Filed 1/21/15 P. v. Gomez CA2/6



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                2d Crim. No. B251602
                                                                        (Super. Ct. No. BA319474-01)
     Plaintiff and Respondent,                                              (Los Angeles County)

v.

ANTONIO GOMEZ,

     Defendant and Appellant.



                   Antonio Gomez, a middle school teacher, appeals from the judgment
entered after a jury convicted him of six counts of lewd conduct on a child under the age
                                                                        1
of 14 years (counts 1-6; Pen. Code, § 288, subd. (a)) and six counts of lewd act on a
child 14 to 15 years of age (counts 7-12; § 288, subd. (c)(1)). On counts 2 through 6, the
jury found that appellant had substantial conduct with the victim within the meaning of
section 1203.066, subdivision (a)(8). The trial court denied probation and sentenced
appellant to 17 years 4 months state prison. We affirm.




1
    All statutory references are to the Penal Code unless otherwise stated.
                                     Statement of Facts
              Appellant, a physical education teacher at Robert Luis Stevenson Middle
School (Stevenson), victimized two female students in 2005 and 2006. The modus
operandi was the same. Appellant befriended the victims, promised to look out for them,
and changed the relationship from teacher-student to teacher-lover.
Counts 1-8; E. O.
              E. O., born May 1992, attended Stevenson from sixth to eighth grade.
Appellant was her physical education teacher. In February 2006, appellant took E. to a
room next to the gym weight room, told her to bend over, and touched her butt and thighs
on top of her clothing. After he finished, he told E. to leave so no one would see them
together.
              A few days later, appellant called E. to the weight room and had her grab
his erect penis on top of his clothing.
              In March 2006, appellant summoned E. to the P.E. office and told her to
"give him head." Appellant ejaculated into his hand, asked if she liked it, and said it was
"normal for people to do." Appellant had E. orally copulate him on other occasions.
              On May 12, 2006, appellant took E. to a motel and had intercourse with
her. Appellant drove E. home and dropped her off two blocks from her house.
              A few weeks before graduation, appellant pulled E. out of class and had
sexual intercourse with her in the faculty restroom.
              After E. graduated, appellant said that he would help her buy a computer if
she helped him with grading. Appellant had E.'s mom sign a consent slip and told the
school principal that E. was his goddaughter. E. visited appellant several times without
checking in at the school front office. On one occasion, the school security guard caught
them together and ordered E. to leave.
              In April 2006, appellant began calling E. late at night, sometimes drunk.
Appellant said that he loved her, that he wanted to be with her, and that she should learn
about sex from him.



                                             2
               E. grew tired of the calls and "didn't want to do it anymore." She told her
mother and friend/classmate, Karina N., about appellant. When appellant flirted with two
other students, G. G. and Griselda G., E. told them that she had sex with appellant.
               On February 17, 2007, E. reported the sexual abuse to the police. While at
the police station, E. phoned appellant and said she had agreed to take a sexual assault
exam. Appellant tried to dissuade her and said "it's against the law for them to . . . do the
examination."
               On February 26, 2007, Dr. Lynne Ticson, a pediatrician, performed the
sexual assault exam. E. reported acts of oral copulation and vaginal intercourse and tears
on her hymen consistent with vaginal penile penetration. On February 28, 2007, E. told
police detectives about four incidents of oral copulation and two incidents of sexual
intercourse.
               After the police report was filed, appellant's parents, Malaquias Gomez and
Norma Gomez , met with E. and E.'s mom (Maria O.) and offered to pay for E.'s college
education if E. "dropped" the charges. Appellant's former attorney, Seymour Amster,
interviewed appellant's parents about the meetings with E.'s mother and E. Amster also
met with Maria and spoke to E. on the telephone.
               Appellant retained new counsel and defended on the theory that E.'s
accusations were false. Appellant's parents testified that they met with E. and Maria at an
IHOP restaurant and that E. admitted "it was all a lie." Malaquias Gomez said there
were eight meetings with E.'s mother, that Amster knew about the meetings, and that he
and his wife were arrested for offering money to E.
               In rebuttal, the prosecution called Attorney Amster and asked whether
Maria told him that E. was lying about the accusations. Amster responded that Maria
"never said that to me." Amster spoke to E. on the phone and denied that E. ever said
that she was lying.




