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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
ANTONIO GOMEZ,
Defendant and Appellant. 2d Crim. No. B251602 (Super. Ct. No. BA319474-01) (Los Angeles County)

Antonio Gomez, a middle school teacher, appeals from the judgment entered after a jury convicted him of six count s of lewd conduct on a child under the age of 14 years (counts 1-6; Pen. Code, § 288, subd. (a)) 1 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 cond uct with the victim within the meaning of section 1203.066, subdivision (a)(8). The tr ial 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.2 Statement of Facts Appellant, a physical education teache r at Robert Luis Stevenson Middle School (Stevenson), victimized two female students in 2005 and 2006. The modus operandi was the same. Appellant befriended th e victims, promised to look out for them, and changed the relationship from teach er-student to teacher-lover. Counts 1-8; E. O. E. O., born May 1992, attended Stev enson 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 hi s 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 drop ped her off two blocks from her house. A few weeks before graduation, appe llant 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 on e 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 want ed to be with her, and that she should learn
about sex from him.3 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 sa id 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 Ti cson, a pediatrician, performed the sexual assault exam. E. reported acts of oral copulation and vaginal in tercourse and tears on her hymen consistent with vagi nal 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, appe llant's parents, Malaquias Gomez and Norma Gomez , met with E. a nd E.'s mom (Maria O.) and offe red to pay for E.'s college education if E. "dropped" the charges. A ppellant's former atto rney, Seymour Amster, interviewed appellant's parents about the meeti ngs 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 th eory that E.'s accusations were false. Appellant's parents tes tified that they met with E. and Maria at an
IHOP restaurant and that E. admitted "it wa s 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 fo r 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." Am ster spoke to E. on the phone and denied that E. ever said that she was lying.4 C ounts 9 -12; G. G. G. G., born April 1991, attended Stevenson with her older sister Griselda G. When G. was in the sixth grade, Grisel da 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 pape rs. School security guards warned G. to stay away from appe llant and that he was married. In May 2005, appellant kissed G. a nd touched her brea sts on top of her clothing. A few days later, appellant kissed her and put hi s tongue in her mouth. In June, G. went to Knott's Berry Farm on a school graduation trip. Appellant asked her to go on th e amusement rides. During the log ride, appellant kissed
G. on the neck and touched her breasts. On th e 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 he lp do "locker work." Griselda believed appellant would marry her when she turned 18. In high school, appellant asked her to write a love le tter and show him how much she loved him. Appellant visited frequently and, during one vi sit, 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 calle d 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 sexua l abuse, appellant called Karina and left voicemails. Appellant kept callin g. Karina decided to answer one of the calls and used the "record" option on her cell phone to reco rd the call. During the call, appellant5 admitted that he had feelings for E. After Ka rina told E. about the call, the police made a copy of the phone recording.
Recorded Ph one 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 fo r the purpose of obtaining evidence reasonably believed to relate to the commission by another part y to the communication of . . . any felony involving violence against the person, or a viol ation of Section 653m." Our courts "have examined the relationship between Penal Co de sections 632 and 633.5. All have concluded -- correctly -- that the latter exempts from the form er an unconsented recording made with the requisite reasonable be lief although the recording fails to capture the anticipated evidence [citati on] or where the initial purpose of the recording is selfprotection rather than to gath er evidence for use in criminal prosecution [citation]." ( Lubetsky v. State Bar (1991) 54 Cal.3d 308, 321.) Appellant claims that lewd conduc t on a child is not a felony involving "violence against the person" within the meaning of secti on 633.5. Se ction 667.5, subdivision (c), however, provides that violati on 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 puni shment via section 667.5, subdivision (c) not only for certain felonies which are 'viole nt' in a physical sense but also for certain felonies which cause extraordinary psycholo gical or emotional harm. [Citation.] By adding subdivision (c) to section 288 in 1981 . . . , the Legislature recognized both subdivisions (a) and (b) violations often ca use irreparable psychological and emotional6 damage to child victims." ( People v. Hetherington (1984) 154 Cal.Ap p.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, subdivisi on (b) provides that making repeated phone calls with intent to annoy or harass is a misdemeanor. 2 The purpose of section 653m is to deter people from maki ng 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 wa nt to talk but continued making calls, supporting the inference that he intended to annoy or harass. Appellant said as much when he told Katrina that he was pr obably making her feel uncomfortable. 3 The calls were made after he was accused of sexually molesting E. Based on the timing and context of the phone call, th e 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 ad mitted 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 talk ing to appellant and "t hat's when he started calling and he started leaving voi cemail[s]." During the recorded call, appellant said "I told you guys [i.e., E. and Kari na] that if you guys didn't fe el 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?"7 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 th e 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 Tele phone Privacy Act of 1985 (Stats. 1985 ch. 909), which re-enacted section 632, was inte nded to abrogate Prop osition 8. The 1985 Act declares: "[T]his act is intended to prov ide a legal recourse to those persons whose private cellular radio telephone communicati ons 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 63 2.5, the primary element of the 1985 Act, which discloses no intent to abrogate Proposition 8. The legislative history does not show any legislative inte nt to annul the effects of Proposition 8. "We cannot assume that the Legislature understood or intended that such far-reaching conseque nces - virtually a legislativ e repeal of the 'Truth-inEvidence' section of Propositi on 8 - would follow a[ statut ory] amendment so casually proposed and adopted without opposition." ( In re Lance W. , supra, 37 Cal.3d at p. 894 [discussion of post-Proposition 8 am endment of section 1538.5.].) Nor has appellant cited any authority that the United States Constitution requires exclusion of the telephone recordi ng. Because Karina did not record the conversation while acting as a government offi cer 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 c onsents to the eavesdrop ping 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.)8 Child Sexual Abuse A ccommodation Syndrome Appellant complains that the e xpert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) was inadmi ssible and denied him a fair trial. Appellant forfeited the error by not objecti ng but claims he was denied effective
assistance of trial counsel.
At the Evidence Code section 402 hear ing, 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
instruction. 4

