What is the standard of review applied to a failure by the trial court to instruct on an assertedly lesser included offense?

"'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense. [Citation.] A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, "'that is, evidence that a reasonable jury could find persuasive"' [citation], which, if accepted, "'would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser" [citation].' [Citation.] '[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. [Citations.]' [Citation.]" (People v. Licas (2007) 41 Cal.4th 362, 366.)

Assuming for the purpose of this argument only that section 289, subdivision (h) is a lesser included offense to section 288.7, subdivision (b), there was insufficient evidence to require the additional instruction. Defendant did not object to the omission of the instruction at trial. A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence that could absolve defendant from guilt of the greater offense but not the lesser offense. "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.]" (People v. Breverman (1998) 19 Cal.4th 142, 162, abrogated on other grounds by amendment of

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