Babaali

*987 Opinion

INTRODUCTION

A jury convicted defendant Hossein Babaali of one count of sexual battery by fraudulent representation (Pen. Code, § 243.4, subd. (c)) 1 and one count of attempted sexual battery by fraudulent representation (§§ 664, 243.4, subd. (c)). Both crimes involved the same victim, M.M. Defendant moved for a new trial on multiple grounds. The trial court concluded that the verdicts were contrary to law. It therefore found defendant not guilty of the two offenses and, over defense objection, modified the verdicts to reflect convictions of what it believed to be the lesser included offenses of sexual battery (§ 243.4, subd. (e)(1)) and attempted sexual battery (§§ 664, 243.4, subd. (e)(1)).

On appeal, defendant contends that the trial court lacked jurisdiction to convict him of sexual battery and attempted sexual battery because those crimes are not lesser included offenses of the charged offenses. We agree and therefore reverse the judgment.

LEGAL BACKGROUND

To put defendant’s contention, the evidence, and the trial court proceedings in proper context, we begin with a discussion of the crimes of sexual battery by fraudulent representation and sexual…

Dissenting.—Applying the same framework as the majority for determining whether misdemeanor sexual battery is a lesser included *1001 offense of sexual battery by false representation, I come to a different result. I conclude both statutes require an intimate touching for sexual gratification without the victim’s consent, and that sexual battery is a lesser included offense to the charge of sexual battery by fraudulent misrepresentation. The jury was instructed on both charges, and defense counsel addressed both. There was substantial evidence the victim did not consent to defendant’s conduct. Accordingly, I would affirm the judgment below.

In the context of a sexual assault, “against the . . . will” of the victim is synonymous with “ ‘without the victim’s consent.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ].) Consequently, CALCRIM No. 938, the pattern instruction for sexual battery (Pen. Code, § 243.4, subd. (e)(1)), defines an act as being “against a person’s will” if the person “does not consent to the act.” The instruction explains: “In order to consent, a person must act freely and voluntarily and know the nature of the act.” (Italics added.)…

WILLHITE, Acting P. J.—

A jury convicted defendant Hossein Babaali of one count of sexual battery by fraudulent representation (Pen. Code, § 243.4, subd. (c)) [1] and one count of attempted sexual battery by fraudulent representation (§§ 664, 243.4, subd. (c)). Both crimes involved the same victim, M.M. Defendant moved for a new trial on multiple grounds. The trial court concluded that the verdicts were contrary to law. It therefore found defendant not guilty of the two offenses and, over defense objection, modified the verdicts to reflect convictions of what it believed to be the lesser included offenses of sexual battery (§ 243.4, subd. (e)(1)) and attempted sexual battery (§§ 664, 243.4, subd. (e)(1)).

(1) On appeal, defendant contends that the trial court lacked jurisdiction to convict him of sexual battery and attempted sexual battery because those crimes are not lesser included offenses of the charged offenses. We agree and therefore reverse the judgment.

To put defendant's contention, the evidence, and the trial court proceedings in proper context, we begin with a discussion of the crimes of sexual battery by fraudulent representation and sexual battery.

(2)…