What is the test for determining whether a defendant is guilty only of a lesser included crime?

if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense. [Citations.] An uncharged offense is included in a greater charged offense if either (1) the greater offense, as defined by statute, cannot be committed without also committing the lesser (the elements test), or (2) the language of the accusatory pleading encompasses all the elements of the lesser offense (the accusatory pleading test). [Citations.]" (People v. Parson (2008) 44 Cal.4th 332, 348-349, original italics.) The trial court need not instruct the jury on lesser included offenses "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)

Defendant argues, and respondent disputes, that misdemeanor sexual battery and misdemeanor battery are both necessarily included offenses of sexual penetration of an unconscious person ( 289, subd. (d)) and sexual penetration of an intoxicated person ( 289, subd. (e)). Even assuming that both uncharged crimes are lesser included offenses of the charged crimes, the trial court was under no obligation to instruct on the uncharged crimes, because there was no substantial evidence supporting a jury determination that defendant was in fact guilty only of the uncharged crimes. (People v. Parson, supra, 44 Cal.4th at p. 350.)