Filed 3/19/13 P. v. Kaczmarczyk CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D059889

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD218395)

MARK KACZMARCZYK,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, John S.

Einhorn, Judge. Affirmed.



         Defendant Mark Kaczmarczyk, along with his wife (Anita), was charged with

eight counts of sexual abuse of four minor victims. After the close of the prosecution's

case, the court granted Kaczmarczyk's Penal Code1 section 1118.1 motion to dismiss the

four charges involving two of the alleged victims. The jury ultimately convicted




1        All further statutory references are to the Penal Code unless otherwise specified.
Kaczmarczyk of the two charges involving one of the alleged victims,2 but acquitted

Kaczmarczyk of two similar charges involving a different alleged victim. Kaczmarczyk

was sentenced to an aggregate prison term of eight years.

       On appeal, Kaczmarczyk asserts the evidence was insufficient to support the

convictions. He also asserts the court erred when it refused to allow the jury to hear that

charges involving two other alleged victims had been dismissed, he was denied effective

assistance of counsel, and the cumulative errors denied him a fair trial.

                                                I

                                FACTUAL BACKGROUND

       A. Prosecution Case

       The Day-care Operation

       Anita operated a day-care facility in the apartment she shared with Kaczmarczyk.

There were usually about four children, whose ages ranged from six weeks to three or

four years old in attendance at the facility.

       Jane Doe, the victim of the two offenses of which the jury convicted

Kaczmarczyk, turned two years old in April 2007 and attended day care at

Kaczmarczyk's apartment starting in April 2007. Jane Doe's mother (Vanessa) believed

Anita was in charge of the children and Kaczmarczyk (who was usually present) only


2      The jury found Kaczmarczyk guilty of committing a lewd act on a child under the
age of 14 (§ 288, subd. (a), count 8) and felony child abuse (§ 273a, subd. (a), count 7),
and found true the special allegation, alleged in connection with count 8, that
Kaczmarczyk had engaged in substantial sexual conduct within the meaning of section
1203.066, subdivision (a)(8).

                                                2
helped Anita and did not have primary responsibility. However, there were times when

Kaczmarczyk was home with some of the children when Anita was not present.

Ms. Rogers, who worked for Anita a few days a week in April and May 2007, testified

Kaczmarczyk talked to the kids but did not interact much with them.3

       The Alleged Molestation

       Jane Doe's parents, Vanessa and Patrick, were in divorce proceedings at the time

Jane Doe was attending Anita's day-care facility.4 Vanessa had custody of Jane Doe for

the weekend starting Friday, September 7, 2007. Because of Vanessa's work schedule,

Jane Doe was placed at Anita's day care on that Friday, as well as on Saturday and

Sunday, and stayed there from 6:00 a.m. to 6:00 p.m. Vanessa watched Jane Doe on

September 10 until 7:00 p.m., then briefly left Jane Doe at Anita's day care but picked her

up around 8:30 p.m. Jane Doe had no genital injuries prior to September 11, 2007.

       On September 11, 2007, Vanessa (who was suffering from strep throat) left Jane

Doe at Anita's at 7:00 a.m., with plans that Patrick would pick her up later that day.

However, Vanessa returned to Anita's around noon that day because she was worried

Jane Doe might have been infected with her strep throat. Kaczmarczyk and Anita were


3    Rogers also testified that Kaczmarczyk constantly made inappropriate sexual
comments to her.

4      Patrick testified Kaczmarczyk talked to him about the divorce and even tried to
play matchmaker for Patrick. Vanessa testified Kaczmarczyk asked her about her sex life
with Patrick when Anita was not present, which made Vanessa uncomfortable.
Kaczmarczyk also constantly made comments about her appearance, and wanted to set
her up with one of his friends. After a while, Kaczmarczyk hugged Vanessa when she
came to the facility, which also made her uncomfortable.

                                             3
there when Vanessa arrived. Patrick, who had been out of town, returned on September

11 and went to Anita's to pick up Jane Doe. When he arrived, Kaczmarczyk, Anita and

Vanessa were there. Patrick took Jane Doe home.

       Jane Doe was unusually "fussy" after Patrick picked her up on September 11.

