Does a defendant have to be prepared to defend against any lesser offense necessarily included in that with which they are charged?

defendant, for due process purposes, that he must also be prepared to defend against any lesser offense necessarily included therein, even if the lesser offense is not expressly set forth in the indictment or information. [Citations.] The statutory law of California explicitly provides that the defendant may be found guilty 'of any offense, the commission of which is necessarily included in that with which he is charged.' ( 1159, italics added.)" (People v. Birks, supra, 19 Cal.4th at p. 118.)³ Under this test, non-forcible oral copulation and non-forcible sodomy were necessarily included lesser offenses of the first and fourth counts and if there was substantial evidence that defendant committed only the lesser, the jury should have been so instructed.