                                              3
Counts 9 -12; G. G.
              G. G., born April 1991, attended Stevenson with her older sister Griselda
G. When G. was in the sixth grade, Griselda introduced her to appellant. Appellant
asked if she was a virgin and told her not to have a boyfriend. On three occasions,
appellant "pulled" G. out of a math class to help grade papers. School security guards
warned G. to stay away from appellant and that he was married.
              In May 2005, appellant kissed G. and touched her breasts on top of her
clothing. A few days later, appellant kissed her and put his tongue in her mouth.
              In June, G. went to Knott's Berry Farm on a school graduation trip.
Appellant asked her to go on the amusement rides. During the log ride, appellant kissed
G. on the neck and touched her breasts. On the bus ride back home, appellant kissed G..
Uncharged Acts
              When Griselda G., G.'s sister, was in the sixth grade, appellant asked
Griselda if she was a virgin and told her to "stay pure." Appellant "pulled" Griselda out
of class several times to help do "locker work."
              Griselda believed appellant would marry her when she turned 18. In high
school, appellant asked her to write a love letter and show him how much she loved him.
Appellant visited frequently and, during one visit, drove Griselda to a park and tried to
kiss her.
              Appellant also sexually abused Mary F., E.'s friend and classmate at
Stevenson Middle school. Appellant told Mary to lose her virginity to "someone that's
important" such as himself. Appellant called Mary several times and said, "Tell me you
love me." On one occasion, appellant touched her vagina over her clothing. On another
occasion, he kissed her on the cheek.
              Karina N. testified that appellant touched her on the buttocks at school.
Karina was shocked, tried to avoid appellant, and stopped talking to him. After E.'s
mother confronted appellant about E.'s sexual abuse, appellant called Karina and left
voicemails. Appellant kept calling. Karina decided to answer one of the calls and used
the "record" option on her cell phone to record the call. During the call, appellant


                                             4
admitted that he had feelings for E. After Karina told E. about the call, the police made a
copy of the phone recording.
                                    Recorded Phone Call
              Appellant argues that the trial court erred in admitting the phone recording
pursuant to section 633.5. Although the phone call was surreptitiously recorded, the trial
court found that it was a communication relating to a felony involving violence against a
person with the meaning of section 633.5. We review for abuse of discretion. (People v.
Nazary (2010) 191 Cal.App.4th 727, 746.)
              Subject to certain exceptions, section 632, subdivision (d) provides that
surreptitiously recorded phone calls are inadmissible. Section 633.5 provides that
nothing in section 632 "prohibits one party to a confidential communication from
recording the communication for the purpose of obtaining evidence reasonably believed
to relate to the commission by another party to the communication of . . . any felony
involving violence against the person, or a violation of Section 653m." Our courts "have
examined the relationship between Penal Code sections 632 and 633.5. All have
concluded -- correctly -- that the latter exempts from the former an unconsented
recording made with the requisite reasonable belief although the recording fails to capture
the anticipated evidence [citation] or where the initial purpose of the recording is self-
protection rather than to gather evidence for use in criminal prosecution [citation]."
(Lubetsky v. State Bar (1991) 54 Cal.3d 308, 321.)
              Appellant claims that lewd conduct on a child is not a felony involving
"violence against the person" within the meaning of section 633.5. Section 667.5,
subdivision (c), however, provides that violation of section 288 is a violent felony and a
crime of violence against the person. "The statute's unadorned language indicates the
Legislature intended to impose increased punishment via section 667.5, subdivision (c)
not only for certain felonies which are 'violent' in a physical sense but also for certain
felonies which cause extraordinary psychological or emotional harm. [Citation.] By
adding subdivision (c) to section 288 in 1981 . . . , the Legislature recognized both
subdivisions (a) and (b) violations often cause irreparable psychological and emotional