After arriving at Patrick's, both Jane Doe and Patrick took naps. Patrick did not change

her diaper until around 6:00 p.m. that night. The diaper was wet with very dark-looking

urine. Jane Doe also did not eat much dinner, which was unusual, but Patrick thought she

might be getting sick as Vanessa feared. After dinner, Patrick and Jane Doe went outside

where she appeared to play normally. She did not fall or otherwise injure herself while

outside. After they went inside shortly before 8:00 p.m., Patrick prepared a bath for Jane

Doe. When he removed her diaper, there was a spot of dark red blood on it. Jane Doe

also had blood on the outside of her vaginal walls, but Patrick could see no injury. Jane

Doe had never had blood or bleeding from her vaginal area before.

       Patrick tried phoning Vanessa to tell her about the blood, and left several

messages, but he could not reach her, so he finished bathing Jane Doe and put her to bed

while waiting for Vanessa to return his call. Before Vanessa returned his call, Patrick

received a phone call from Kaczmarczyk around 9:00 p.m. Kaczmarczyk asked if

everything was okay and if Patrick was bringing Jane Doe back to day care the next day.

It was unusual for Kaczmarczyk to call Patrick that late at night. Patrick did not mention

his suspicions about Jane Doe's condition because he did not want to jump to

conclusions. Patrick was suspicious of Kaczmarczyk because Jane Doe had spent a lot of



                                             4
the preceding four days at day care and because she was unusually fussy, she lacked her

usual appetite, there was blood in her diaper, and because of the unusual phone call.

       Patrick finally spoke to Vanessa around 9:30 p.m. that night. Patrick, who was

very upset, told her about the blood spot in Jane Doe's diaper. Vanessa called her mother,

who told Vanessa that both she and Vanessa had medical issues involving blood in their

urine when they were young and had operations to correct it. This provided some

reassurance to Patrick and Vanessa, and they decided to let Jane Doe continue sleeping

but to take her to a doctor the next day.

       The next morning, Jane Doe had another smudge of blood on her diaper. Patrick

had planned to drop Jane Doe at day care, go into work to seek permission to take the day

off, and to call the medical clinic for an appointment. He left Jane Doe at the day care

that morning. Patrick did not tell Anita about the blood. Because Vanessa was still sick

that day, she checked in at work and then went to retrieve Jane Doe from Anita's day

care. She took Jane Doe back to her apartment, where she rendezvoused with Patrick

shortly before noon on Wednesday, September 12. Patrick asked Vanessa to look at Jane

Doe's genital area. When Vanessa took off Jane Doe's diaper, both parents could see a

red, fresh-looking scratch inside the lip of her vagina. It was not bleeding but had not yet

scabbed over. They took Jane Doe to Rady Children's Hospital.

       Dr. Murray, a pediatrician trained and experienced in child abuse, examined Jane

Doe on the afternoon of September 12. Although Jane Doe was at first normal and

playful during the physical examination, she cried and struggled when Dr. Murray

conducted a detailed but noninvasive genital examination. Dr. Murray's examination and

                                             5
findings were that Jane Doe's injuries were definitive evidence of sexual abuse. The level

of healing (combined with the amount of blood Dr. Murray saw on Jane Doe's night and

morning diapers and her behavior patterns on September 11) led her to conclude the

injury was inflicted sometime between 7:00 and 11:30 a.m. on September 11, although it

could have happened during the evening of September 10, but this was less likely.

       Children's Hospital called the police, and Detective Vella responded. Patrick and

Vanessa were both very upset and crying. Vella interviewed each parent separately and

tested a sexual assault kit from Patrick. Three officers went to Anita's day-care facility

the following day; Anita was present but Kaczmarczyk was not. They questioned her as

a witness and were not aggressive with her.

       Anita was nervous, cried at times, and changed her statements as she talked.

When officers asked if she knew why they were there, she said "[Jane Doe]" because

Jane Doe had not come to day care that day and there had been phone calls with Jane

Doe's grandmother. Anita told them Jane Doe had been at day care on Wednesday

(September 12) and, when asked what hours Jane Doe had been there on Tuesday,

September 11, Anita gave varying times but finally settled on 7:00 a.m. to around 11:00

a.m.5 Anita said she had not left Jane Doe alone on September 12, and had not left Jane

Doe with other people on either September 10 or 11. She could not think of anyone who


5      At one point, Anita said Jane Doe had not been there at all on September 12. One
of the officers testified it was difficult to get responses from Anita about specific dates,
and it was difficult to follow her answers. She said she had a log of the children on her
computer but an FBI forensic search of the computer revealed no log sheets, and she had
no sign-in sheets or logs for the day care.

