People v. Robinson

Filed 5/23/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S220247
v. )
) Ct.App. 4/3 G048155
LEE HOANG ROBINSON, )
) Orange County
Defendant and Appellant. ) Super. Ct. No. 11WF0857
____________________________________)

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 (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

1
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,

1 All statutory references are to the Penal Code. Hereafter, we refer to the
above cited statutes as sections 243.4(c) and 243.4(e)(1).

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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

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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.

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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 (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.) 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

2 “When the verdict or finding is contrary to law or evidence, but . . . the
evidence shows the defendant to be . . . guilty . . . of a lesser crime included
therein, the court may modify the verdict, finding or judgment accordingly without
granting or ordering a new trial, and this power shall extend to any court to which
the cause may be appealed.” (§ 1181, subd. 6; see also § 1260, authorizing
reviewing courts to “reduce the degree of the offense” on appeal.)

5
at trial.” (People v. Navarro (2007) 40 Cal.4th 668, 679.) 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.)
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; see People v. Shockley (2013) 58
Cal.4th 400, 404 (Shockley).) “The elements test is satisfied if the statutory
elements of the greater offense include all of the statutory elements of the lesser
offense, such that all legal elements of the lesser offense are also elements of the
greater. [Citation.] In other words, „ “[i]f a crime cannot be committed without
also necessarily committing a lesser offense, the latter is a lesser included offense
within the former.” ‟ ” (Bailey, supra, 54 Cal.4th at p. 748.)3 Nevertheless, if the
same evidence is required to support all elements of both offenses, there is no
lesser included offense. (Shockley, at pp. 405-406.) Each is its own offense,
based on different statutes that apply to the same conduct; neither can be said to be
a lesser of the other.
A. The Lack of Consent Requirement
Before considering the application of the elements test in this case, we
resolve the parties‟ dispute over whether the crime of sexual battery by

3 Lesser included offenses are distinguished from lesser related offenses,
which “merely bear some relationship” to another offense. (People v. Birks (1998)
19 Cal.4th 108, 119.)

6
misrepresentation of professional purpose requires lack of consent. The answer to
this question has ramifications for a number of sex offenses. Section 243.4(c)
contemplates a victim who is “unconscious of the nature of the act because the
perpetrator fraudulently represented that the touching served a professional
purpose.” Section 243.4(e)(1) includes the requirement that “the touching is
against the will of the person touched.” The Attorney General argues that despite
the distinctions between these statutory formulations, they amount to the same
thing: the victim‟s lack of consent to the touching. Defendant contends that
section 243.4(c) simply criminalizes sexual battery in one narrow circumstance,
without imposing any requirement as to the victim‟s consent.
Case law and legislative history support the Attorney General‟s position. In
the sexual assault context, it is settled that “ „without the victim‟s consent‟ ” has
the same meaning as “ „against the victim‟s will.‟ ” (People v. Giardino (2000) 82
Cal.App.4th 454, 460; see People v. Lee (2011) 51 Cal.4th 620, 635, fn. 10;
People v. Ogunmola (1987) 193 Cal.App.3d 274, 279 (Ogunmola).) Here we
must determine whether a touching is without consent when the victim is
“unconscious” of its sexual nature under section 243.4(c). If so, the defendant‟s
act is also “against the will” of the victim under section 243.4(e)(1). It is apparent
from the history of section 243.4(c) that the Legislature indeed intended the statute
to establish that misrepresentation of professional purpose may negate a victim‟s
consent.
When it enacted section 243.4(c), the Legislature also amended four other
sex crime statutes to add misrepresentation of professional purpose to listed
circumstances where a victim is “unconscious of the nature of the act.” (Sen. Bill
No. 1421 (2001-2002 Reg. Sess.) (hereafter SB 1421), enacted by Stats. 2002,
ch. 302, p. 1198 and also amending §§ 261, subd. (a)(4) [rape], 286, subd. (f)
[sodomy], 288a, subd. (f) [oral copulation], 289, subd. (d) [sexual penetration].)

