P. v. Cabrera
Defendant Hugo Eliseo Cabrera appeals from the judgment entered following a jury trial in which he was convicted of two counts of aggravated sexual assault on a child under the age of 14 (Pen. Code, § 269, subd. (a); undesignated statutory references are to the Penal Code), one of which was based upon rape in violation of section 261, subdivision (a)(2), and the other upon sexual penetration, in violation of section 289, subdivision (a); one count of committing a lewd act on a child (§ 288, subd. (a)); and one count of sexual penetration of a child under the age of 14 (§ 289, subd. (j)). Defendant contends that the evidence was insufficient to support his convictions of aggravated sexual assault on a child under the age of 14 and that the trial court erred by failing to give a unanimity instruction. We agree with defendant’s sufficiency of evidence contention and reduce his convictions in the those counts and strike the resulting duplicative count 4, which the parties agree was based upon the same act of penetration as count 2.
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