                                              6
had access to Jane Doe alone. There had been no unusual occurrences at the day care nor

any complaints from parents.

       Anita said she had changed Jane Doe's diaper on September 12 and it was still in a

pail. She was the only one who changed diapers on the children, and she would have

noticed if any of them had been bruised or injured. Anita said she had noticed nothing

unusual about Jane Doe on September 10. However, she paused for quite a period of

time when asked about September 11. She finally said Jane Doe was sleeping a little bit

more than normal but there was nothing physically wrong with her. She stated Jane Doe

was at day care from around 6:00 or 7:00 a.m. through 11:30 a.m. on September 11, and

approximately the same period on September 12. Anita did not leave the day care on

September 12.

       During Anita's interview, Kaczmarczyk phoned their apartment. An officer could

hear Kaczmarczyk's voice on the answering machine say: "Anita, this is Mark. I need to

update you on a few things. . . . [¶] . . . [¶] And, uh, well, oh, and I was just wondering if

you've heard from, uh, either Patrick or Vanessa pertaining to, uh, what's going on with,

uh, that situation. So give me a call if you can."

       The Other Children Evidence

       There was evidence introduced to support the prosecution's charges that three

other children at the day care--Deven, John Doe, and Jack--were victims of abuse.




                                               7
      The information charged Kaczmarczyk with two counts involving John Doe.6

John Doe attended Anita's day care from April through June 2007, when he was two

years old. He was not very verbal. His parents were toilet training him during this

period. In mid-June, when John Doe's mother (Adrianne) picked him up from day care,

Anita said she was overwhelmed and could not help to potty train him, and asked

Adrianne to take him out of day care or to put him back in diapers. Adrianne talked with

Anita and thought they had agreed to continue potty training John Doe. However,

Adrianne started looking for another day care because she was uncomfortable with

Kaczmarczyk. For example, one day when Adrianne was walking to her car with her

son, Kaczmarczyk grabbed her arm and told her she was the cutest of them all, which

made her very uncomfortable.

      On June 29, 2007, Adrianne took John Doe home from day care and saw the end

of his penis was darkly bruised. This was a new injury. Kaczmarczyk and Anita were

present when Adrianne picked John Doe up and neither mentioned any injury. Adrianne

asked John Doe about the injury but got no clear answer. When Adrianne called

Kaczmarczyk and Anita to as what had happened, Kaczmarczyk said he had no idea.

Anita proffered one explanation and, after Adrianne told Anita that explanation was not

logical, gave another explanation. Adrianne never returned to Anita's day care. Adrianne




6     The jury found Kaczmarczyk not guilty as to these counts. However, the jury
convicted Anita of misdemeanor child abuse as to John Doe.

                                            8
took photographs of the injury and noted the details, but did not contact police or take

John Doe to a doctor, and the bruising resolved itself in about one week.7

       The information also charged Kaczmarczyk with two counts involving Jack.8

Jack was two months old when he was placed in Anita's day care. Jack's mother,

Carolyn, noticed Kaczmarczyk was frequently home alone with the children. Twice,

when Carolyn was dropping off or picking up Jack, she noticed Kaczmarczyk was

wearing only a towel and was wet, as if he was just getting out of the shower. Although

Kaczmarczyk said he should not be standing there, he continued to stand there and did

not go to his bedroom. Kaczmarczyk also made sexually explicit comments to Carolyn,

and walked her out to her car every day even though she told him it was unnecessary.

       In late August or early September 2007, after Jack's parents collected Jack from

day care, they noticed injuries when they changed his diaper, including bluish or greenish

discoloration of Jack's testicles, and three fresh, raised welts, about one inch long,




7      Dr. Murray reviewed the photographs of the bruising. She stated the injury
required forceful compression of the tip of the penis and was not self-inflicted.
Dr. Murray had seen children on whom the tip of the penis had been pinched or
forcefully squeezed as punishment for toilet training accidents. Dr. Murray concluded
the benign explanations proffered by Anita to Adrienne to account for the injury would
not have caused this injury.

