Filed 7/24/13 P. v. Carranza CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B240799

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA079573)
         v.

RIGOBERTO CARRANZA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Eric C.
Taylor, Judge. Affirmed.
         David H. Goodwin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Steven D. Matthews
and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


                                          _______________________
       Appellant Rigoberto Carranza appeals from the judgment entered following his
convictions on one count of sexual penetration by a foreign object (Pen. Code,1 § 289,
subd. (d)), three counts of sexual battery by fraud (§ 243.4, subd. (c)), and three counts of
misdemeanor sexual battery (§ 243.4, subd. (e)(1)). He raises the following arguments
on appeal: (1) the sexual battery statute impermissibly discriminates on the basis of
gender by prohibiting the non-consensual touching of the breast of a female, but not the
chest of a male; (2) the evidence was insufficient to support the convictions for sexual
penetration and sexual battery by fraud because Carranza never expressly represented
that his touching of the victims’ intimate body parts served a professional purpose; and
(3) the trial court erred in failing to give the jury a unanimity instruction. We affirm.


           FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     Overview of the Charges
       Carranza owned and operated a small business in Gardena, California where he
provided massage therapy services and sold natural herbs and supplements. Carranza’s
office consisted of a waiting room in the front with chairs for customers, a treatment
room in the back with a massage table and mat, and a bathroom that was accessible from
the treatment room. Based on allegations that Carranza inappropriately touched eight
female customers who sought treatment at his office between 2009 and 2010, the Los
Angeles County District Attorney charged Carranza with one count of sexual penetration
by a foreign object, three counts of sexual battery by fraud, and four counts of
misdemeanor sexual battery. Following Carranza’s not guilty plea to all charges, his case
was tried to a jury and he was found guilty on seven of the eight counts.




1      Unless otherwise stated, all further statutory references are to the Penal Code.


                                              2
II.    Prosecution Evidence
       A.     Count 1 – Yolanda C.
       In count 1, Carranza was charged with sexual penetration by a foreign object of
Yolanda C. On July 30, 2010, Yolanda went to Carranza’s office with her aunt and four
children because she was having a problem with her uterus. After Yolanda explained the
problem to Carranza, he told her that he could help her and escorted her to the back room
for treatment. At Carranza’s direction, Yolanda lay face down on the massage table. He
began “cracking” her back by applying pressure with his hands. He instructed her to
lower her pants a few inches below her waist and proceeded to “crack” her tailbone,
causing her a lot of pain. As Yolanda screamed in pain, Carranza quickly placed his hand
under her clothes, “cracked” a bone near her inner thigh, and then twice inserted two
fingers inside her vagina for a few seconds. Yolanda told Carranza to stop and tried to sit
up. He responded that he was not yet finished, but did not provide any explanation for
his procedure. Instead, Carranza grabbed a vibrating device and began to approach
Yolanda with it. Seeing the device, Yolanda stood up and walked out of the room.
       After paying Carranza, Yolanda went to the car with her children while her aunt
stayed in the office to get a massage. Although Yolanda felt bad, she did not try to stop
her aunt from seeing Carranza. While she waited in the car, Yolanda considered calling
the police, but she did not know if Carranza’s touching was a normal part of his
treatment. Once she returned home, Yolanda threw the clothes she was wearing into the
trash and took a bath. Later that night, she visited her neighbor, Maria Melendez, and
cried as she told Melendez what had happened. Melendez assured Yolanda that what
Carranza had done to her was not normal and advised her to contact the police. Yolanda
called the police from her neighbor’s house and then went to the police station the
following day to file a complaint.

       B.     Count 3 – Chanel C.
       In count 3, Carranza was charged with misdemeanor sexual battery of Chanel C.
On August 8, 2010, Chanel C. visited Carranza’s office for treatment on her neck and


                                             3
back. In the treatment room, Carranza instructed Chanel to lie on her back on the floor.
He first massaged her breasts and vagina over her clothes. He then opened her legs and
placed a vibrating machine on her vagina. Chanel grabbed Carranza’s hand in protest
and moved the vibrator off her body. At some point, Carranza told Chanel to stand up.
He approached her from behind, placed his hands on her breasts over her clothes, and
lifted her up. Carranza then directed Chanel to lie down on the floor again. He spread
her legs a second time and slid his hand under her clothes touching her vagina. Chanel
moved away from Carranza and told him “no.”
       During the massage, Carranza asked Chanel whether she was sexually active,
which made her feel uncomfortable. He also instructed her to move her pelvic area in an
up and down motion. After Chanel complied, Carranza again tried to use the vibrator on
her vagina, but she quickly moved it to the side of her leg. When Carranza moved the
vibrator back toward her inner thigh, Chanel stood up and said she was leaving. She
paid Carranza for his services, but felt stressed and confused about his treatment. The
following day, Chanel saw a television news story about Carranza and then immediately
called the police.

