People v. Franco-Alvarez CA5

INTRODUCTION

On November 17, 2020, 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). Alvarez appealed arguing inter alia that count 4 was a lesser-included offense of count 3, and his conviction on count 4 should therefore be vacated. We agreed, reversed one of the counts for which Alvarez was convicted, and remanded the matter back to the lower court for a full resentencing hearing. We also struck the trial court’s postjudgment no-contact order (§ 1202.05) and remanded the matter for further proceedings on the AIDS testing order (§ 1202.1). (See People v. Franco-Alvarez (Jul. 9, 2025, F082345) [nonpub. opn.] (Franco-Alvarez I).)2 On January 18, 2024, the trial court sentenced Alvarez to a determinate term of eight years, including the middle term of six years on count 4, plus the middle term of two years on count 1. On appeal, Alvarez’s appointed counsel filed a brief pursuant to…