8      These counts were ultimately dismissed under section 1118.1 for insufficient
evidence. However, over defense objection, the court permitted the jury to consider the
evidence under Evidence Code sections 1101 and 1108 when assessing the charged
counts as to Jane Doe and John Doe.

                                              9
between his testicles and anus.9 On another occasion, after Nathan picked Jack up,

Nathan saw a coarse, thick and kinky dark hair on Jack that looked like a pubic hair.

Nathan said it was definitely not his or his wife's pubic hair. Because Carolyn became

uncomfortable using Anita's day care, Nathan picked Jack up one day and was about to

tell her that Jack would not be returning when Anita told Nathan they were shutting the

day care as of that day.

       The information also charged Kaczmarczyk with two counts involving Deven.10

Deven was in Anita's day care from mid-August to Mid-September, 2007, when Deven

was just over one year old. When police searched the day care in connection with their

investigation of Jane Doe, one of the diapers they seized had fecal matter and blood that

came from Deven. Dr. Murray could not confirm that Deven had been penetrated or

abused merely from the presence of blood in the diaper, because a young child can bleed

from fissures occurring when they pass a hard stool. A young child would heal quickly

from a penetration to his anus, and after a week injuries would not be visible. If Deven

suffered no other problems (such as constipation, bowel problems, digestion problems or

intestinal problems), then blood from the anus could be attributable to trauma. Deven's

father, who had primary custody of him, testified Deven was healthy during that period


9      Dr. Murray reviewed Jack's medical records and stated the scratches were caused
by a fingernail or some sharp object rubbed down the skin with enough force to cause
damage under the skin. The marks were not diaper rash.

10     These counts were also dismissed under section 1118.1 for insufficient evidence.
However, the court permitted the jury to consider the evidence under Evidence Code
sections 1101 and 1108 when assessing the charged counts as to Jane Doe and John Doe.

                                            10
and had no constipation, diarrhea, or any other illness that could have caused the bleeding

in his diaper.11

       Kaczmarczyk's Flight

       A social worker was assigned to investigate Kaczmarczyk and Anita in September

2008, and was in regular contact with Kaczmarczyk and Anita at various hearings and

meetings. At an October 2008 hearing, Kaczmarczyk and Anita were ordered to appear

at a January 2009 hearing. A few weeks later, the District Attorney filed a request for a

hearing to obtain an order to get records as part of its investigation of alleged child abuse

and lewd acts on children at the day care, and Kaczmarczyk was informed of the

allegations being investigated. The court set a December 19, 2008, hearing date.12

       Kaczmarczyk left the country in early December 2008 and, after a stopover in

Taiwan, entered Hong Kong. He then reentered Taiwan on January 8, 2009. Just before

leaving the United States, Kaczmarczyk set up a bank account that allowed him to draw

cash from ATM machines in Hong Kong and Taiwan. Kaczmarczyk was located in

Taiwan by local police, who determined that he had entered without a visa, which limited

his permissible stay in Taiwan to 30 days, and Kaczmarczyk stayed much longer than



11     Deven did develop a severe rash during the time he was in Anita's day care, which
started on his inner thigh and spread almost to his ankle, leaving a hideous scab and
bumps. The rash later spread to his trunk and both arms. Doctors could never
specifically identify it but said it was probably some sort of yeast infection. Dr. Murray's
review of the records led her to state the rash was typical of Candida infections or
dermatitis, but did not think the rash caused the blood in Deven's diaper.

12     A criminal complaint was issued against Kaczmarczyk on January 27, 2009.

                                             11
was allowed. Local police had been unable to find him through credit card records

because Kaczmarczyk apparently did not use his credit cards. Additionally, although

Kaczmarczyk registered his hotel as the Shanwan Hotel in Taipei City, he never stayed

there. Local police were finally able to find him using phone records, and he was

arrested and deported back to the United States.

