Lyu

*1295 Opinion

Jae Jeong Lyu was convicted after a court trial of sexual penetration by a foreign object of an unconscious person, oral copulation of an unconscious person, and sexual battery. He appeals, arguing that his convictions of sexual penetration and oral copulation of an unconscious person are not supported by substantial evidence. We agree.

BACKGROUND

An information filed July 8, 2010, charged Lyu with two counts of sexual penetration by a foreign object of an unconscious person, in violation of Penal Code section 289, subdivision (d), 1 two counts of oral copulation of an unconscious person, in violation of section 288a, subdivision (f), two counts of sexual battery by fraud, in violation of section 243.4, subdivision (c), and four counts of sexual battery, in violation of section 243.4, subdivision (e)(1). The information alleged two separate incidents, each against a different victim, on November 8, 2009, against Trish B., 2 and on April 7, 2009, against Shanah R. Lyu pleaded not guilty to all counts.

During Lyu’s jury trial, the court dismissed the two counts of sexual battery by fraud. The court declared a mistrial on October 29, 2010, when the jury was unable…