People v. Franco-Alvarez CA5

California Court of Appeal Jul 10, 2025 No. F087552Unpublished

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Holding. The court recalled the remittitur from a prior appeal to correct a clerical error in its disposition, which had erroneously ordered the reversal of a greater offense rather than the lesser-included offense as intended. Consequently, the current appeal challenging the resentencing proceedings resulting from that error was dismissed as moot.

Issues

Whether the appellate court has the authority to recall a remittitur to correct a clerical error in its prior disposition.
Whether the current appeal is rendered moot by the recall of the remittitur in the prior case.

Disposition. dismissed

Quotations verified verbatim against the opinion

“A reviewing court has the inherent power to recall a remittitur on its own motion and for “good cause.””

“There is a clerical error in this court’s disposition from Alvarez’s prior appeal (Franco-Alvarez I).”

“Accordingly, the instant appeal is moot and is dismissed.”

Filed 7/10/25 P. v. Franco-Alvarez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F087552 Plaintiff and Respondent, (Super. Ct. No. F19907870) v.

VICTOR MANUEL FRANCO-ALVAREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Peña, J. and Snauffer, J.

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 People v. Wende (1979) 25 Cal.3d 436 (Wende). Appellate counsel attached a declaration to his brief stating that he advised Alvarez of his right to file a supplemental brief with this court. By letter dated October 7, 2024, this court also sent Alvarez a letter advising him of his right to file a brief of his own with this court. We did not receive a response from him.

People v. Franco-Alvarez CA5

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INTRODUCTION

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STATEMENT OF FACTS

DISCUSSION

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