Where defendant was charged with using a minor for purposes of posing for sexual conduct, trial court was not required to give instruction on unauthorized invasion of privacy because it is not a lesser included offense. A jury found Macias guilty of using a minor for purposes of posing for sexual conduct (Pen. Code, § 311.4, subd. (c)) when his teen stepdaughter found a tablet with a tampered camera containing videos of her in the shower. Macias appealed, arguing that the trial court prejudicially erred by failing to instruct the jury sua sponte on the offense of unauthorized invasion of privacy (Pen. Code, § 647, subd. (j)(3)(A)) as a lesser included offense based on the accusatory pleading test. Held: Affirmed. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. A person is guilty of violating section 311.4, subdivision (c) if he or she knowingly promotes, employs, induces, or coerces a minor to engage in posing or modeling for purposes of preparing an image involving sexual conduct. Misdemeanor invasion of privacy criminalizes the use of a concealed camera of any type to secretly videotape, film, or photograph a person who may be in a state of full or partial undress without their consent or knowledge in an area in which that person has a reasonable expectation of privacy. Although the information in this case did not include language describing the invasion of privacy offense, Macias argued that the misdemeanor offense is necessarily included within the greater offense because the preliminary hearing evidence supplied the missing elements. (See People v. Ortega (2015) 240 Cal.App.4th 956.) The Court of Appeal declined to adopt Ortega’s expanded accusatory pleading test because it is contrary to Supreme Court precedent in People v. Montoya (2004) 33 Cal.4th 1031, which held that, under the accusatory pleading test, a trial court is only required to examine the accusatory pleading to assess whether a charged offense includes a lesser offense.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A151198.PDF