       B. The Defense

       Kaczmarczyk contended Jane Doe was abused by her father, Patrick, not by

him.13 A neighbor of Patrick testified he saw Jane Doe on the evening of September 11,

2007, and she was playing normally and appeared happy. Patrick's former mother-in-

law, Carole, testified Patrick called her on the evening of September 11, 2007, and told

her about the blood in Jane Doe's diaper. Carole told Patrick he should take Jane Doe to

be examined and should keep the diapers with the blood on them. Patrick made an

appointment for the following day but resisted her suggestion that he take Jane Doe to the

hospital that night. The next day, Carole spoke to Vanessa and told her to pick Jane Doe

up from day care and take her to the hospital. Carole had been the person who arranged

for placement into Anita's day care. Carole had done some checking on Anita before

placing Jane Doe into Anita's day care, and had visited the day care seven to 10 times.

On each occasion, Kaczmarczyk was present.

       Anita called Dr. Carroll, a psychiatrist who had experience with sex offenders.

Dr. Carroll reviewed the records, the police reports, and interviewed Anita. Dr. Carroll

13   He also asserted Anita was responsible for diapering and caring for John Doe and
Kaczmarczyk could not be connected to any abuse of John Doe.

                                            12
testified Anita did not seem to fit the profile for a sex offender, and she did not seem

sufficiently meek and passive that she would have assisted a pedophile. He also noted

women almost never, if ever, sexually abuse infants or small children.

                                              II

                       THE SUBSTANTIAL EVIDENCE CLAIM

       Kaczmarczyk contends the guilty verdicts must be reversed because the evidence

was insufficient to support the conclusion that Kaczmarczyk was the perpetrator of Jane

Doe's injuries.14

       A. Legal Principles

       When a defendant challenges the sufficiency of the evidence to support a

conviction, our review is limited to reviewing the entire record to determine whether

substantial evidence supports the verdict. Substantial evidence is defined as evidence

that is reasonable, credible, and of solid value. (People v. Elliot (2005) 37 Cal.4th 453,

466.) "The appellate court presumes in support of the judgment the existence of every

fact the trier could reasonably deduce from the evidence. [Citations.] The same standard

applies when the conviction rests primarily on circumstantial evidence. [Citation.]

Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence

14      On appeal, Kaczmarczyk appears also to contend there was no substantial
evidence the injuries were caused by sexual contact rather than by some other causal
force. However, both the nature of the injuries and the expert opinion of Dr. Murray
provided ample evidence from which a jury could conclude the blunt force trauma that
produced the injuries to Jane Doe's vaginal area was the product of purposeful human
acts rather than from accidental injury. Indeed, Kaczmarczyk's counsel below made no
effort to claim the injuries were caused by accident, but instead argued the evidence
showed the perpetrator was Patrick rather than Kaczmarczyk.

                                             13
susceptible of two reasonable interpretations, one of which suggests guilt and the other

innocence, it is the jury, not the appellate court[,] that must be convinced of the

defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances

reasonably justify the trier of fact's findings, the opinion of the reviewing court that the

circumstances might also reasonably be reconciled with a contrary finding does not

warrant a reversal of the judgment. [Citation.]" ' " (People v. Kraft (2000) 23 Cal.4th

978, 1053-1054.) In applying this standard, we must affirm the judgment unless under

" 'no hypothesis whatever is there sufficient substantial evidence to support [it].' "

(People v. Nishi (2012) 207 Cal.App.4th 954, 966.) Because it is "the exclusive function

of the trier of fact to assess the credibility of witnesses and draw reasonable inferences

from the evidence" (People v. Sanchez (2003) 113 Cal.App.4th 325, 330), we may not

merely retry the case on appeal and, accordingly, the defendant "bears an enormous

burden" when challenging the sufficiency of the evidence. (Ibid.)

       B. Analysis

       We conclude substantial evidence supports the verdicts. A rational trier of fact

could have inferred, from all of the surrounding facts and circumstances, that

Kaczmarczyk inflicted the injuries to Jane Doe. A reasonable trier of fact could conclude

Jane Doe's injuries were inflicted on September 11, 2007. Vanessa testified Jane Doe

had no bleeding or injuries before 7:00 or 7:30 a.m. on September 11, 2007, when

Vanessa left Jane Doe at Anita's day care, and Dr. Murray testified the injuries she

observed when she examined Jane Doe on the late afternoon of September 12 were

"fresh" (less than 72 hours old). Moreover, phone records showed Patrick made

                                              14
numerous phone calls to Vanessa starting around 8:00 p.m. that evening. If the jury

credited the testimonies of Patrick and Vanessa--that he was calling to report the blood

spots on Jane Doe's diapers--this evidence would have fixed the time during which the

injuries were inflicted at between 7:00 a.m. and 8:00 p.m. on September 11, consistent

with the medical findings of Dr. Murray as to the timing of the injuries.

