Stewart

The People appeal an order granting James Stewart’s second new trial motion after the jury convicted him of sexually molesting his daughter. The order was based on three grounds, including inadequate assistance of counsel. Ordinarily, a trial court may not entertain a second new trial motion. In this case, however, we conclude a second motion on the ground of inadequacy of counsel was permitted. We reverse and remand, however, because the trial court committed other errors in granting the motion.

Facts

Defendant was charged and convicted of four violations of Penal Code section 288, subdivision (b) (lewd or lascivious acts upon a child under age 14 by force). The alleged acts of sexual molestation involved his 10-year-old daughter.

Defendant, by his trial counsel, moved for a new trial on the sole ground the jury’s verdict was contrary to the evidence. The court denied the motion. Sentencing was deferred for 90 days to permit a diagnostic evaluation of defendant and an investigation of his oldest daughter’s claim that she too had been molested by him.

Prior to judgment (see Pen. Code, § 1182), defendant substituted in new counsel who brought a second new trial motion…