What is the test for a jury to convict a defendant of lewd acts on a child?

Bodkin next argues the trial court erred by failing to instruct the jury on the lesser offense of lewd acts on a child as defined in section 288, subdivision (a). A trial court must instruct on the general principles of law relevant to the issues raised by the evidence, including instructions on lesser included offenses when the evidence suggests all of the elements of the charged offense are not present and there is substantial evidence to support the lesser included offense. (People v. Breverman (1998) 19 Cal.4th 142, 154.) An uncharged offense is included in a greater charged offense if the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test).¹ (People v. Parson (2008) 44 Ca1.4th 332, 349.) We apply the independent standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 733.)

Section 288, subdivision (a), provides, "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." Section 288, subdivision (a), is a specific intent crime. (People v. Warner (2006) 39 Cal.4th 548, 556.) It requires the specific intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child. (People v. Raley (1992) 2 Cal.4th 870, 907.)

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