People v. Lazaro CA2/5

INTRODUCTION

A jury found defendant and appellant Ramiro Lazaro (defendant) guilty of forcible oral copulation and forcible sexual penetration of a child under the age of 14 who was seven or more years younger than defendant, as well as attempted forcible rape. On appeal, defendant contends that the trial court committed prejudicial error when it failed sua sponte to instruct the jury on what defendant claims are the lesser included offenses of nonforcible oral copulation and nonforcible sexual penetration of a child under the age of 14 who was more than 10 years younger than defendant. He also contends that he received ineffective assistance of counsel and that the trial court imposed unauthorized restitution and parol revocation fines. We hold that nonforcible oral copulation of a child and nonforcible sexual penetration of a child are not lesser included offenses to forcible oral copulation of a child and forcible sexual penetration of a child. Moreover, even if the trial court erred as claimed when it failed to instruct the jury on the purported lesser included offenses, defendant was not prejudiced by that error. And, because the trial court did not commit prejudicial error…