P v. Robinson (Cal. Supreme Ct.) PC 243.4(e)(1) Isn't a Lesser Included Offense of PC 243.4(c)

Mr. Robinson was accused of luring women into his salon with promises of free facials and modeling opportunities, only to grope their breasts and pudenda.  Robinson was convicted of, among other crimes, violating PC 243.4(c) as to four different women.  Section 243.4(c) criminalizes touching someone else's intimate parts, with a sexual intent, while the victim is unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose.

Robinson appealed.  In the Court of Appeal, the State conceded that there was insufficient evidence that two of the four women were "unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose" because they never actually believed Robinson's bogus story that his groping served some professional purpose.  The Court of Appeal accepted the concession, reversed the 243.4(c) convictions as to those two victims, and using PC 1181 sub(6) reduced the 243.4(c) convictions as to these two victims to convictions under 243.4(e)(1).  Section 243.4(e)(1) criminalizes the touching of someone's intimate parts for a sexual purpose without the victim's consent.  The Court of Appeal found that 243.4(e)(1) was a lesser included offense of 243.4(c).

The California Supreme Court granted review and reverses.

The ultimate issue is whether the Court of Appeal erred in modifying the jury's verdict under PC 1181(6).  Section 1181(6) allows a court to modify a jury verdict that is unsupported by evidence to find a defendant guilty of a lesser included offense.  Thus the Court frames the threshold issue as whether 243.4(e)(1) is a lesser included offense of 243.4(c).  

This threshold issue requires determining whether ""unconscious of the nature of the act because the perpetrator fraudulently represented the touching served a professional purpose" is tantamount to "lack of consent"?  The opinion answers the question, "yes".  The opinion finds that the legislature created 243.4(c) with the purpose of equating fraud-in-the-inducement with lack of consent.  At common law fraud in the inducement (using misrepresentation to gain someone's consent) resulted in valid consent.  This meant that if a person used fraud to obtain someone's consent, they could not be found guilty of crimes such as rape and sexual battery which have an element of "lack of consent".  The Court finds the legislature intended to close this common law loophole with a statutory declaration that "lack of consent" includes fraud in the inducement.    

After finding 243.4(c) contains an element of "lack of consent", the Court then tackles the question of whether 243.4(e)(1) is a lesser included offense of 243.4(c).  The answer is "no", but not because 243.(e)(1) does not contain all the elements of 243.4(c), it does.  Rather the Court holds that when "the same evidence is required to support all the elements of both offenses, there is no lesser included offense[]".  In other words, if the evidence fails to satisfy all the elements of 243.4(c), the evidence is insufficient to satisfy the elements of 243.4(e)(1).  

It helps to remember that the "lack of consent" element in 243.4(c) is actually a narrow subset of all types of "lack of consent".  When the State charges 243.4(c) the jury is asked to decide whether there was a lack of consent due to fraud, not whether there was a lack of consent.  As the jury was not asked the broader question, they made no factual findings as to that broad question.  

Modifying a jury verdict under PC 1181(6) involves only applying established law to the facts found by the jury.  Since the jury made no factual findings as to a lack of consent under any theory apart from fraud, there are no jury-found facts upon which the Court of Appeals could hang a 243.4(e)(1).  The result is that those counts are reversed.  

IMEO, it was unnecessary for the court to decide whether 243.4(e)(1) is a lesser included offense of 243.4(c).  Because the jury verdict did not include factual findings sufficient to support a 243.4(e)(1), whether or not it was a lesser is moot.  Either way the Court of Appeal erred.