Can a defendant be convicted of both a sexual assault and a lesser sex offence based on the commission of a single act?

A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense based on the commission of a single act. (People v. Pearson (1986) 42 Cal.3d 351, 355 (Pearson), disapproved in part on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 651.) "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)

Although both the "facts actually alleged" and elements tests are used to determine if a defendant received sufficient notice so as to allow his conviction for an uncharged lesser offense, only the statutory elements test applies to determining if he may be convicted of multiple charged crimes. (People v. Reed (2006) 38 Cal.4th 1224, 1229-1230.) We compare the elements of the offenses of sexual act with a child age 10 or younger (counts 3 and 4) as stated in section 288.7, subdivision (b)

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