People v. Ortega, 240 Cal. App. 4th 956

Defendant Ortega was charged with forcible sexual penetration (Pen. Code §289(a)(1)(A)); jury acquitted on that charge but convicted him of the lesser included offense assault with intent to commit sexual penetration (§§220, 289).
Victim (Doe) testified Ortega digitally penetrated her vagina against her will; defense undermined credibility and prosecution played a pretext call where Ortega equivocated about whether penetration occurred.
Preliminary hearing testimony was the only source identifying the means of penetration: the testimony implicated Ortega’s fingers as the object used.
Trial court instructed on forcible sexual penetration and several lesser included offenses (attempted penetration, assault with intent, simple battery/assault) but did not instruct sua sponte on sexual battery (§243.4).
Ortega argued on appeal the court erred by failing to instruct on sexual battery as a lesser included offense of forcible sexual penetration; the Court of Appeal considered whether preliminary hearing evidence must be factored into the accusatory-pleading lesser-included analysis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sexual battery is a necessarily included lesser offense of forcible sexual penetration such that the court must instruct sua sponte	People: Under the statutory-elements test, sexual battery is not necessarily included because §289 encompasses penetration by any foreign object, while §243.4 requires physical contact (body part) and is narrower.	Ortega: When preliminary-hearing testimony shows the only means of alleged penetration was defendant’s finger, the accusatory-pleading analysis should incorporate that transcript and sexual battery becomes necessarily included.	Court: Adopted that the preliminary hearing transcript must be considered; where the preliminary evidence limits the means to digital penetration, felony sexual battery is a necessarily included offense and instruction was required.
Whether omission of sexual battery instruction was harmless	People: Jury’s verdicts and rejections of other offenses indicate they would not have convicted of sexual battery; any error is harmless.	Ortega: Jury’s findings do not foreclose sexual battery; reasonable probability jury would have convicted of sexual battery and that would be more favorable (probation eligibility).	Court: Error was prejudicial under People v. Watson; reversal required because reasonable probability of more favorable result (sexual battery) existed.

People v. Birks, 19 Cal.4th 108 (establishes principles on lesser included/offense instruction and mutual fairness)
People v. Breverman, 19 Cal.4th 142 (defendant entitled to sua sponte instructions on any lesser included offense with substantial evidentiary support)
People v. Marshall, 48 Cal.2d 394 (accusatory-pleading test: specific allegations in pleading inform lesser-included analysis)
People v. Lohbauer, 29 Cal.3d 364 (preliminary hearing conduct cannot substitute for notice when mens rea differs)
People v. Lewis, 25 Cal.4th 610 (harmlessness inquiry when omitted lesser-included instruction)
People v. Watson, 46 Cal.2d 818 (standard for prejudice resulting in reversal)