                                              5
damage to child victims." (People v. Hetherington (1984) 154 Cal.App.3d 1132, 1140;
see also People v. Stephenson (1984) 160 Cal.App.3d 7, 10.)
              The trial court reasonably concluded that the phone recording was
admissible under section 633.5. Section 653m, subdivision (b) provides that making
                                                                       2
repeated phone calls with intent to annoy or harass is a misdemeanor. The purpose of
section 653m is to deter people from making harassing phone calls and to secure an
individual's right to privacy from unwanted intrusion. (People v. Hernandez (1991) 231
Cal.App.3d 1376, 1384.)
              Appellant knew that Karina did not want to talk but continued making calls,
supporting the inference that he intended to annoy or harass. Appellant said as much
                                                                            3
when he told Katrina that he was probably making her feel uncomfortable. The calls
were made after he was accused of sexually molesting E. Based on the timing and
context of the phone call, the evidence supports the finding that the call was made with
the intent to annoy or harass. We reject the argument that the prosecution had to
independently prove intent to harass or annoy. "[S]uch an interpretation would place the
prosecuting authorities at the mercy of the admitted lawbreaker and make the availability
of valuable evidence turn on the lawbreaker's articulation of his own state of mind."
(People v. Ayers (1975) 51 Cal.App.3d 370, 377.)
                             Proposition 8 - Truth in Evidence


2
 Section 653m, subdivision (b) provides: Every person who, with intent to annoy or
harass, makes repeated telephone calls . . . to another person is, whether or not
conversation ensures for making the telephone call . . . , is guilty of a misdemeanor. "
3
  Karina testified that she and E. stopped talking to appellant and "that's when he started
calling and he started leaving voicemail[s]." During the recorded call, appellant said "I
told you guys [i.e., E. and Karina] that if you guys didn't feel comfortable I would leave
you on your own. If you guys didn't call me back, and since you didn't call me back I, I
figured that's what you guys chose. So, I, you know I, I kinda respected that and I kinda
left you guys, you know to work things out on your own. . . . Can you hear me? Is there
something mija [honey: term of endearment]? Do you feel uncomfortable that I called
you? Sounded like, I mean, that it made you feel like, . . . that it feels wrong or
something?"

                                             6
              The phone recording was also admissible under Proposition 8 (Cal. Const.
art. 1, § 28, subd. (f)) which excludes relevant, but unlawfully obtained evidence only if
the exclusion is required by the United States Constitution. (In re Lance W. (1985) 37
Cal.3d 873, 890, 896; see People v. Ratekin (1989) 212 Cal.App.3d 1165, 1169 [section
631 which bars admission of wiretap evidence abrogated by Proposition 8].) Appellant
cites no authority that the Cellular Radio Telephone Privacy Act of 1985 (Stats. 1985 ch.
909), which re-enacted section 632, was intended to abrogate Proposition 8. The 1985
Act declares: "[T]his act is intended to provide a legal recourse to those persons whose
private cellular radio telephone communications have been maliciously invaded by
persons not intended to receive such communications." (West's Cal. Leg. Service (1985)
Stats. 1985 Reg.Sess., ch. 909, p. 164.) The narrow scope of the Legislature's intent is
confirmed by section 632.5, the primary element of the 1985 Act, which discloses no
intent to abrogate Proposition 8.
              The legislative history does not show any legislative intent to annul the
effects of Proposition 8. "We cannot assume that the Legislature understood or intended
that such far-reaching consequences - virtually a legislative repeal of the 'Truth-in-
Evidence' section of Proposition 8 - would follow a[ statutory] amendment so casually
proposed and adopted without opposition." (In re Lance W., supra, 37 Cal.3d at p. 894
[discussion of post-Proposition 8 amendment of section 1538.5.].)
              Nor has appellant cited any authority that the United States Constitution
requires exclusion of the telephone recording. Because Karina did not record the
conversation while acting as a government officer or agent, appellant's rights under the
Fourth Amendment are not implicated. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329,
333.) The Fourth Amendment protects one's oral conversation from the "univited ear,"
unless one of the parties to the conversation consents to the eavesdropping or recording.
(Katz v. United States (1967) 389 U.S. 347, 352 [19 L.Ed.2d 576, 582-583]; People v.
Murphy (1972) 8 Cal.3d 349, 359, fn. 9 ["one party to a telephone conversation may
constitutionally allow another to listen to it"]; People v. Windham (2006) 145
Cal.App.4th 881, 891-892.)


                                              7
                       Child Sexual Abuse Accommodation Syndrome
                Appellant complains that the expert testimony on Child Sexual Abuse
Accommodation Syndrome (CSAAS) was inadmissible and denied him a fair trial.
Appellant forfeited the error by not objecting but claims he was denied effective
assistance of trial counsel.
                At the Evidence Code section 402 hearing, the prosecution argued that E.
and G. did not report the sexual misconduct for a year and that CSAAS testimony was
admissible to explain why the victims did not seek help sooner. The trial court ordered
the prosecution's expert, Dr. Jayme Bernfeld, to testify generally about CSAAS and not
render an opinion specific to the case. The jury was given a CALCRIM 1193 limiting
            4
instruction.