7
One such circumstance was, and is, “fraud in fact.” (§§ 261, subd. (a)(4)(C), 286,
subd. (f)(3), 288a, subd. (f)(3), 289, subd. (d)(3).) The record of SB 1421‟s
passage includes extensive discussion of the common law distinction between
fraud in fact, which was deemed to vitiate consent, and fraud in the inducement,
which was deemed not to do so. (Sen. Com. on Public Safety, Rep. on SB 1421
[Apr. 16, 2002] pp. G-K (Senate Committee Report), reviewing Ogunmola, supra,
193 Cal.App.3d 274; and Boro v. Superior Court (1985) 163 Cal.App.3d 1224
(Boro); see Babaali, supra, 171 Cal.App.4th at p. 988.)
At common law, fraud in fact occurs when the defendant obtains the
victim‟s consent to an act but then engages in a different act. Fraud in the
inducement is committed when the defendant uses misrepresentations to gain the
victim‟s consent to an act, and then performs that same act. (Babaali, supra, 171
Cal.App.4th at p. 987.) In Ogunmola, a gynecologist who raped his victims during
pelvic examinations was guilty under a fraud in fact theory. His victims consented
to pelvic examinations, not sexual intercourse, and did not realize the “nature of
the act” until it had already occurred. (Ogunmola, supra, 193 Cal.App.3d at
p. 281, italics omitted.) Conversely, in Boro the defendant tricked his victim into
having intercourse as a treatment for disease. The victim consented to an act of
intercourse, accepting Boro‟s representation that it served a medical purpose.
(Boro, supra, 163 Cal.App.3d at pp. 1226-1227.) The court held that Boro
committed only fraud in the inducement, and therefore was not guilty of rape. (Id.
at p. 1229.)
The Legislature considered these precedents, giving careful attention to the
question of consent, when it framed the offense of sexual battery by
misrepresentation of professional purpose. It understood that under the common
law, perpetrators of sexual offenses by way of fraud in the inducement escaped
punishment. Although an earlier Legislature had responded to the Boro case by

8
passing section 266c, that statute requires the defendant‟s fraudulent
representation to create fear in the victim. (See Sen. Com. Rep., supra, at p. N.)
The proponents of SB 1421, motivated by incidents in which patients were
sexually abused under the guise of medical treatment, wanted to ensure that “sex
offenses committed by fraudulent inducement involving a purported professional
purpose can be prosecuted,” even without proof of the victim‟s fear. (Id. at p. N.)
When the Legislature acted to criminalize that behavior, it had before it a
committee report quoting the Boro court‟s comment that “the Legislature well
[understands] . . . how to specify certain fraud in the inducement as vitiating
consent.” (Boro, supra, 163 Cal.App.3d at p. 1229; Sen. Com. Rep., supra, at
p. I.) The terms of section 243.4(c), and of the other sex crime statutes amended
to include misrepresentation of professional purpose, reflect the Legislature‟s
intent that this kind of fraud in the inducement would henceforth be deemed to
vitiate consent. Like fraud in fact, a successful misrepresentation of professional
purpose results in the victim being “unconscious of the nature of the act.”
(§§ 243.4(c), 261, subd. (a)(4), 286, subd. (f), 288a, subd. (f), 289, subd. (d).) In
that circumstance, there is no legal consent. Section 261.6, which defines
“ „consent‟ ” for purposes of sections 261, 286, 288a, and 289, specifies that the
term means “positive cooperation in act or attitude pursuant to an exercise of free
will. The person must act freely and voluntarily and have knowledge of the nature
of the act or transaction involved.” (Italics added.) The term “unconscious of the
nature of the act,” as used in the statutes addressed by SB 1421, is based on this
understanding of the consent requirement. (See Sen. Com. Rep., supra, at p. E,
quoting § 261.6.)4

4 In Babaali, the majority found no indication in the history of SB 1421 that
the Legislature meant to include a lack of consent element in any of the statutes
(footnote continued on next page)

9
 Thus, the Legislature has refined the consent requirements for sex crimes to
include not only the ordinary circumstance where consent is never given, but also
more complicated circumstances where it is obtained through deceit. A woman
who is groped on a crowded bus is plainly subjected to a sexual touching without
her consent. That is the sense in which consent is ordinarily understood. But
under section 243.4(c), a woman who is tricked into a sexual touching under the
pretense of a professional purpose is also touched without her legal consent.
B. Application of the Elements Test
The parties agree that misdemeanor sexual battery and sexual battery by
misrepresentation of professional purpose share two elements: The defendant
must touch an intimate part of the victim, and do so with a sexual purpose. Given
our conclusion that section 243.4(c) requires lack of consent, every defendant who
violates that statute also satisfies the third element of misdemeanor sexual battery,
because the victim is sexually touched without consenting. 5 The traditional
description of the elements test would appear to make misdemeanor sexual battery
a lesser included offense of sexual battery by misrepresentation of professional