4 The jury was instructed: "You are about to hear fro m Dr. Jayme Bernfeld, PhD, regarding something called child abuse acc ommodation syndrome. Dr. Bernfeld's testimony about child sexual abuse accommoda tion syndrome is not evidence that the defendant committed any of the cr imes charged against him. [¶] You may consider this evidence only in d eciding 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 eval uating 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 th e behavior of one or more of the alleged victims in this case and not as proof the molest ation occurred as to a ny 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 ge nerally and to help y ou understand, if it's determined by you, to apply to the behavior of the alleged vic tims in this case and not for the purpose of proving that the molestation oc curred 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 concer ning child sexual abuse accommodationsyndrome. This ev idence is not received and mu st not be considered by you as proof that the alleged victim's molest ation claim is true. [¶] Child sexual abuse accommodation syndrome research is based upon an approa ch that is completely different from that which you must take to th is case. The syndrome research begins with the assumption that a molestation has occu rred, and seeks to describe and explain common reactions of children to that experien ce. As distinguishe d from that research approach, you are to presume the defendant innoce nt. The People ha ve the burden of9 CSAAS evidence addresse s a child's common reactions to sexual abuse and is admissible to disabuse a jury of any my ths 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 experiences. 5 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 de termining whether CSAAS evidence should be admitted. ( People v. Millhouse (2003) 109 Cal.App.4th 16 12, 1619-1620.) Doctor
Bernfeld stated that CSAAS is "a model fo r 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 ha ppened 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 di sclose until adulthood and sometimes not even then,"
It is settled that CSAAS evidence may be admitted "to rehabilitate [a] witness's credibility wh en the defendant suggests that the child's co nduct after the incident - e.g., a delay in reporting - is in consistent with his or her testimony claiming molestation. [Citations.]" ( People v. McAlpin (1991) 53 Cal.3d 1289, 1300, fn. omitted.) E.'s credibility was challenged ea rly in the trial. In opening statement, appellant's trial attorney told the jury that the People's case was about school gi rls 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 re ally about E."

proving guilt beyond a reasonable doubt. [¶] You should consider the evidence concerning the syndrome and its effect only fo r the limited purpose of showing, if it does, that the alleged victim's reactions, as demons trated by the evidence, are not inconsistent with her having been molested."

