People v. Reed CA3

DISCUSSION

I The Trial Court Properly Did Not Instruct On The Lesser Included Offenses Of Attempted Lewd Acts And Attempted Oral Copulation Defendant contends the trial court erred in failing to sua sponte instruct on the lesser included offenses of attempted lewd acts and attempted oral copulation. His reasoning is as follows: Leaving aside four counts that were based on specific testimony, the remaining sex acts were based on the generic testimony that the victim

2 masturbated him once a week, she orally copulated him once a week, and they kissed hundreds of times. But the victim also testified there were times when defendant would initiate sexual contact, and she would “stand up for [her]self,” or defendant would initiate sexual contact in her bedroom, and she stopped him by telling him that her bedroom was her “sanctuary.” Defendant therefore argues that “a reasonable juror could have concluded that . . . no completed sex act occurred and that only an attempted sexual act occurred.” The problem with defendant’s argument is that the court is required to instruct on lesser included offenses only when there is substantial evidence the jury could conclude that the lesser…