       C.     Count 4 – Blanca H.
       In count 4, Carranza was charged with sexual battery by fraud of Blanca H. On
July 27, 2010, Blanca went to Carranza’s office with her mother seeking treatment for
lower back pain. Blanca’s mother accompanied her into the back room and remained
standing near the bathroom door. Carranza began his treatment by standing directly
behind Blanca, placing his hands over her breasts, and lifting her up to “crack” her back.
Carranza did not tell Blanca why he grabbed her breasts and she felt awkward about it,
but she assumed it was how he treated back pain. After directing Blanca to lie face down
on the floor mat, Carranza continued to “crack” her back over her clothing by applying
pressure.
       Carranza told Blanca there was something wrong with her tailbone. He instructed
her to lie face down on the massage table and to lower her pants. He applied pressure to


                                             4
her tailbone and caused it to pop. Carranza then began massaging the area with lotion
and said that it was to prevent swelling. As Carranza was massaging Blanca’s tailbone,
he slid his hands under her pants and underwear and touched her vagina. When Blanca
closed her legs in response, Carranza told her, “I’m not trying to do anything. I’m just
going to massage so it won’t swell.” He opened her legs with his hand and continued
massaging her tailbone, upper thighs, and the area near her vagina for three to four
minutes. While he massaged Blanca, Carranza conversed with her mother about being
from the same hometown.
       Carranza directed Blanca to pull up her pants and turn onto her back. Without any
explanation, he began using a vibrating machine on her lower abdomen and upper legs
near her vaginal area. Carranza then sat on the massage table, placed Blanca’s head on
his lap, and massaged her torso over her clothing from her shoulders to her breasts down
to her waist. Blanca was uncomfortable, but she did not say anything at that time because
she thought that Carranza knew what he was doing. Carranza next sat on a chair and
instructed Blanca to sit on his lap with her back toward him and her legs straddling his
left knee. He told her to lean back because he wanted to see if she could put pressure on
her tailbone without pain. Blanca complied and confirmed that her tailbone did not hurt.
       After paying Carranza, Blanca and her mother left the office. As they were
walking out, Blanca told her mother not to take anyone else to see Carranza, but she did
not explain what had happened to her because she was embarrassed. She also did not
initially report Carranza to the police even though she felt uncomfortable because she
was uncertain if her experience was extreme enough to warrant reporting it. About two
weeks after the visit, Blanca saw a television news story about Carranza and became very
upset because it confirmed to her that what he had done was wrong. She then decided to
contact the police.

       D.     Count 5 – Luz M.
       In count 5, Carranza was charged with misdemeanor sexual battery of Luz M.
On July 22, 2010, Luz visited Carranza’s office with her husband and their two young


                                             5
daughters because she was having neck and back pain. Carranza instructed Luz to follow
him into the back room by herself, but she indicated that she wanted her husband with her
to feel comfortable. Luz’s husband and daughters accompanied her into the room and sat
together on a nearby chair. At Carranza’s direction, Luz sat on the floor mat and he
began massaging her neck and back. He instructed her to lie on her stomach and
continued massaging her back over her clothes. Carranza then told Luz to open her legs,
and using his hand, he grabbed her vagina over her pants and asked her if it hurt. Luz
quickly moved Carranza’s hand away from her body, closed her legs, and sat up. She did
not say anything to Carranza because she was afraid of her husband’s reaction.
       Carranza directed Luz to lie face up on the floor. He placed a vibrating machine
on her stomach over her clothes. He tried pulling down her pants, but Luz resisted and
held them up. As Carranza used the machine to massage Luz’s stomach, he asked her
questions about her level of sexual activity and desire. Luz answered the questions
because she trusted Carranza like a doctor. After paying Carranza for the massage, Luz
and her family left the office. Once in the car, Luz’s husband asked her if Carranza had
touched her vagina. Luz initially said no because she was afraid her husband might act
violently toward Carranza, but as they were driving, she told him the truth about the
touching. Luz did not immediately report Carranza to the police because she felt that she
had no proof. In August 2010, Luz saw a television news report concerning Carranza,
and a few days later, she contacted the police.

