Macias

A jury found defendant guilty of using a minor for purposes of posing for sexual conduct. Defendant claims the trial court prejudicially erred by failing to instruct the jury sua sponte on the lesser uncharged offense of unauthorized invasion of privacy. We conclude the trial court had no duty to instruct on unauthorized invasion of privacy because it is not a lesser included offense of using a minor for purposes of posing for sexual conduct under the elements test or the accusatory pleading test. We, therefore, affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Raquel C. and defendant began living together in October 2012. They had two children together, and Raquel had three other minor children of her own, one of them being L., age 13. Four of the children lived in the household, and Raquel was pregnant with the fifth.

In March 2015, defendant moved out of the home. When defendant decided he was not going to move back into the household, on March 19, 2015, Raquel went through the house gathering defendant's belongings. While searching the shelving near defendant's storage area, Raquel found a box containing a "Nabi Jr." children's tablet computer which was one of two…