       The only adults potentially alone with Jane Doe during that time period were

Kaczmarczyk, Anita and Patrick. Patrick denied he inflicted the injury, and the jury was

entitled to credit that testimony.15 (People v. Friend (2009) 47 Cal.4th 1, 41 [jury is

exclusive judge of credibility and appellate court must defer to jury's determination

unless the testimony involves physical impossibility or obvious falsity].) Moreover,

Patrick's other testimony (which the jury was again entitled to credit) was that Jane Doe

was "fussy" when he collected her from Kaczmarczyk's care, lacked her normal appetite

that evening, and was "fussy" when he bathed her that night, which provided an

additional basis from which the jury could infer the injury occurred before Patrick

retrieved her from Anita's day care.

       The jury had ample evidence from which to infer Jane Doe was injured between

the time that Vanessa left her at Anita's day care and the time Patrick picked her up,

which Dr. Murray stated was consistent with her medical findings. Accordingly, we must


15     The jury's decision to credit Patrick's testimony finds additional support in the
testimonies of Dr. Murray and Detective Vella. Both witnesses confirmed Patrick was
quite upset about the injuries. Moreover, a jury could well conclude that, if Patrick had
been the molester, his reaction would have been to hide the injury rather than to report it
and trigger the involvement of the authorities.

                                             15
assess whether the jury's conclusion--that it was Kaczmarczyk rather than Anita who

inflicted the injury--is supported by substantial evidence. Patrick testified Kaczmarczyk

phoned him that night around 9:00 p.m., which was unusual,16 and one of the inquiries

posed by Kaczmarczyk was to see if everything was all right and if Jane Doe would be

back the following day. Kaczmarczyk's concern about Jane Doe continued to manifest

itself two days later when police, while interviewing Anita at her home, overheard

Kaczmarczyk call her and say, "And, uh, well, oh, and I was just wondering if you've

heard from, uh, either Patrick or Vanessa pertaining to, uh, what's going on with, uh, that

situation." Finally, when the investigation accelerated at the end of 2008, Kaczmarczyk

fled to Taiwan, provided a false address, hindering the ability to find him in Taiwan, and

apparently eschewed the use of credit cards (in favor of paying cash) to further hinder the

ability of the authorities to locate him.17 We conclude substantial evidence supports the

jury's determination that Kaczmarczyk, rather than Patrick or Anita, caused the injuries to

Jane Doe.




16    Phone records confirmed a call was placed from Kaczmarczyk's phone to Patrick's
phone that night around 9:00 p.m.)

17     Kaczmarczyk correctly notes that flight alone is not sufficient to prove guilt.
(§ 1127c.) However, although a jury may not consider flight as dispositive, it may
consider flight as tending to show a consciousness of guilt. (People v. Carter (2005) 36
Cal.4th 1114, 1182.) Flight may be considered " 'whenever evidence of the
circumstances of defendant's departure from the crime scene or his usual environs, . . .
logically permits an inference that his movement was motivated by guilty knowledge.' "
(People v. Lucas (1995) 12 Cal.4th 415, 470.)

                                            16
                                               III

              THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

       Kaczmarczyk claims he was deprived of effective assistance of counsel because

his counsel (1) did not object to evidence of Kaczmarczyk's inappropriate behavior

toward women who were clients of Anita's day care; (2) did not timely request the court

strike the evidence as to the other alleged victims pursuant to Evidence Code section 352

after the court dismissed those counts under section 1118.1; (3) did not object to a

comment made by the prosecutor during closing argument; and (4) did not present

evidence that Kaczmarczyk had called Patrick on occasions other than on September 11,

2007.18

       A. Legal Framework

       To establish ineffective assistance of trial counsel, a defendant must demonstrate

that (1) counsel's representation fell below an objective standard of reasonableness under

prevailing professional norms; and (2) counsel's deficient representation resulted in

prejudice to him, i.e., there is a reasonable probability that, but for counsel's failings, the

result would have been more favorable to the defendant. (In re Jones (1996) 13 Cal.4th

552, 561.)