       E.     Count 6 – A. S.
       In count 6, Carranza was charged with sexual battery by fraud of A. S. On July 3,
2009, A. went to Carranza’s office seeking treatment for back pain. A. told Carranza that
she was very depressed because of the pain in her back and that she had not had a period
in the past three years. In the treatment room, Carranza had A. stand directly in front of
him as lifted her blouse and bra and placed his forearm under her breasts. Carranza lifted
her breasts with his forearm and said that her breasts were heavy and affected her back.
A. felt uncomfortable and pulled down her blouse and bra. Carranza lifted them up again


                                             6
several times and touched A.’s breasts with his hands. Carranza then moved directly
behind A., grabbed her breasts with both hands, and “cracked” her back. When A. told
Carranza that she was still in pain, he indicated that she probably had inflammation in her
backbone.
       At Carranza’s direction, A. sat on the massage table. As A. discussed her lack of
sexual desire with her husband, Carranza massaged her kneecap and asked her if she felt
anything. When A. answered that she did not, Carranza told her that she was “really
fucked up.” He directed her to lie on her back and began massaging her abdomen with
his hands. He then pulled down her pants and underwear and said that he was going to
help her with her period. A. initially tried to pull her clothes back up, but Carranza
continued to pull them down until they were near her knees. A. eventually relented, but
kept her eyes closed because she was embarrassed. Carranza next used a large vibrating
machine to massage A.’s abdomen. With his hands, he opened her legs and placed the
vibrator directly on her vagina. A. felt a suctioning sensation on her vagina, and in an
upset tone, she asked Carranza, “what are you doing.” At that point, Carranza stopped
the massage.
       As A. was leaving the office, Carranza offered to sell her pills that could increase
her sexual desire. A. answered that she was not interested, paid him $20, and promptly
left. Once A. arrived home, she threw her clothes in the trash, took a bath, and cried.
She then called her husband and told him what had happened with Carranza. He told her
to contact the police, and a few days later, A. and her husband went to the police station
to file a complaint.

       F.      Counts 7 & 8 – Olga G. and Carmen G.
       In count 7, Carranza was charged with sexual battery by fraud of Olga G., and
                                                                             2
in count 8, he was charged with misdemeanor sexual battery of Carmen G. On one
occasion between November 2009 and January 2010, Olga went with her mother,


2      Carranza was found not guilty on count 8.


                                             7
Carmen, to Carranza’s office. Carranza directed Olga to follow him into the back room.
In response to Carranza’s questions, Olga told him that she had neck pain, was not
married, and was happy in her relationship. Carranza also asked if she was “satisfied,”
which she understood to mean sexually satisfied. Olga was uncomfortable, but answered
the question because she believed Carranza was a doctor.
       As Olga stood in front of Carranza, he grabbed her neck and “cracked” it. He then
asked her to lie face down on the massage table. Carranza massaged Olga’s neck and
shoulders with his hands and used a large vibrating machine to massage her back,
buttocks, and legs. He asked her to lie on her back and massaged her neck and chest with
his hands. As he was massaging her chest, Carranza reached under Olga’s shirt and bra
and asked if she had breast implants. Olga was uncomfortable with the touching, but did
not say anything. Carranza next used the vibrator to massage Olga’s abdomen down to
her pubic bone, and with one hand on her inner thigh, he tried to push her legs apart.
When Olga told Carranza the pain was in her neck, he responded that it was important for
her whole body to relax. Carranza continued moving the vibrator up and down Olga’s
inner thighs less than a finger’s width from her vagina. She made a motion with her hand
to stop and again said that the pain was in her neck. At that point, Carranza moved to
Olga’s side and she felt an erection against her stomach. At the end of the massage,
Carranza escorted Olga to the waiting room. She felt uncomfortable and embarrassed by
the experience, but she did not say anything to Carranza because she saw him as a doctor
and an authority figure.
       Carmen then went into the treatment room with Carranza. Olga did not try to stop
her mother from seeing Carranza at that time because she did not believe he would
engage in similar conduct with an older woman. Once in the treatment room, Carmen
told Carranza that she was having lower back pain and he had her lie on her back on the
massage table. Carranza lifted Carmen’s blouse and lowered her pants to the pelvic area.
He then began using the vibrator on Carmen’s neck, shoulders, stomach, and inner thighs
close to her vagina. When Carmen told Carranza that she was there for a back massage,
he responded that he was massaging all of her nerves.

                                             8
       After paying Carranza, Olga and Carmen left the office. Once in the car, Carmen
told Olga that Carranza had crossed the line with her. Carmen said that Carranza had
held the vibrator on her lower stomach for a long time and she did not like it. Olga told
her mother that she never wanted to come to Carranza’s office again. Olga explained that
Carranza had touched her breasts, opened her legs, and placed the vibrator where she
“could feel everything.” Olga asked her mother not to tell anyone what had happened
because she was ashamed. A few weeks later, when Olga’s neck pain continued to
worsen, she sought treatment from a female chiropractor whom she told about her
experience with Carranza. The chiropractor later informed Olga of the media coverage
concerning Carranza, and after seeing some of the coverage herself, Olga decided to
contact the police.

