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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 

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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 counts 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 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. 
2

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. 
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 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. 
4

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 
5

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 selfprotection 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 
6

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 

repeated phone calls with intent to annoy or harass is a misdemeanor.2

 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 

when he told Katrina that he was probably 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, 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?" 
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 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-inEvidence' 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.) 
8

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 

instruction.4

 

 

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 
9

 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 

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 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. 
10

 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 
11

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
12

 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 

(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 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. 
13

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 
14

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. 
15

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.