Rubalcava

Antonio Rubalcava appeals from a judgment of conviction rendered against him for 10 counts of violating section 288, subdivision (b) (Pen. Code.)* for lewd or lascivious acts with 2 children under the age of 14 years.

He raises three issues on appeal: (1) whether his right to confrontation was violated when the trial court permitted the victims’ testimony at the preliminary hearing to be read at trial; (2) whether his right to counsel was violated when the trial court clarified the reasonable doubt instruction in the absence of counsel; and (3) whether he was denied effective assistance of counsel. For the reasons set forth below, we reverse the judgment. Because we conclude Rubalcava’s right to counsel was violated, we do not address the remaining issues.

I. Statement of Facts and Proceedings Below

Appellant does not challenge the sufficiency of the evidence thus we relate only those facts pertinent to the dispositive issue. Rubalcava was charged by information of 15 counts of lewd or lascivious acts upon his two nieces. One of these girls was approximately seven and the other six at the time of the alleged acts. Upon the motion of the People, five counts were…