       G.     Count 9 – Martha C.
       In count 9, Carranza was charged with misdemeanor sexual battery of Martha C.
On one occasion in 2009, Martha visited Carranza’s office with her then husband because
she was having urinary issues. Carranza told her it was a common issue for women with
children and she might have a fallen uterus. He instructed Martha to remove her pants
and lie face up on the massage table. Martha lay down on the table and lowered her
pants, but not her underwear. Her husband was present in the room. Using two fingers,
Carranza made circular motions over the opening of Martha’s vagina for about two
minutes. He then used a vibrating machine to massage her abdomen and vaginal area
over her underwear for about 15 minutes.
       Carranza did not tell Martha why he was touching her vagina and she did not ask
him because she initially thought it was a normal part of the procedure. However, she
was uncomfortable with the touching, and at some point, she asked her husband to tell
Carranza to stop. Martha believed that it was inappropriate in her culture for a woman to
talk about sexual matters with a man and that it would have been more prudent for her
husband to say something to Carranza. Martha’s husband, however, did not observe any
inappropriate touching by Carranza and did not intervene on her behalf.


                                             9
       A few minutes later, Carranza finished using the machine. He commented that
Martha’s legs were pretty which made her feel uncomfortable. After paying Carranza
and returning to the car, Martha talked to her husband about what Carranza had done to
her. She did not report his conduct to the police because she felt she had no proof.
About a year later, Martha saw the media coverage about Carranza and was angry to
learn that there were other victims. She then contacted the police.

       H.     Prior Uncharged Conduct
       In 2000, Rocio C., who was 18 years old at the time, went to Carranza’s house in
Gardena for treatment for lower back pain. She was accompanied by her mother and
younger brother. They went into the living room of the house and Rocio was told to lie
face up on the floor. Rocio’s mother and brother sat in the living room next to Carranza’s
wife and chatted with her. Carranza positioned himself above Rocio’s thighs and
“cracked” her back and hips. He then began pressing his hands on her lower abdomen
and vaginal area over her clothes. Carranza quickly slid his hand under her clothes and
touched her vagina with two fingers. In response, Rocio grabbed his hand and looked at
him. Carranza asked Rocio if she had hurt herself on a bike, and she told him that she
had not. He removed his hand from her pants and continued to massage her body. As he
was massaging Rocio’s chest area, Carranza slid his hand under her clothes and touched
her breasts. She was scared and confused by the touching. Carranza later took Rocio to
another part of the living room and asked her to lift her shirt and bra. He applied a lotion
to her chest with his hands and said it was to help relax her muscles. He massaged the
lotion onto her breasts for about a minute. After paying Carranza and returning home,
Rocio talked to her mother about what had happened. The following day, they reported
Carranza’s conduct to the police.

       I.     Police Investigation and Press Release
       Apart from Rocio’s complaint in 2000, the first two victims to report Carranza’s
inappropriate touching to the police were A. in July 2009 and Yolanda in July 2010. In
August 2010, following Yolanda’s complaint, the Gardena Police Department issued a

                                             10
press release concerning Carranza to local media outlets. The press release stated that
Carranza, who was known as a “witch doctor,” was believed to have sexually assaulted at
least two female customers. It also stated that the police department believed there may
be additional victims. The reference to a “witch doctor” was based on information
contained in a police report in which the victim used a Spanish version of that term to
describe Carranza.

III.   Defense Evidence
       The defense called the officers who interviewed the complaining witnesses to
testify about the witnesses’ statements to the police. Officer Frank Kim interviewed A. in
July 2009. A. indicated that Carranza’s office was crowded when she arrived, which was
inconsistent with her trial testimony that it was empty. Officer Marisol Bazan
interviewed Yolanda in July 2010. Yolanda did not disclose that she had visited
Carranza’s office with her aunt and merely stated that she was alone with Carranza when
the incident occurred. Contrary to her trial testimony, Yolanda also told the officer that
Carranza had placed a vibrating machine on her vagina during the treatment.
       Detective Richard Reynaga, the investigating officer on the case, interviewed each
of the eight victims. In their initial interviews, both Yolanda and A. failed to disclose
that they first reported Carranza’s conduct to a family member or friend, and Yolanda
never said that she had visited Carranza’s office with her aunt. Both Martha and Luz
made statements that were inconsistent with those made by their husbands in certain
details. In addition, neither Luz nor her husband ever mentioned that Carranza had used
a vibrating machine during the treatment.
       Five female customers and one male customer of Carranza testified on his behalf.
They had sought treatment from him on a number of occasions for various injuries and
ailments, including back and shoulder pain, sciatic nerve pain, carpal tunnel syndrome,
and vertigo. As described by the female witnesses, Carranza would adjust the back or
shoulders by standing directly behind them, placing his arms across the chest area above
the breasts, and lifting them up to “crack” the back. He treated lower back and sciatic


