P v. FERNANDO

Filed 4/13/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Ruth Ann Kwan, Judge. Reversed.

Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

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Fernando Lopez appeals from the judgment entered following a jury trial in which he was convicted of four counts of committing a lewd act on a 14- or 15-year-old child who was at least 10 years younger than defendant (counts 1–4) and sexual battery by restraint (count 5), in each of which the jury further found that the victim was particularly vulnerable and defendant exploited a position of trust and planned the conduct; child molesting (counts 6 and 8); and sexual battery (count 7). (Pen. Code, §§ 288, subd. (c)(1); 243.4, subd. (a); 647.6, subd. (a); 243.4, subd. (e)(1); all further undesignated section references are to the Penal Code.) Defendant contends that the prosecutor committed prejudicial misconduct in closing argument and that the jury received erroneous instructions. We agree that there was prejudicial misconduct and on this basis reverse without discussing the instructional issue.[1]

BACKGROUND

Defendant, a Catholic priest, was assigned to a Los Angeles parish in 2001. The parishioners were mostly low-income Hispanics. Each parish priest had his own living quarters, including a bedroom, bathroom, and sitting room. Church policy prohibited priests from allowing minors in their private quarters or vacationing with them. The policy also discouraged priests from having minors ride with them in cars. Defendant attended a meeting at which these policies were discussed, and defendant's pastor thought that defendant understood them.

Gerardo V. testified (regarding counts 1 through 4) that he was 13 years old when he first met defendant in confession. Afterward, defendant came to Gerardo's home regularly to visit Gerardo's ill grandmother. Defendant once drove Gerardo to get some food for his grandmother. While the two were in the car, defendant masturbated Gerardo. On another occasion, when Gerardo asked to confess, defendant took Gerardo to defendant's quarters, where he masturbated and orally copulated Gerardo. Defendant also placed Gerardo's hand on defendant's penis over defendant's clothing. While there, Gerardo saw a piano in defendant's quarters. On another trip to buy food for Gerardo's grandmother, defendant masturbated Gerardo, and on a later similar trip, defendant masturbated and orally copulated Gerardo. And on an occasion while defendant was driving Gerardo to the hospital to visit his grandmother, defendant placed his hand inside Gerardo's pants and touched his penis.

Luis B. testified (regarding count 5) that when he was 19 or 20, he was in church to speak to a priest when defendant told him to go to the church office. Luis did so and defendant took Luis to defendant's bedroom where defendant removed his own pants and placed Luis's hand on defendant's penis. Defendant then helped Luis remove Luis's pants and touched Luis's penis. Defendant masturbated himself. Then defendant told Luis to go to church and say 10 â€