Melonzi

MEMORANDUM **

Sue Hubbard appeals the district court’s final order granting Frank Melonzi’s petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 . We review de novo the district court’s order granting the writ, Parle v. Runnels, 387 F.3d 1030, 1034 (9th Cir.2004), and we vacate and remand.

On March 24, 1997, after a bench trial, Melonzi was convicted of four counts: two counts of lewd and lascivious acts against a child in violation of California Penal Code section 288(a), one count of lewd and lascivious acts by force against a child in violation of California Penal Code section 288(b)(1), and one count of continuous sexual abuse against a child in violation of California Penal Code section 288.5. He was acquitted on a charge of rape in violation of California Penal Code section 261(a)(2). Melonzi was granted a second trial on the basis of ineffective assistance of counsel.

At the second trial, the prosecution charged Melonzi with the same counts, including the rape charge for which he had been previously acquitted. The trial court dismissed the rape charge, but evidence of the rape was introduced during the testimony of Alicia B., one of Melonzi’s…