                                             11
nerve pain by applying pressure to the back, hips, or legs with his hands and at times
massaging the area with a vibrating machine. Carranza never touched any of these
women in a sexual manner or did anything during his treatment that made them feel
uncomfortable. Each of the witnesses had recommended Carranza to family and friends.
The defense also presented evidence that one male employee and one female employee of
the Gardena Police Department had sought treatment from Carranza in the past and both
had been satisfied with his services.
       Carranza’s son, Rigoberto Jr., testified on his father’s behalf. Carranza’s son had
worked in the office since it opened in 2007 and handled the sales of natural products.
Carranza treated 10 to 15 new customers per day, and the office was open seven days a
week. The office did not have a fee schedule and Carranza only charged customers what
they wanted to give. The door to the treatment room was always open and Carranza
could be observed treating customers from the waiting room. Carranza’s parents had
performed the same type of work in Mexico, and they taught both him and his sister how
                                        3
to treat people’s injuries and ailments.


                                        DISCUSSION

I.     Equal Protection Challenge to Section 243.4

       Carranza first asserts that the sexual battery statute under which he was convicted
violates the equal protection clause of the California Constitution because it prohibits the
non-consensual sexual touching of the breast of a female, but not the chest of a male. In
support of this argument, he contends that the statute impermissibly discriminates against
men because there is no significant difference between male and female breasts. He also

3      The prosecution called Carranza’s sister as a rebuttal witness. She testified that
she grew up with Carranza in Mexico and they received instruction from their parents on
bone manipulations. The training did not include touching a woman’s breasts under her
clothing or touching a woman’s vagina either over or under her clothing. Carranza’s
parents also did not instruct them on the use of a vibrating machine.


                                             12
claims that the statute demeans women by “implying a paternalistic attitude towards
women as the gentler sex needing greater protection.” We conclude that Carranza’s
equal protection challenge fails because the statute draws a lawful distinction between
male and female breasts in furtherance of a compelling government interest.
       On counts 3, 5, and 9, Carranza was convicted of misdemeanor sexual battery in
violation of section 243.4, subdivision (e)(1), which prohibits any person from touching
“an intimate part of another person, if the touching is against the will of the person
touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual
abuse.” On counts 4, 6, and 7, Carranza was convicted of felony sexual battery by fraud
in violation of section 243.4, subdivision (c), which prohibits any person from touching
“an intimate part of another person for the purpose of sexual arousal, sexual gratification,
or sexual abuse” if “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.”
Section 243.4, subdivision (g)(1) defines an “intimate part” for purposes of the statute as
“the sexual organ, anus, groin, or buttocks of any person, and the breast of a female.”
       Carranza bases his equal protection challenge on article I, section 7, subdivision
(a) of the California Constitution, which provides in relevant part: “A person may not be
… denied equal protection of the laws . . . .” Under California law, a classification based
on gender is considered suspect for purposes of an equal protection analysis, and as such,
is subject to strict scrutiny. (Catholic Charities of Sacramento, Inc. v. Superior Court
(2004) 32 Cal.4th 527, 564; Arp v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 395,
400; Sail’er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17-20.) In evaluating legislation under
the strict scrutiny standard, “‘the state bears the burden of establishing not only that it has
a compelling interest which justifies the law but that the distinctions drawn by the law are
necessary to further its purpose.’” (Sail’er Inn, Inc. v. Kirby, supra, at pp. 16-17.)4


4      In contrast to California law, a gender-based classification challenged under the
equal protection clause of the United States Constitution is subject to an intermediate
level of scrutiny. (Clark v. Jeter (1988) 486 U.S. 456, 461; Orr v. Orr (1979) 440 U.S.
268, 279.) To withstand intermediate scrutiny under the federal equal protection clause,

