California Court of Appeal

Conviction of sexual penetration by fraudulent misrepresentation of professional purpose, Pen. Code section 289(d)(4), is affirmed over defendant's contentions that the trial court erred in rejecting a proposed jury instruction that would have stated he was not guilty of violating section 289(d)(4) if he penetrated the client against her will, and that his conviction is not supported by sufficient evidence because the victim protested and did not actually believe he was acting for professional purposes at the time of the act, where: 1) this argument is foreclosed by People v. Robinson (2016) 63 Cal.4th 200 (Robinson), which held the 'unconsciousness' requirement of fraudulent misrepresentation of professional purpose crimes is the equivalent of a lack of consent; and 2) a victim's misgivings do not exonerate a defendant under section 289(d)(4) if the evidence establishes that the victim allowed a sexual touching to occur because of a representation of professional purpose.

Appellate Information

• Published 2017/03/01

Judges

• BRUINIERS

Court

• California Court of Appeal

Counsel