5 At time of trial, E. was 19 years old and a ttending college G. was 21 and married with one child.10 Dr. Bernfeld's testimony was proper ly admitted to explain why sexually abused children delay reportin g 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 o ccurs, the victim "feel[ s] like an accomplice and a co-conspirator rather than a victim." Appellant asserts that trial counsel wa s ineffective because he did not object
to the CSAAS evidence on Ev idence Code section 352 gr ounds. The probative value of the evidence was significant and a ssisted the jury in assessing E.'s and G.'s credibility and reasons for not disclosing the se xual 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 assist ance 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 in struction that "[y]ou may consider [the CSAAS] evidence only in deciding whet her 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 c ourt further instructed that Dr. Bernfeld's testimony was not evidence that appellant comm itted 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 unfairor denied appellant due process. (See

e.g., People v. Patino, supra, 26 Cal.App.4th at p. 1747.) Appellant argues that other states (P ennsylvania, 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 misconcep tions about how a child victim reacts to or reports sexual11 molestation. ( People v. McAlpin, supra, 53 Cal.3d at pp. 1301-13 02.) Under principles
of stare decisis we are bound to follow de cisions 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 a ssumptions inherent in CSAAS research that could support the credibility of the victims. Appellant takes issue with a sentence in
CALCRIM 1993 which states th at the jury may consider CS AAS evidence "in deciding
whether or not E. O.'s and G. G.'s conduct was not incons istent with the conduct of someone who has been molested, and in evalua ting the believability of their testimony." CALCRIM 1193 did not require the ju ry to accept the CS AAS evidence or presume that E. or G. were molested. No part of CALCRIM 1193 cr eates 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 em phasized that he wa s expressing no opinion
on whether the victims were telling the truth. Assuming there is an ambiguity in CALCRIM 1193, the jury recei ved 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 child ren to that experience. As distinguished
from that research a pproach, you are to presume the defendant innocent. . . . [¶] You shou ld consider the ev idence 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 accor dingly 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 Attorney12 Under the guise of ineffective assist ance of counsel, appellant argues that he was denied a fair trial because the pr osecution called appellant 's former attorney (Seymour Amster) to rebut Mr. and Mrs. Gomez's testimony that E. was lying. 6 The prosecutor argued that the defense opened up the issue when Mr. and Mrs. Gomez
testified that Amster was told about the meeti ngs with E.'s mother. "I think that it goes to their credibility, and that's at issu e. [¶] . . . [¶] And as th e 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 as k 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 Mari a 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 "c hange of strategy" comment on Evidence Code section 352 grounds. Before Amster testifie d, counsel voiced his c oncern 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 testim ony 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 prelimin ary hearing and at pret rial hearing in which appellant waived jury. Before trial, appellant retained attorney Er ic Chase and withdrew the jury waiver.13 examined Amster, the jury aske d the following clarifying ques tion: "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 sh e believed E. was telling the truth. Maria
told him that she had no reason to doubt her daughter but di d 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 di d 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 inadmissibl e lay opinion testimony. The decision to object is inherently tactical and w ill seldom establish incompetence. ( People v. Freeman (1994) 8 Cal.4th 450, 490-491.) Counsel ma y have believed that an objection would strengthen E.'s and Maria's credibility in the ey es 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 establishe d as a demonstrable reality, not simply speculation as to the eff ect of the errors or omissions of counsel. ( In re Clark (1993) 5 Cal.4th 750, 766.) Attorney Work Product Appellant finally argues that Amst er's testimony violated his Sixth Amendment right to counsel which includes th e work-product doctri ne 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, conclusion s opinions, or legal research or theories. ( People v. Zumudio (2008) 43 Cal.4th 327, 354-355.) Appellant argues that the work pr oduct limitation undermines his Sixth Amendment right to effective assistance of counsel and compromise s counsel's ability to investigate and prepare the defense case thor oughly. 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 pr oduct or the attorney client privilege. Amster's testimony was properl y admitted to impeach Mr. and Mrs. Gomez and to rebut14 the defense theory that E. had lied about the sexual molestation. As discussed in United
States v. Nobles (1975) 422 U.S. 225 [4 5 L.Ed.2d 141] "one ca nnot 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 harm less, 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, de nied 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.15 Lance A. Ito, Judge
Superior Court County of Los Angeles

________________ ______________

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

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