What is the legal test for a failure to instruct a jury on a lesser included offence?

Courts review the failure to give a lesser included offense instruction under the de novo standard of review. (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) "[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in evidence. . . . [T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. 'Substantial evidence' in this context is 'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]' that the lesser offense, but not the greater, was committed." (People v. Breverman (1998) 19 Cal.4th 142, 162, original italics.) Finally, "in deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (Ibid.) The court has no obligation to give an instruction on a lesser included offense when there is no evidence that the offense was less than that charged. (Id. at p. 162.)

B. The Lesser Included Offense of Attempted Lewd Act on a Child Was Not Required in This Case

"An attempt to commit a crime . . . requires only a specific intent to commit it and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime." (People v. Imler (1992) 9 Cal.App.4th 1178, 1181.)

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