Attempted sexual intercourse or sodomy with a child 10 years old or younger, and attempted oral copulation or sexual penetration with a child 10 years old or younger are not lesser included offenses of the completed offenses. Mendoza was convicted of sexual offenses committed against a seven-year-old girl, including two counts of sexual intercourse or sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); counts 1 and 2) and oral copulation or sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd. (b); count 3). On appeal he claimed the trial court erred by not instructing the jury on the lesser included offenses of attempted sexual intercourse with a child 10 years of age or younger, attempted sodomy with a child 10 years of age or younger, and attempted oral copulation with a child 10 years of age or younger. Held: Affirmed. A trial court has a sua sponte duty to instruct on lesser included offenses whenever there is substantial evidence that raises a question as to whether all of the elements of the charged offense are present and substantial evidence that the defendant is guilty only of the lesser offense. A lesser offense is necessarily included if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense. In People v. Bailey (2012) 54 Cal.4th 740, the court concluded that attempts are not lesser included offenses of completed crimes when the completed crime requires general intent, because attempt requires specific intent. Because attempted sexual intercourse, attempted sodomy, and attempted oral copulation with a child 10 years of age or younger all require specific intent, while the completed offenses require only a general intent, the attempted crimes are not lesser included offenses of the completed crimes under the elements test.
The attempted sexual offenses were not lesser included offenses under the pleading test. Based on a review of the language of the accusatory pleading, the attempted sexual offenses were not lesser included offenses of the charged crimes. Counts 1 and 2 alleged different dates of the charged crimes, but did not allege that Mendoza had a specific intent to have sexual intercourse or sodomy with a child 10 years of age or younger. Count 3, charging oral copulation of a child 10 years of age or younger, referenced Penal Code section 289, which defines sexual penetration as including a specific intent element, but this does not pertain to oral copulation. Thus, under the pleading test, attempting the offenses charged was not necessarily included within the completed offenses.
Substantial evidence supported appellant’s conviction for possessing child pornography despite the absence of the pornographic photographs that he took. The minor’s mother reported to police that she found sexually explicit photographs of her daughter and appellant on appellant’s cell phone. In anger, the mother deleted the photographs. Mendoza claimed there was insufficient evidence he possessed child pornography (Pen. Code, § 311.11, subd. (a)) because the photographs were not found in a storage medium. Under Evidence Code section 411, the direct evidence of one witness is sufficient proof of a fact unless additional evidence is required by statute. Thus, the mother’s testimony regarding the explicit sexual images was sufficient to support the conviction. Additionally, the minor remembered that Mendoza took her picture with his cell phone during an encounter and Mendoza confessed to taking a picture of the minor.