                                              13
       “‘“The concept of the equal protection of the laws compels recognition of the
proposition that persons similarly situated with respect to the legitimate purpose of the
law receive like treatment.”’ [Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 531.)
Therefore, “‘[t]he first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not
whether persons are similarly situated for all purposes, but ‘whether they are similarly
situated for purposes of the law challenged.’ [Citation.]” (Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253.) “If persons are not similarly situated for purposes of the
law, an equal protection claim fails at the threshold. [Citation.]” (People v. Buffington
(1999) 74 Cal.App.4th 1149, 1155.)
       As the United States Supreme Court has observed, “a legislature may not ‘make
overbroad generalizations based on sex which are entirely unrelated to any differences
between men and women or which demean the ability or social status of the affected
class.’” (Michael M. v. Sonoma County Superior Court (1981) 450 U.S. 464, 469.) Yet
equal protection of the laws “does not ‘demand that a statute necessarily apply equally to
all persons’ or require ‘“things which are different in fact . . . to be treated in law as
though they were the same.”’” (Ibid.) Statutes that treat men and women differently
consistently have been upheld “where the gender classification is not invidious, but
rather realistically reflects the fact that the sexes are not similarly situated in certain
circumstances.” (Ibid.; see also Michael M. v. Superior Court (1979) 25 Cal.3d 608, 611
[criminal statute prohibiting a male from engaging in sexual intercourse with a female
under the age of 18 was “supported not by mere social convention but by the immutable
physiological fact that it is the female exclusively who can become pregnant”].)
       Statutes that draw a gender-based distinction between female and male breasts
generally have been upheld against equal protection challenges in California and other


“‘“classifications by gender must serve important governmental objectives and must be
substantially related to achievement of those objectives.”’” (Orr v. Orr, supra, at p. 279.)


                                               14
jurisdictions. In Locker v. Kirby (1973) 31 Cal.App.3d 520, an administrative regulation
prohibited certain businesses from employing bare-chested women, but not bare-chested
men, on premises where alcohol was sold. In considering the constitutionality of the
statute, the Court of Appeal noted “the indisputable fact that the naked female breast has
for centuries been a symbol of sexuality but that no such generalization can be made
about the male chest.” (Id. at p. 526.) Given that fact, “the obvious physical differences
between mature male and females breasts,” and “the state’s interest in regulating the
sale of alcoholic beverages,” the court concluded that the statute did not offend equal
protection. (Ibid.; see also Buzzetti v. City of New York (2d Cir. 1998) 140 F.3d 134, 143
[rejecting equal protection challenge to ordinance regulating female, but not male, topless
dancing because the “male chest is routinely exposed . . . without involving any sexual
suggestion” whereas “public exposure of the female breast is rare under the conventions
of our society, and almost invariably conveys sexual overtones”]; United States v. Biocic
(4th Cir. 1991) 928 F.2d 112, 115-16 (rejecting equal protection challenge to ordinance
prohibiting public exposure of only female breasts and observing that societally regarded
“erogenous zones . . . . still include (whether justifiably or not in the eyes of all) the
female, but not the male, breast”].)
       Similarly, in Eckl v. Davis (1975) 51 Cal.App.3d 831, the Court of Appeal upheld
a city ordinance that proscribed nudity in public places and defined nudity as including
an exposed female, but not male, breast. In concluding that the ordinance did not deny
women equal protection of the laws, the court observed as follows: “Nature, not the
legislative body, created the distinction between that portion of a woman’s body and that
of a man’s torso. Unlike the situation with respect to men, nudity in the case of women is
commonly understood to include the uncovering of the breasts.” (Id. at p. 848.) Given
the physical differences between men and women, the court determined that the gender-
based classification in the ordinance was “reasonable, not arbitrary, and rest[ed] upon a
ground of difference having a fair and substantial relation to the object of the legislation,
so that all persons similarly circumstanced are treated alike.” (Ibid.; see also Craft v.
Hodel (D.Mass. 1988) 683 F.Supp. 289, 300 [rejecting equal protection challenge to

                                               15
regulation prohibiting public exposure of female, but not male, breasts because statute
“simply recognizes a physical difference between the sexes which has implications for
the moral and aesthetic sensitivities of a substantial majority of the country”]; City of
Albuquerque v. Sachs (N.M.Ct.App. 2004) 135 N.M. 578, 583 [rejecting equal protection
challenge to ordinance prohibiting only females from exposing breasts in public places
because statute “recognizes that females and males have different anatomies, so the
objective is accomplished in a non-discriminatory manner”].)
       Carranza’s claim that section 243.4 violates the equal protection clause of the
California Constitution fails for similar reasons. Contrary to Carranza’s arguments on
appeal, there are significant differences in the physical appearance and anatomical
function of mature male and female breasts. While Carranza contends that society has
become more “unisex” in nature, the physiological distinctions between male and female
breasts continue to exist. As Justice Stewart reasoned in Michael M. v. Sonoma County
Superior Court, supra, 450 U.S. 464, the equal protection clause “does not mean that the
physiological differences between men and women must be disregarded. While those
differences must never be permitted to become a pretext for invidious discrimination, . . .
[t]he Constitution surely does not require a State to pretend that demonstrable differences
between men and women do not really exist.” (Id. at 481 (Stewart, J., concurring).)
Moreover, we agree with the Attorney General that, because female breasts generally
have been regarded in society as an erogenous zone, women are at a far greater risk than
men of being subjected to unwanted sexual touching on their breasts. Accordingly, there
is a compelling government interest in protecting females from the non-consensual
touching of their breasts and the sexual battery statute is narrowly tailored to further that
interest. Under these circumstances, section 243.4’s gender-based distinction between
female and male breasts does not deny either men or women equal protection of the laws.