4
 The jury was instructed: "You are about to hear from Dr. Jayme Bernfeld, PhD,
regarding something called child abuse accommodation syndrome. Dr. Bernfeld's
testimony about child sexual abuse accommodation syndrome is not evidence that the
defendant committed any of the crimes charged against him. [¶] You may consider this
evidence only in deciding whether or not E. O's and G. G.'s conduct was not inconsistent
with the conduct of someone who has been molested and in evaluating the believability
of their testimony. The testimony of the expert witness on child sexual abuse
accommodation syndrome is being offered to you and may be considered by you only for
the purpose of understanding and explaining the behavior of one or more of the alleged
victims in this case and not as proof the molestation occurred as to any one or more of the
victims. [¶] So it's being offered for the sole purpose of helping you to understand and
explain the behavior of children as a class generally and to help you understand, if it's
determined by you, to apply to the behavior of the alleged victims in this case and not for
the purpose of proving that the molestation occurred as to any one or more of the victims
in this case."

       At the conclusion of the trial, the jury received a CALJIC 10.64 instruction that
stated: "Evidence has been presented to you concerning child sexual abuse
accommodationsyndrome. This evidence is not received and must not be considered by
you as proof that the alleged victim's molestation claim is true. [¶] Child sexual abuse
accommodation syndrome research is based upon an approach that is completely
different from that which you must take to this case. The syndrome research begins with
the assumption that a molestation has occurred, and seeks to describe and explain
common reactions of children to that experience. As distinguished from that research
approach, you are to presume the defendant innocent. The People have the burden of

                                             8
                 CSAAS evidence addresses a child's common reactions to sexual abuse and
is admissible to disabuse a jury of any myths or misconceptions it might have regarding
those reactions. (People v. Patino (1994) 26 Cal.App.4th 1737, 1744; People v. Housley
(1992) 6 Cal.App.4th 947, 955.) Appellant asserts that the CSAAS evidence was
unnecessary because E. and G. were adults at time of trial and capable of relating their
             5
experiences. Appellant claims that the CSAAS evidence is irrelevant because the
victims consented to a romantic relationship. Consent is irrelevant to the question of
whether section 288 was violated or in determining whether CSAAS evidence should be
admitted. (People v. Millhouse (2003) 109 Cal.App.4th 1612, 1619-1620.) Doctor
Bernfeld stated that CSAAS is "a model for helping us understand the context the child
sexual abuse occurs and . . . [the] reactions of children who live through that experience."
"The model specifically addresses abuse that happened in childhood or adolescen[ce], but
also describes the behavior of those children and adolescents as they reach adulthood. So
we know that people who were abused as children often don't disclose until adulthood
and sometimes not even then,"
                 It is settled that CSAAS evidence may be admitted "to rehabilitate [a]
witness's credibility when the defendant suggests that the child's conduct after the
incident - e.g., a delay in reporting - is inconsistent with his or her testimony claiming
molestation. [Citations.]" (People v. McAlpin (1991) 53 Cal.3d 1289, 1300, fn. omitted.)
E.'s credibility was challenged early in the trial. In opening statement, appellant's trial
attorney told the jury that the People's case was about school girls who had a crush on a
popular teacher. "[A]t some point, they got caught up in saying things about [appellant]
that just weren't true, especially E. This case is really about E."


proving guilt beyond a reasonable doubt. [¶] You should consider the evidence
concerning the syndrome and its effect only for the limited purpose of showing, if it does,
that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent
with her having been molested."
5
 At time of trial, E. was 19 years old and attending college G. was 21 and married with
one child.


