People v. Robinson

• Decision Date: 23 May 2016
• Docket Number: No. S220247.,S220247.
• Citation: People v. Robinson, 63 Cal.4th 200, 370 P.3d 1043, 202 Cal.Rptr.3d 485 (Cal. 2016)
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lee Hoang ROBINSON, Defendant and Appellant.

63 Cal.4th 200

370 P.3d 1043

202 Cal.Rptr.3d 485

The PEOPLE, Plaintiff and Respondent

v.Lee Hoang ROBINSON, Defendant and Appellant.

No. S220247.

Supreme Court of California

May 23, 2016.

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. Penal Code section 243.4, subdivision (c) prohibits touching an intimate part of another person for a sexual purpose when “the victim is at the time unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose.” That offense can be punished as either a felony or a misdemeanor. Section 243.4, subdivision (e)(1) provides that it is a misdemeanor to touch an intimate part of another person for a sexual purpose “if the touching is against the will of the person touched.”¹ We use the term “misdemeanor sexual battery” to refer to the section 243.4(e)(1) offense.

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 the misdemeanor offense, but the jury did not consider alternate grounds. Moreover, a charge of sexual battery under 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. Accordingly, misdemeanor sexual battery cannot be deemed a lesser included offense of sexual battery by misrepresentation of professional purpose.

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, but defendant repeated the act a third time. Trang grabbed her clothes, left, and reported the incident to the police. When the police questioned him, defendant denied any wrongdoing.

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 section 1181, subdivision 6, a jury verdict not supported by the evidence may be modified if the record establishes the defendant's guilt of a lesser included offense.² The requirement that the lesser offense be included in the greater “is based upon due process considerations: 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 (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603.) The requirement also preserves the jury's role as the finder of fact. The modification permitted by section 1181, subdivision 6 “ merely brings the jury's verdict in line with the evidence presented at trial.” (People v. Navarro (2007) 40 Cal.4th 668, 679, 54 Cal.Rptr.3d 766, 151 P.3d 1177.) The reviewing court corrects the verdict “ ‘not by finding or changing any fact, but by applying the established law to the existing facts as found by the jury. ’ ” (Ibid., italics added, quoting People v. Cowan (1941) 44 Cal.App.2d 155, 162, 112 P.2d 62.)

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, 126 Cal.Rptr. 235, 543 P.2d 603 ; see People v. Shockley (2013) 58 Cal.4th 400, 404, 165 Cal.Rptr.3d 497, 314 P.3d 798 (Shockley ).)...