       A court's review of defense counsel's performance is a deferential one, and we

indulge a strong presumption that counsel's conduct falls within the wide range of


18    Kaczmarczyk also contends he was denied effective assistance of counsel because
counsel did not request some form of instruction pursuant to People v. Mullens (2004)
119 Cal.App.4th 648 (Mullens). We separately evaluate that claim below.

                                               17
reasonable professional assistance. (In re Jones, supra, 13 Cal.4th at p. 561.) It is

defendant's burden to show inadequacy of trial counsel, and reviewing courts defer to

counsel's reasonable tactical decisions in examining a claim of ineffective assistance.

(People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) Where the record affirmatively

shows counsel's omissions "resulted from an informed tactical choice within the range of

reasonable competence," we must affirm the conviction. (People v. Pope (1979) 23

Cal.3d 412, 425, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th

1048, 1081, fn. 10.) "[I]f the record contains no explanation for the challenged behavior,

an appellate court will reject the claim of ineffective assistance 'unless counsel was asked

for an explanation and failed to provide one, or unless there simply could be no

satisfactory explanation . . . .' " (People v. Cudjo (1993) 6 Cal.4th 585, 623.)

       "A defense counsel is not required to make futile motions or to indulge in idle acts

to appear competent" (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091), and is not

required "to make all conceivable motions or to leave an exhaustive paper trail for the

sake of the record. Rather, competent counsel should realistically examine the case, the

evidence, and the issues, and pursue those avenues of defense that, to their best and

reasonable professional judgment, seem appropriate under the circumstances." (People v.

Freeman (1994) 8 Cal.4th 450, 509.)

       B. Analysis

       Kaczmarczyk first contends trial counsel should have objected to evidence of

Kaczmarczyk's inappropriate behavior and sexual comments toward several of the

mothers of the alleged victims. However, the record is silent on why counsel did not

                                             18
object, and we therefore must reject the claim of ineffective assistance unless there could

be no satisfactory explanation for permitting this evidence. (People v. Cudjo, supra, 6

Cal.4th at p. 623.) We conclude counsel may well have made the reasonable tactical

decision to allow this evidence because it provided a platform for counsel to argue (as he

did in his closing argument) that Kaczmarczyk's sexual interest was towards adult

females, to undercut the prosecution's claim that he sexually abused infants and toddlers,

three of whom were male.

       Kaczmarczyk next contends counsel was ineffective because, after the court

dismissed the counts as to the other alleged victims, his counsel did not explicitly request

that the court strike the evidence pursuant to Evidence Code section 352. However,

counsel for Anita did argue, considering the dismissal of the counts as to Jack and Deven,

the evidence should not be admissible as Evidence Code section 1101, subdivision (b),

evidence. The court overruled the objection, citing Evidence Code sections 1101,

subdivision (b), and 1108. A ruling admitting evidence under Evidence Code sections

1101, subdivision (b), and 1108 necessarily contains an implied ruling that the evidence

"is not inadmissible pursuant to Section 352" (§ 1108; People v. Falsetta (1999) 21

Cal.4th 903, 916-920), and there is no requirement that a court explicitly state on the

record that it has engaged in the balancing test under section 352. (People v. Carpenter

(1999) 21 Cal.4th 1016, 1053.) Because a defense counsel is not required to "indulge in

idle acts" (People v. Torrez, supra, 31 Cal.App.4th at p. 1091) or "to leave an exhaustive

paper trail for the sake of the record" (People v. Freeman, supra, 8 Cal.4th at p. 509) to

provide competent representation, we are not persuaded by Kaczmarczyk's claim that his

                                             19
counsel was incompetent for not requiring the court to make explicit what was implicit in

the court's ruling.

       Kaczmarczyk also contends his counsel was ineffective because counsel did not

object to the prosecutor's comment, made during closing argument, that "putting a penis

in a little two-year-old's vagina is likely to produce great bodily injury and it did here."

