In a sexual assault case, what is the test for admitting to count 3 of the sexual assault charge?

Additionally, we reject the contention that the admission to count 3 was improper because count 3 was a necessarily included offense of count 2. In People v. Ortega (1998) 19 Cal.4th 686, 692, the court noted an offense is necessarily included within a charged offense if under the statutory definition of the charged offense it cannot be committed without committing the lesser offense, or if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed. We find that count 3 is not a necessarily included offense of count 2 because it is possible to commit count 2 without committing count 3, and because count 2 is alleged in the language of the statute and does not specify that a violation of count 2 would constitute the commission of count 3.