P. v. Arredondo

Filed 8/21/06 P. v. Arredondo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Reversed.

Grover Trask, District Attorney and Matt Reilly, Deputy District Attorney, for Plaintiff and Appellant.

Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Respondent.

1. Introduction

A jury found defendant Joseph Mario Arredondo, Jr., guilty of eight counts of unlawful sexual intercourse with a minor more than three years younger than him (Pen. Code, § 261.5, subd. (c)),^[1] three counts of unlawful oral copulation with a minor (§ 288a, subd. (b)(1)), three counts of unlawful penetration of a minor with a foreign object (§ 289, subd. (h)), and one count of unlawful sexual intercourse with a minor under 16 years of age by a person over 21 years of age (§ 261.5, subd. (d)).

After the jury rendered its verdict, defendant discharged his trial attorney, Alexander Petale, and retained David Macher. Defendant subsequently filed a motion for new trial on various grounds, including ineffective assistance of counsel. The court granted defendant's motion and then affirmed its ruling upon People's motion for reconsideration. On appeal, the People argue that the court misapplied the two-prong analysis for determining whether defendant received constitutionally defective representation. The People specifically contend that the court granted the motion without determining that Petale's incompetence prejudiced defendant's trial. The People alternatively argue that the court abused its discretion in finding that Petale's performance was inadequate.

We agree with the People that the trial court granted defendant's motion although defendant had not satisfied his burden of establishing prejudice. We reverse the judgment.

2. Factual and Procedural History

Defendant, who was married to Christiana, was the youth pastor at the New Beginnings Church in Corona. The youth group met on Sunday mornings and Tuesday nights. The victims, Andrea Y. and Jessica R., were members of the youth group.

Jessica first met defendant when she was 14 years old, during the summer before her sophomore year of high school. Defendant counseled her while her parents were going through a divorce. Jessica's mother also wanted her to receive counseling because of her sexual activity.

During a retreat the following summer in 2002, Jessica and defendant spent a significant amount of time together and began developing a mutual attraction for each other. After the retreat, they continued to spend time with each other outside of church functions.

On September 11, 2002, defendant called Jessica and invited her over to his house. After she arrived, they went into defendant's bedroom, where they engaged in vaginal intercourse. They again had sex at defendant's house about two weeks later. After the second time, they met together for sex almost once a week. They sometimes met at a motel to be alone because defendant and his wife shared their home with other roommates. During one occasion on June 11, 2002, defendant rented a room at the Motel 6 in Corona, where the two engaged in various sex acts, including anal and vaginal intercourse. During another occasion on February 12, 2003, at the same Motel 6, defendant and Jessica had oral sex and vaginal intercourse.

Defendant also began counseling Andrea early in her high school years concerning her relationship with her mother and premarital sex. Their conversations over the phone and in person became more frequent. Defendant regularly met with Andrea and Jessica after services on Tuesday nights. Although defendant taught the students to abstain from premarital sex, he privately told the girls that if he were not married, they could come to him for sex.

On April 26, 2003, a couple of days before defendant's birthday, Andrea and Jessica invited defendant over to Andrea's house to give him a birthday gift. The gift included a pair of handcuffs engraved with their initials â€