                                               9
              Dr. Bernfeld's testimony was properly admitted to explain why sexually
abused children delay reporting and to explain the emotional antecedents of abused
children's seemingly self-impeaching behavior. (People v. Brown (2004) 33 Cal.4th 892,
906; People v. Patino, supra, 26 Cal.App.4th at pp. 1744-1745.) Dr. Bernfeld stated that
one reason for delayed disclosure was that the perpetrator grooms the victim by building
a strong bond. By the time the molestation occurs, the victim "feel[s] like an accomplice
and a co-conspirator rather than a victim."
              Appellant asserts that trial counsel was ineffective because he did not object
to the CSAAS evidence on Evidence Code section 352 grounds. The probative value of
the evidence was significant and assisted the jury in assessing E.'s and G.'s credibility and
reasons for not disclosing the sexual abuse earlier. (See e.g., People v. Brown, supra, 33
Cal.4th at p. 906; People v. Patino, supra, 26 Cal.App.4th at p. 1744.) Appellant did not
suffer ineffective assistance on this issue. (People v. Weaver (2001) 26 Cal.4th 876, 931
[counsel has no duty to make frivolous or futile objections]; People v. Memro (1995) 11
Cal.4th 786, 834 [same].)
              The jury received a CALCRIM 1193 instruction that "[y]ou may consider
[the CSAAS] evidence only in deciding whether or not the children's conduct was not
inconsistent with the conduct of someone who has been molested, and in evaluating the
believability of their testimony." The trial court further instructed that Dr. Bernfeld's
testimony was not evidence that appellant committed any of the charged crimes. It is
presumed that the jury understood and followed the court's instructions. (Weeks v.
Angelone (2000) 528 U.S. 225, 234 [145 L.Ed.2d 727, 737-738]; People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 83.) There is no merit to the argument that the CSAAS
evidence rendered the trial fundamentally unfair or denied appellant due process. (See
e.g., People v. Patino, supra, 26 Cal.App.4th at p. 1747.)
              Appellant argues that other states (Pennsylvania, Kentucky, and Tennessee)
exclude CSAAS evidence and that California should do the same. Our state supreme
court has approved the admission of CSAAS testimony for the limited purpose of
disabusing a jury of misconceptions about how a child victim reacts to or reports sexual


                                              10
molestation. (People v. McAlpin, supra, 53 Cal.3d at pp. 1301-1302.) Under principles
of stare decisis we are bound to follow decisions of our state supreme court. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
                                      CALCRIM 1193
              Appellant argues that CALCRIM 1993 is flawed because the jury was
instructed that it may base its verdict on assumptions inherent in CSAAS research that
could support the credibility of the victims. Appellant takes issue with a sentence in
CALCRIM 1993 which states that the jury may consider CSAAS evidence "in deciding
whether or not E. O.'s and G. G.'s conduct was not inconsistent with the conduct of
someone who has been molested, and in evaluating the believability of their testimony."
              CALCRIM 1193 did not require the jury to accept the CSAAS evidence or
presume that E. or G. were molested. No part of CALCRIM 1193 creates a presumption,
conclusive or rebuttable, or shifts the burden of proof. Dr. Bernfeld testified that CSAAS
was not a diagnosis or a litmus case and emphasized that he was expressing no opinion
on whether the victims were telling the truth. Assuming there is an ambiguity in
CALCRIM 1193, the jury received instruction CALJIC 10.64 which stated that CSAAS
"research begins with the assumption that a molestation has occurred, and seeks to
describe and explain common reactions of children to that experience. As distinguished
from that research approach, you are to presume the defendant
innocent. . . . [¶] You should consider the evidence concerning the syndrome . . . only
for the limited of purpose of showing, if it does, that the alleged victim's reactions, as
demonstrated by the evidence, are not inconsistent with her having been molested."
              Appellant makes no showing that the jury ignored the court's instructions or
that there is a reasonable likelihood that the jury misapplied the instructions. (Estelle v.
McGuire (1991) 502 U.S. 62, 72-73 [116 L.Ed.2d 385, 398-399]; People v. Clair (1992)
2 Cal.4th 629, 663.) We accordingly reject the argument that trial counsel's failure to
object to the CSAAS evidence or instructions violated appellant's right to a fair trial or
right to effective assistance of counsel.
                         Testimony of Appellant's Former Attorney


