P. v. Esco
A jury convicted appellant Freddie Black Esco, Sr., of attempted second degree robbery (Pen. Code, §§ 211, 664),[1] second degree burglary (§§ 459, 460), and petty theft with a prior theft conviction (§§ 484, 666). The court sentenced appellant to state prison.
On appeal, appellant contends: (1) the court erred by denying his motion to impeach a prosecution witness with preliminary hearing testimony pursuant to Evidence Code section 1235; (2) the court failed to instruct the jury with CALCRIM No. 3519, the instruction used when greater and lesser included offenses are separately charged; and (3) he is entitled to 42 days of additional presentence conduct credits.
We reverse appellant’s petty theft conviction (§ 484, 666) because it is a lesser included offense of attempted robbery (§§ 211, 664). As modified, we affirm the judgment.
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