People v. Franco-Alvarez CA5

INTRODUCTION

Appellant Victor Manuel Franco-Alvarez (Alvarez) was convicted by jury of committing a lewd act upon a child under the age of 14 (Pen. Code,1 § 288, subd. (a), count 1), sexual penetration by force or duress on a child under the age of 14 (§ 289, subd. (a)(1)(B), count 3), and sexual penetration by force or duress (§ 289, subd. (a)(1)(A), count 4). He was sentenced to an aggregate term of 16 years in state prison. Alvarez raises the following issues on appeal: (1) his conviction on count 4 for sexual penetration by force or duress (§ 289, subd. (a)(1)(A)) must be reversed because it is a lesser included offense of the underlying conduct supporting his conviction on count 3; (2) he is entitled to resentencing following the enactment of Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518), which amends section 654 to remove the requirement that the trial court impose the longest potential term of imprisonment (Stats. 2021, ch. 441, § 1); (3) there is insufficient evidence of duress to support his conviction on counts 3 and 4; (4) the trial court erred in failing to instruct the jury, sua sponte, on sexual penetration of a child under section 289,…