What is the test for reversing a conviction in a sexual assault case?

"California law has long provided that even absent a request . . . a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112.) However, "'a defendant may not invoke a trial court's failure to instruct on a lesser included offense as a basis on which to reverse a conviction when, for tactical reasons, the defendant persuades a trial

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