People v. Robinson
Annotate this CaseDefendant was convicted of multiple counts of sexual battery by misrepresentation of professional purpose. At issue is whether misdemeanor sexual battery is a lesser include offense of sexual battery by misrepresentation of professional purpose. The court concluded that the trial court erred by holding 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. 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 the misdemeanor offense, but the jury did not consider alternate grounds. Moreover, a charge of sexual battery under Penal Code section 243.4(c) does not notify the defendant of the need to contest the consent issue on any basis other than the alleged fraudulent representation. Therefore, misdemeanor sexual battery cannot be deemed a lesser included offense of sexual battery by misrepresentation of professional purpose. The court reversed and remanded.
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