P.

DISCUSSION

Case contends that attempted oral copulation with a person under the age of 18 (§§ 288a, subd. (b)(1), 664) is not a lesser included offense of attempted forcible oral copulation of a minor over the age of 14 years (§§ 288a, subd. (c)(2)(C), 664) and that the court should not have instructed the jury on the lesser offense. An offense is a lesser included offense of another if the greater offense cannot be committed without also committing the lesser offense. (People v. Sanders (2012) 55 Cal.4th 731, 737.) This is commonly called the elements test. (Ibid.)

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

2 Here, the elements of the lesser offense of attempted oral copulation of a person under the age of 18 are that: (1) he or she attempted to participate in an act of oral copulation with another person; and (2) the other person was under the age of 18 when the act was attempted. (§§ 288a, subd. (b)(1), 664; CALCRIM No. 1082.) The greater offense, attempted forcible oral copulation of a minor over the age of 14, requires that (1) the defendant attempt to commit an act of oral copulation upon a minor who was 14 years old or older;…