(footnote continued from previous page)

criminalizing fraudulent representation of a professional purpose. (Babaali, supra,
171 Cal.App.4th at pp. 997-998.) While we disagree on that point, we reach the
same result as the Babaali majority: Misdemeanor sexual battery is not a lesser
included offense of sexual battery by misrepresentation of professional purpose.
5 The parties characterize each of these crimes as encompassing three
elements, but section 243.4(c) actually sets out four. As stated in the CALCRIM
instruction given in this case, they are: (1) an intimate touching, (2) a sexual
purpose, (3) a fraudulent representation of a professional purpose, and (4)
consequent unconsciousness of the sexual nature of the act on the part of the
victim. (CALCRIM No. 937.) Nevertheless, as we have explained, the last two
elements of section 243.4(c) outline a circumstance where the victim‟s consent is
lacking, which is equivalent to the third element of misdemeanor sexual battery.

10
purpose. (See Bailey, supra, 54 Cal.4th at p. 748 [if one crime cannot be
committed without also committing a lesser offense, the latter is an included
offense].) However, the traditional description is insufficient in circumstances
where the same evidence is needed to establish all elements of both offenses. In
such a case, if the evidence fails to support the jury‟s finding on any element of
one offense, the remaining findings are insufficient to support a conviction of the
other. The two offenses overlap entirely based on the facts presented and the
manner in which the case is tried, leaving no room for a lesser included offense.
An analogous situation was presented in Shockley. There the defendant
was charged with lewd conduct with a child. (§ 288, subd. (a).) He claimed the
trial court was required to instruct the jury on battery as a lesser included offense.
(§ 242; Shockley, supra, 58 Cal.4th at p. 403.) His argument was that a touching
with lewd intent, as required by section 288, subdivision (a), is necessarily a
“harmful or offensive touching” under section 242. (Shockley, at p. 405.) The
argument failed. The defendant‟s theory “would mean this form of battery (where
lewd conduct supplies the required harmful or offensive touching) is not a lesser
and included offense of lewd conduct but is essentially the identical offense. If
guilt of battery is predicated on guilt of lewd conduct — i.e., if a person is guilty
of battery because that person committed lewd conduct — neither crime would
have an element not also required of the other. Substantial evidence could never
exist that an element of the lewd conduct offense is missing but that the defendant
is guilty of battery as a lesser included offense. [Citation.] A jury could never
find the defendant not guilty of lewd conduct (perhaps because of the lack of lewd
intent), but guilty of battery, without finding some other element of battery not
included within lewd conduct. Accordingly, even under defendant‟s argument, the
court would never have to instruct on battery as a lesser included offense of lewd
conduct.” (Ibid.)

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 In Shockley, if lewd conduct were the only ground on which a touching was
“offensive” for purposes of battery, then simple battery could be not be a lesser
included offense. Here the problem arises in a different context, but the result is
the same. The prosecution‟s theory was that defendant‟s misrepresentations
negated any consent on the part of Trang and Odette. The theory failed because
the women were not deceived. Lack of consent for purposes of misdemeanor
sexual battery could not be premised on the jury‟s unsupported findings on the
charges of sexual battery by misrepresentation of professional purpose. In order to
convict defendant of the misdemeanor offense, the jury would have had to find
lack of consent on a basis other than fraud.6 As in Shockley, a finding of a
different form of one element was required, and therefore the lesser offense is not
included in the greater. (Shockley, supra, 58 Cal.4th at p. 405.)
Bailey is also instructive. There the defendant was convicted of escaping
from prison, but the evidence did not show that he ever reached an unauthorized
location, as required by the escape statute. We considered whether the conviction
could be reduced to attempted escape as a lesser included offense. (Bailey, supra,
54 Cal.4th at p. 747.) We decided it could not, because attempted escape has a
specific intent requirement that is not included in the crime of escape. (Id. at p.
749.) Pertinent to our analysis here, we reasoned that when a reviewing court
modifies a conviction to reflect a lesser included offense, it is not empowered to
make additional factual findings. It may only conform the verdict to the facts as
found by the jury. In Bailey, “the case was tried solely as an escape, the trial court

6 Section 243.4(e)(1) is a “ „catchall‟ provision,” encompassing a variety of
forms of lack of consent. (People v. Smith (2010) 191 Cal.App.4th 199, 207; see
id. at pp. 208-209 [misdemeanor sexual battery may be committed against a victim
who is unconscious or too intoxicated to consent].)