                                              11
              Under the guise of ineffective assistance of counsel, appellant argues that
he was denied a fair trial because the prosecution called appellant's former attorney
                                                                                    6
(Seymour Amster) to rebut Mr. and Mrs. Gomez's testimony that E. was lying. The
prosecutor argued that the defense opened up the issue when Mr. and Mrs. Gomez
testified that Amster was told about the meetings with E.'s mother. "I think that it goes to
their credibility, and that's at issue. [¶] . . . [¶] And as the court knows, in a jury trial,
credibility is everything." Appellant argued that the communications involved the
attorney-client privilege and attorney work product. The trial court overruled the
objections and permitted the prosecution to ask if Amster was aware that the meetings
between the Gomezs and E.'s mother were on-going.
              Amster stated that he met with appellant's parents after the police
commenced a witness tampering investigation. Amster interviewed E.'s mother, Maria,
and spoke to E. When asked whether Maria discussed E.'s admission of making false
accusations, Amster responded that Maria "never said that to me." When asked whether
E. admitted the accusations were false, Amster answered "she did not." Clarifying the
time frame, defense counsel asked whether the conversation with E. occurred before
Amster interviewed Maria. Amster replied: "Long before, because we had decided we
weren't pursuing the initial strategy."
              Appellant claims that he was denied effective assistance of counsel because
his attorney did not move to strike the "change of strategy" comment on Evidence Code
section 352 grounds. Before Amster testified, counsel voiced his concern that objections
in front of the jury would imply that "we're hiding something." Trial counsel's decision
not to object to or move to strike testimony falls within the wide range of reasonable
tactical decisions available to defense counsel. (See People v. Weaver (2001) 26 Cal.4th
876, 925; People v. Lewis (2001) 25 Cal.4th 610, 674.) After defense counsel cross-


6
 Amster represented appellant at the preliminary hearing and at pretrial hearing in which
appellant waived jury. Before trial, appellant retained attorney Eric Chase and withdrew
the jury waiver.


                                               12
examined Amster, the jury asked the following clarifying question: "As best [as] you can
recollect, what did Maria say to you during your meeting at the end of April 2007?"
Amster recounted that Maria was asked if she believed E. was telling the truth. Maria
told him that she had no reason to doubt her daughter but did not want appellant to be
prosecuted. Amster believed that Maria did not really know whether appellant molested
E. but trusted appellant as a teacher and did not want to see him get in trouble.
              Appellant claims that trial counsel was ineffective in not objecting to
Amster's testimony as hearsay and inadmissible lay opinion testimony. The decision to
object is inherently tactical and will seldom establish incompetence. (People v. Freeman
(1994) 8 Cal.4th 450, 490-491.) Counsel may have believed that an objection would
strengthen E.'s and Maria's credibility in the eyes of the jury. Even if we assumed that
trial counsel's performance was deficient, appellant makes no showing that he was
prejudiced. Prejudice must be established as a demonstrable reality, not simply
speculation as to the effect of the errors or omissions of counsel. (In re Clark (1993) 5
Cal.4th 750, 766.)
                                  Attorney Work Product
              Appellant finally argues that Amster's testimony violated his Sixth
Amendment right to counsel which includes the work-product doctrine as set forth in
Hickman v. Taylor (1947) 329 U.S. 495 [91 L.ed. 451].) Appellant concedes that section
1054.6 limits attorney work product in criminal cases to core work product, i.e., writings
reflecting an attorney's impressions, conclusions opinions, or legal research or theories.
(People v. Zumudio (2008) 43 Cal.4th 327, 354-355.)
              Appellant argues that the work product limitation undermines his Sixth
Amendment right to effective assistance of counsel and compromises counsel's ability to
investigate and prepare the defense case thoroughly. A similar argument was rejected by
our state supreme court in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 379-382.
Before Amster testified, the court limited the scope of the prosecution's questions to
avoid eliciting evidence relating to attorney work product or the attorney client privilege.
Amster's testimony was properly admitted to impeach Mr. and Mrs. Gomez and to rebut


                                             13
the defense theory that E. had lied about the sexual molestation. As discussed in United
States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141] "one cannot invoke the Sixth
Amendment as a justification for presenting what might have been a half-truth." (Id., at
p. 241 [45 L.Ed.2d at p. 155].)
                                      Cumulative Error
              Appellant's remaining arguments have been considered and merit no further
discussion. The alleged errors were harmless, whether considered individually or
collectively. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Appellant was
entitled to a fair trial, not a perfect one. (Ibid.) None of the purported errors, either
singularly or cumulatively, denied him a fair trial. (People v. Jenkins (2000) 22 Cal.4th
900, 1056.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                            YEGAN, J.

We concur:


              GILBERT, P.J.


              PERREN, J.




                                              14
                                  Lance A. Ito, Judge

                         Superior Court County of Los Angeles

                           ______________________________


             Edward Schulman, under appointment by the Court of Appeal, foir
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, Yun K. Lee, Deputy Attorney General,
for Plaintiff and Respondent.




                                          15
