People v. Nerio CA2/4

INTRODUCTION

Defendant Francisco Nerio appeals from the judgment entered following his conviction by jury on 17 counts of sexual intercourse or sodomy with a child, oral copulation or sexual penetration of a child, and lewd acts upon a child. He contends the trial court erred in failing to instruct the jury on lesser included offenses of attempted sexual intercourse and attempted sodomy. Defendant further raises issues with the calculation of his presentence custody credit and the amounts of two fees imposed by the trial court. We find no error as to the jury instructions and therefore affirm the convictions. However, we agree—as ultimately conceded by both parties—that defendant should be awarded one additional day of presentence custody credit and the amount of the facilities assessment imposed should be reduced to $510. We accordingly remand to the trial court with directions to correct the abstract of judgment.

PROCEDURAL HISTORY

The Los Angeles County District Attorney (the People) filed an amended information on August 24, 2015 charging defendant with six counts of sexual intercourse or sodomy with a child ten years of age or younger (Pen. Code, § 288.7, subd. (a)…