Dissenting.—Applying the same framework as the majority for determining whether misdemeanor sexual battery is a lesser included *1001offense of sexual battery by false representation, I come to a different result. I conclude both statutes require an intimate touching for sexual gratification without the victim’s consent, and that sexual battery is a lesser included offense to the charge of sexual battery by fraudulent misrepresentation. The jury was instructed on both charges, and defense counsel addressed both. There was substantial evidence the victim did not consent to defendant’s conduct. Accordingly, I would affirm the judgment below.
In the context of a sexual assault, “against the . . . will” of the victim is synonymous with “ ‘without the victim’s consent.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 460 [98 Cal.Rptr.2d 315].) Consequently, CALCRIM No. 938, the pattern instruction for sexual battery (Pen. Code, § 243.4, subd. (e)(1)), defines an act as being “against a person’s will” if the person “does not consent to the act.” The instruction explains: “In order to consent, a person must act freely and voluntarily and know the nature of the act.” (Italics added.) (See maj. opn., ante, fn. 5.) A defendant therefore commits a sexual battery if he engages in an intimate, nonconsensual touching for the purpose of sexual gratification.
Sexual battery by fraudulent representation requires the victim to be “unconscious of the nature of the act” due to the perpetrator’s misrepresentation (Pen. Code, § 243.4, subd. (c)). (See People v. Ogunmola (1987) 193 Cal.App.3d 274, 279 [238 Cal.Rptr. 300] [“ ‘unconscious of the nature of the act’ ” is “related to the issue of consent” when dealing with sexual assaults].) Because consent requires that the victim know the nature of the act, where the victim is unconscious of the nature of the act, she cannot consent. (See 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 15, p. 328 [in sexual assault cases, “[t]here is no consent where the victim is unconscious of the nature of the act at the time, and the accused knows it”].)
With these definitions in mind, I part company with the majority’s conclusion that while misdemeanor sexual battery requires that the touching be against the victim’s will, i.e., without her consent, sexual battery by fraudulent representation presupposes the victim’s consent through acquiescence. Both statutes require that the touching be nonconsensual. The only difference is that this element is satisfied in Penal Code section 243.4, subdivision (c) by demonstrating that the victim was unconscious of the nature of the act and thus did not consent.1
*1002The holding in People v. Dancy (2002) 102 Cal.App.4th 21 [124 Cal.Rptr.2d 898] does not compel a contrary result. There, the defendant argued that the trial court should have instructed on consent as a defense to a charge of rape of an unconscious person. But the statute under which he was charged, Penal Code section 261, subdivision (a)(4), expressly prohibited sex with an unconscious person, recognizing that as a matter of law one who is unconscious cannot consent. The thrust of the court’s decision in Dancy was the unremarkable proposition that one cannot consent in advance to being sexually assaulted against one’s will. As the court recognized, there could be no “ ‘advance consent’ ” defense to a charge of rape of an unconscious person, “since the woman’s lack of consciousness absolutely precludes her from making her lack of consent known at the time of the act.” (Dancy, supra, 102 Cal.App.4th at p. 37.) Nothing in Dancy contradicts the proposition that sexual acts committed when the victim is unconscious — or, as here, unconscious of the nature of the act — are necessarily committed without the victim’s consent, i.e., against her will.
Nor can I concur with the majority’s conclusion that a defendant’s acquittal of sexual battery by false representation would necessitate an acquittal of sexual battery. A trier of fact could find there had been no fraudulent representation depriving the victim of an awareness of the nature of the act, but that the defendant had nonetheless engaged in a nonconsensual touching for sexual gratification. For example, if the defendant told the victim he was going to clean her teeth, but proceeded to fondle her breasts, the jury might well conclude that what had occurred was a sexual battery, but not sexual battery by fraudulent representation. In essence, that is what the trial court concluded here. It found the evidence had not demonstrated that the victim was unaware of the nonprofessional, lascivious purpose of the intimate touching, but had demonstrated an intimate touching against the victim’s will that qualified as a sexual battery.
In short, I conclude that the Bench Note to CALCRIM No. 937 correctly advises that misdemeanor sexual battery under Penal Code section 243.4, subdivision (e)(1) is a lesser included offense of sexual battery by false representation under section 243.4, subdivision (c). Both statutes require an intimate touching, for a lascivious purpose, without the victim’s consent. If a victim does not know the nature of the act, she cannot consent, and under such circumstances, an intimate touching for the purpose of sexual gratification is necessarily at least a sexual battery.
*1003Because sexual battery is a lesser included offense of sexual battery by false representation, defendant was on notice from the outset of the possibility that he could be convicted of the former. Additionally, the jury was instructed on the lesser included offense, and defense counsel addressed this charge in closing argument.
I would affirm the judgment below.
The additional element in Penal Code section 243.4, subdivision (c), of course, is the defendant’s fraudulent representation that the touching served a professional purpose. (See CALCRIM No. 937, quoted at maj. opn., ante, fn. 3.)