Justice McDonald is exactly, exactly right. And makes the argument cogently, intellectually, and with precision. Giving a massage on a conscious person that starts consensually but then goes beyond the bounds of a legtimate massage constitutes neither "rape by a foreign object on an unconscious person" nor "oral copulation on an unconscious person" when the person remains conscious and demonstrably able to object.
It's battery. It might be a wide variety of other things. But it's not the defined form of rape under either Section 288 and 289 of the Penal Code.
Justice McDonald rightly notes that the issue is actually closer than you might initially think. But he's nonetheless right that, in the end, it's neither of the offenses for which the defendant here was convicted.
So Judge Hammes (down here in San Diego) gets reversed. And properly so.
That said, I ain't getting a massage from David Stuedemann anytime soon. Ejther at the Kobe Swap Meet or anywhere else.
Keep it above the towel, dude.