II.    Sufficiency of the Evidence on Counts 1, 4, and 6
       Carranza challenges the sufficiency of the evidence supporting his convictions
on one count of sexual penetration by a foreign object in violation of section 289,


                                             16
subdivision (d) (count 1) and two counts of sexual battery by fraud in violation of section
243.4, subdivision (c) (counts 4 and 6). Carranza specifically claims that the evidence
was insufficient to support a finding that he made any fraudulent representations to the
victims in these counts about the purpose of his touching. We disagree.
        In assessing a claim of insufficient evidence in a criminal case, “we review
the whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict–i.e.,
evidence that is reasonable, credible, and of solid value–such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends. [Citation.] . . .
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient substantial evidence to
support”‘ the jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327,
357.)
        Section 289, subdivision (d) prohibits any person from committing “an act of
sexual penetration” if “the victim is at the time unconscious of the nature of the act and
this is known to the person committing the act or causing the act to be committed.” As
used in this subdivision, a person is “unconscious of the nature of the act” if he or she
“[w]as not aware, knowing, perceiving, or cognizant of the essential characteristics of the
act due to the perpetrator’s fraudulent representation that the sexual penetration served a
professional purpose when it served no professional purpose.” (§ 289, subd. (d)(4).)
Section 243.4, subdivision (c) similarly prohibits any person from touching “an intimate
part of another person for the purpose of sexual arousal, sexual gratification, or sexual

                                              17
abuse” if “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.”
       Carranza asserts that there was insufficient evidence to support his convictions
for sexual penetration and sexual battery by fraud because he did not expressly tell
the victims that his touching of their intimate body parts was for treatment purposes.
However, a similar argument was raised by the defendant and rejected by the appellate
court in People v. Pham (2009) 180 Cal.App.4th 919 (Pham). The defendant in Pham
was a chiropractor who was convicted of sexual battery by fraud for touching the intimate
parts of his female patients while purporting to treat them. Like Carranza, he challenged
the sufficiency of evidence supporting his convictions on the ground he did not expressly
represent that his sexual touching served a professional purpose. (Id. at pp. 924-926.)
       In rejecting such argument, the Court of Appeal in Pham reasoned as follows:
“[The defendant] did not have to deceive his patients in such explicit terms to be guilty of
fraudulent representation under . . . section 243.4, subdivision (c). The statute does not
require an express representation; it simply speaks to the situation where the defendant
‘fraudulently represented that the touching served a professional purpose.’ [Citation.] In
keeping with the statute’s intent to criminalize sexual acts committed under the guise of
professional services, it only makes sense to consider the totality of the defendant’s
conduct–not just his verbal statements–in determining whether he fraudulently
represented the nature of his actions. After all, actions often speak louder than words:
‘A false promise can as easily, perhaps more easily, be implied from conduct as from
language. . . .’ [Citation.]” (Pham, supra, 180 Cal.App.4th at p. 926.) Because the
defendant used his position as a medical professional to disguise his lewd intentions and
continued to give the appearance his actions were medically related during his treatment,
his convictions were supported by substantial evidence. (Id. at pp. 927-928.)
       In this case, there was ample evidence from which the jury reasonably could
conclude that Carranza fraudulently represented to each of the victims that his improper
touching served a professional purpose. Carranza held himself out to be a professional
“sobrador,” or massage therapist, who offered both physical treatment and natural

                                             18
products for bodily health. His office had a waiting room and a separate treatment
room where customers were individually examined and treated by Carranza either on a
massage table or mat. Each of the victims in counts 1, 4, and 6 sought treatment from
Carranza for a specific medical issue―Yolanda, the victim in count 1, for a uterine
problem; Blanca, the victim in count 4, for lower back pain; and A., the victim in count 6,
for back pain and menstrual issues. While purporting to treat the women through
massage therapy, Carranza inappropriately touched them on the breasts, buttocks, and/or
vagina. Although Carranza did not explicitly claim that his touching of their intimate
body parts was for a professional purpose, the women clearly were induced to believe by
his actions and comments that the touching was part of the treatment.
       Considering the totality of the circumstances surrounding Carranza’s treatment of
each victim, the evidence was sufficient to support a finding that Carranza committed
either a sexual penetration or a sexual battery through fraudulent representations. Even
without an express representation that the touching served a professional purpose, the
jury reasonably could have inferred that Carranza misrepresented the true nature of his
actions and misled the victims into believing that his inappropriate touching was part of
his treatment. Carranza’s convictions on counts 1, 4, and 6 were therefore supported by
substantial evidence.