12
did not instruct on attempt to escape, and the jury was never required to make a
finding of specific intent to escape . . . . Because the crime of attempt to escape is
not necessarily included in the offense of escape under the elements test, the jury,
by finding defendant guilty of escape, did not impliedly find all the elements of
the attempt offense.” (Id. at p. 752.)
So too here, the jury was not asked to decide whether Trang and Odette
agreed to defendant‟s acts. It was only told to consider whether his
misrepresentations rendered them “unconscious of the nature of the act[s].”
(§ 243.4(c).) On the evidence presented, the jury could have found that neither
woman agreed to defendant‟s touching even though they were not deceived. But it
did not consider lack of consent in this ordinary sense. It is not enough to say the
jury could have made a finding required to support a conviction, if the record does
not show that it did make the finding. To conclude that Trang and Odette were
aware of the nature of defendant‟s acts but did not consent, the Court of Appeal
was required to engage in factfinding of its own. It considered an alternate theory
of liability, asserted for the first time on appeal. Section 1181, subdivision 6 does
not authorize such a judicial undertaking. (Bailey, supra, 54 Cal.4th at p. 752;
People v. Navarro, supra, 40 Cal.4th at p. 679; People v. Cowan, supra, 44
Cal.App.2d at p. 162.)
There is a further reason why misdemeanor sexual battery cannot be
considered a lesser included offense of sexual battery by misrepresentation of
professional purpose. We touched upon the point in Shockley. The consent
element of misdemeanor sexual battery is a general one, whereas sexual battery by
misrepresentation of professional purpose contemplates a specific circumstance in
which consent is vitiated. In Shockley we pointed out the notice problems that can
arise if a narrower charged offense is deemed to include a broader lesser offense.
Shockley was charged only with lewd conduct, but a battery might have been

13
based on an offensive touching of some other kind. We observed, “ „[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, supra, 15 Cal.3d at p. 809.) Convincing
the jury there was no lewd intent would be a complete defense to a lewd conduct
charge. Charging only lewd conduct would not provide the defendant with notice
of the need to defend additionally against a battery charge based on an offensive
touching not included within the elements of lewd conduct.” (Shockley, supra, 58
Cal.4th at p. 406; see People v. Lohbauer (1981) 29 Cal.3d 364, 368-371.)
Similarly here, defendant was not given notice to prepare a defense against
the charge that he touched his victims without their consent in any way other than
by tricking them into thinking they were receiving a professional service. If
misdemeanor sexual battery had been charged, he would have been on notice of
the need to defend against that charge. He may have chosen to argue that, even
though Trang and Odette were not misled by his promises of a professional
service, they actually did consent to being touched. But he was not given that
notice and the jury was not asked to consider whether the victims consented in the
ordinary sense. For all these reasons, misdemeanor sexual battery cannot be
considered a lesser included offense of sexual battery by misrepresentation of
professional purpose. The court erred by modifying defendant‟s convictions under
section 1181, subdivision 6.7

7 The lesser included offense doctrine applies in three areas: (1) jury
instructions, which were at issue in Shockley, supra, 58 Cal.4th 400; (2) sentence
modification under section 1181, subdivision 6, at issue here and in Bailey, supra,
54 Cal.4th 740; and (3) multiple convictions, which may not be based on
necessarily included offenses (see People v. Pearson (1986) 42 Cal.3d 351, 355).
In the multiple conviction context, the doctrine sometimes operates differently.
(See People v. Reed (2006) 38 Cal.4th 1224, 1227-1231 [accusatory pleading test
(footnote continued on next page)

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 III. DISPOSITION
We reverse the judgment of the Court of Appeal, and remand for further
proceedings consistent with this opinion.

CORRIGAN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.

(footnote continued from previous page)

does not apply].) We have no occasion here to consider whether our analysis of
the elements test would apply to a defendant facing multiple convictions.

15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Robinson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 227 Cal.App.4th 387
Rehearing Granted

__________________________________________________________________________________

Opinion No. S220247
Date Filed: May 23, 2016
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: James A. Stotler

__________________________________________________________________________________

Counsel:

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.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Leonard J. Klaif
P.O. Box 1657
Ojai, CA 93024
(805) 640-9659

Laura Baggett
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-3120