People v. Ortega

Opinion

GROVER, J.

Defendant Andrew Ortega was charged with sexual penetration by force. A jury found defendant not guilty of the charged offense but guilty of the lesser included offense of assault with intent to commit sexual penetration by force. Defendant argues that sexual battery is also a lesser included offense of forcible sexual penetration and that the trial court erred by failing to instruct sua sponte on sexual battery. We will conclude that evidence received at the preliminary hearing to support the information should have been considered in determining whether forcible sexual…