notice problems that can arise if a narrower charged offense is deemed to include a broader lesser offense. Shockley was charged only with lewd conduct, but a battery might have been based on an offensive touching of some other kind. We observed, ” ‘[a] criminal defendant must be given fair notice of the charges against him in order that he may have a reasonable opportunity properly to prepare a defense and avoid unfair surprise at trial.’ (People v. Anderson, supra, 15 Cal.3d at p. 809.) Convincing the jury there was no lewd intent would be a complete defense to a lewd conduct charge. Charging only lewd conduct would not provide the defendant with notice of the need to defend additionally against a battery charge based on an offensive touching not included within the elements of lewd conduct.” (Shockley, supra, 58 Cal.4th at p. 406; see People v. Lohbauer (1981) 29 Cal.3d 364, 368-371 [173 Cal.Rptr. 453, 627 P.2d 183].)
Similarly here, defendant was not given notice to prepare a defense against the charge that he touched his victims without their consent in any way other than by tricking them into thinking they were receiving a professional service. If misdemeanor sexual battery had been charged, he would
III. DISPOSITION
We reverse the judgment of the Court of Appeal, and remand for further proceedings consistent with this opinion.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.