People v. Loeza CA4/3

INTRODUCTION

A jury found Eduardo Ortiz Loeza guilty under count 1 of attempted forcible oral copulation (Pen. Code, §§ 288a, subd. (c)(2), 664, subd. (a)), under count 2 of sexual battery by restraint (id., § 243.4, subd. (a)), and under count 3 of misdemeanor 1 simple assault (id., § 242) as a lesser included offense of the charged offense of assault of a minor with the intent to commit a sexual offense (id., § 220, subd. (a)(2)). The trial court sentenced Loeza to a term of three years on count 2, with a concurrent term of three years on count 1, and suspended imposition of sentence on count 3. Loeza argues his conviction for simple assault must be reversed because it is a lesser included offense of sexual battery by restraint, for which he was convicted under count 2. He also argues he should receive one more day of presentence custody credit because Penal Code section 4019, subdivision (f) (section 4019(f)) must be interpreted as authorizing one day of presentence conduct credit for each day of actual presentence custody. We conclude, under the evidence presented, misdemeanor simple assault is a lesser included offense of sexual battery by restraint and, therefore, Loeza’s…