What are the elements of the crime of sexual battery by fraudulent representation?

touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse[.]" ( Pen.Code, 243.4, subd. (e)(1).) In comparing that offense with the crime of sexual battery by fraud, it is clear both offenses "have two identical elements: (1) the defendant touches an intimate part of the victim and (2) the defendant acts for the specific purpose of sexual arousal or gratification. The difference between the two crimes is that [misdemeanor] sexual battery requires a touching against the will of the victim, whereas sexual battery by fraudulent representation requires the victim to be unconscious' of the nature of the touching because the defendant fraudulently represents that the touching serves a professional purpose." ( People v. Babaali (2009) 171 Cal.App.4th 982, 995, 90 Cal.Rptr.3d 278 ( Babaali ).) There is a split of authority over whether "this difference means that [misdemeanor] sexual battery is not a lesser included offense of sexual battery by fraudulent representation." ( Ibid . )