III.   Failure to Give a Unanimity Instruction
       Carranza argues that the trial court had a sua sponte duty to instruct the jury that,
before finding him guilty of the sexual battery charges in counts 3 through 9, the jurors
had to agree unanimously on the act or acts which formed the basis of each conviction.
Carranza asserts that a unanimity instruction was necessary because the jurors reasonably
could have disagreed as to which intimate body part―breasts, buttocks, or vagina―was
unlawfully touched by Carranza in treating each victim. This argument lacks merit.
       A jury verdict in a criminal case must be unanimous, and the jury must agree
unanimously that the defendant is guilty of a specific crime. (People v. Russo (2001) 25
Cal.4th 1124, 1132.) “[W]hen the evidence suggests more than one discrete crime, either


                                             19
the prosecution must elect among the crimes or the court must require the jury to agree on
the same criminal act. [Citations.]” (Ibid.) This requirement of jury unanimity “‘is
intended to eliminate the danger that the defendant will be convicted even though there is
no single offense which all the jurors agree the defendant committed.’ [Citation.]”
(Ibid.) It typically applies to acts that could have been charged as separate offenses.
(People v. Maury (2003) 30 Cal.4th 342, 423.) However, “[a] unanimity instruction is
required only if the jurors could otherwise disagree which act a defendant committed and
yet convict him of the crime charged. [Citation.]” (Ibid.) “‘“[W]here the acts were
substantially identical in nature, so that any juror believing one act took place would
inexorably believe all acts took place, the instruction is not necessary to the jury’s
understanding of the case.”’ [Citations.]” (People v. Champion (1995) 9 Cal.4th 879,
932.)
        It is also well-established that a unanimity instruction is not required where the
case falls within an exception for acts constituting a continuous course of conduct.
(People v. Stankewitz (1990) 51 Cal.3d 72, 100; People v. Crandell (1988) 46 Cal.3d 833,
875; People v. Diedrich (1982) 31 Cal.3d 263, 282.) “The continuous course of conduct
exception arises in two contexts. [Citations.] ‘The first is when the acts are so closely
connected that they form part of one and the same transaction, and thus one offense.
[Citation.] The second is when . . . the statute contemplates a continuous course of
conduct of a series of acts over a period of time. [Citation.]’ [Citation.]” (People v.
Jenkins (1994) 29 Cal.App.4th 287, 299.) The exception applies “when the defendant
offers essentially the same defense to each of the acts, and there is no reasonable basis
for the jury to distinguish between them.” (People v. Stankewitz, supra, at p. 100.)
        The decision in People v. Champion, supra, 9 Cal.4th 879, is instructive on this
issue. The victim in that case testified that the defendant committed two acts of rape. He
raped the victim, left the room, and then returned a few minutes later to rape her again.
(Id. at p. 932.) In rejecting the defendant’s argument that the two separate acts required a
unanimity instruction, the California Supreme Court noted that the defendant presented
no evidence tending to show that he committed one of the rapes but not the other; rather,

                                              20
his defense at trial was that he did not participate in any of the charge crimes. (Ibid.)
The court accordingly concluded that, because “any juror believing that [the defendant]
committed one of the two rapes testified to by [the victim] would inexorably believe
that he also committed the other, the trial court did not err in failing to give a unanimity
instruction.” (Ibid.; see also People v. McIntyre (1981) 115 Cal.App.3d 899, 910 [two
acts of oral copulation occurring within a matter of minutes were part of a single event
for which no unanimity instruction was required].)
       Here, the evidence at trial showed that Carranza touched each victim on multiple
parts of the body during single treatment sessions. Each victim was inappropriately
touched while receiving massage therapy in the back room of Carranza’s office on one
occasion. Carranza’s touching of different intimate body parts, including the breasts,
buttocks, and vagina, occurred within minutes of one another and were part of an
uninterrupted sequence of movements as he purported to treat the victim. Additionally,
Carranza’s defense to each sexual battery count was essentially the same―that he
touched the woman as part of his treatment and not for any specific sexual purpose.
Under such circumstances, Carranza’s acts of touching multiple intimate body parts
while providing treatment were so closely connected in time and space as to form a single
transaction. Because Carranza’s actions constituted a continuous course of conduct as
to each victim, the trial court did not err in failing to give a unanimity instruction.




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                                        DISPOSITION

      The judgment is affirmed.




                                                ZELON, J.

We concur:




      PERLUSS, P. J.



                  
      SEGAL, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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