However, counsel is not required to "indulge in idle acts" (People v. Torrez, supra, 31

Cal.App.4th at p. 1091), and any objection would have been futile. A prosecutor is given

wide latitude in closing argument and, as long as the argument amounts to a fair comment

on the evidence, a prosecutor has broad discretion to state his or her view on what the

evidence, and the logical inferences drawn from the evidence, has shown. (People v.

Welch (1999) 20 Cal.4th 701, 752.) The evidence from Dr. Murray was that Jane Doe's

hymen was torn, and an object larger than a finger caused significant injuries. The

injuries were consistent with attempted or completed intercourse with a penis, although it

was also consistent with the insertion of fingers if there had been multiple insertions.

Because the injuries were inflicted to a part of the genitalia commonly associated with

intercourse, the conclusion urged by the prosecutor--that it was penile insertion that

caused the injuries--was a fair comment on the evidence, and any objection would have

been futile.

       Kaczmarczyk finally contends his counsel was ineffective for not presenting

evidence that Kaczmarczyk phoned Patrick on days other than the day of Jane Doe's

injury, and therefore the phone call was not a unique event, as portrayed by Patrick's

testimony. However, while cross-examining Patrick, counsel did elicit his admission that

                                              20
Kaczmarczyk had called Patrick in the past. Moreover, Patrick's testimony was not that

receiving a phone call from Kaczmarczyk was unusual, but was instead that it was

unusual for him to call Patrick that late at night. The foregoing analysis convinces us

Kaczmarczyk was not deprived of effective assistance of counsel.

                                             IV

                                 THE MULLENS CLAIM

       Kaczmarczyk asserts the court's refusal to allow the defense to inform the jury of

the acquittal on counts 3, 4, 5 and 6 was error under Mullens, supra, 119 Cal.App.4th

648, and the error warrants reversal.

       A. Background

       Kaczmarczyk was charged with four counts (counts 3, 4, 5 and 6) involving sexual

abuse of Deven and Jack, and the jury heard the evidence allegedly linking Kaczmarczyk

to those alleged offenses. After the close of the prosecution's case, the court granted

Kaczmarczyk's section 1118.1 motion to dismiss those charges. However, the court ruled

the evidence admitted as to those counts would remain available under Evidence Code

section 1108 because of the different standard of proof under Evidence Code section

1108, and that it would fashion an appropriate modification to the jury instructions to

guide the jury's application of the evidence concerning Deven and Jack as to the

remaining counts.

       Later that day, the parties discussed the jury instructions, and the court then began

instructing the jury, and included an instruction conveying the principles of Evidence

Code section 1108. Neither party requested, nor did the court give, any form of

                                             21
instruction under Mullens. The court, after informing the jury it would complete its

instructions the following day, then released the jury for the day. After the jury was

excused, the court informed the parties it would give CALCRIM No. 205, which

addresses charges removed from the jury's consideration.19 Although neither defense

counsel requested either an instruction under Mullens or for leave to introduce evidence

of the acquittals, Kaczmarczyk's counsel did ask whether CALCRIM No. 205 barred the

defense from arguing those counts were dismissed because the prosecutor "did not meet

the burden of proof" as to those counts. The court stated CALCRIM No. 205 barred the

defense "completely from . . . even referencing that. You treat them as though they

weren't ever there." The court acknowledged the evidence would be argued as Evidence

Code section 1108 evidence "[b]ut don't say, these are the same charges that you used to

have against both of the defendants, but the judge didn't think there was enough evidence

to give them to you, and that's why they're now [Evidence Code sections] 1108 and 1101

[evidence]."

       B. Legal Principles

       The jury was presented with "other crimes" evidence.20 When the other crimes

evidence involves conduct for which the defendant has been charged but acquitted in a



19     The jury was instructed: "Counts 3, 4, 5, and 6, and their attendant allegations, no
longer need to be decided in this case. Do not speculate or consider in any way why you
no longer need to decide those counts."

20     The ordinary rules governing the admission of other crimes evidence are well
established. Evidence of other crimes or bad acts is ordinarily inadmissible when it is
offered to show that a defendant had the criminal disposition or propensity to commit the
                                            22
prior criminal proceeding, the so-called "Griffin rule," derived from People v. Griffin

(1967) 66 Cal.2d 459, places additional conditions on the admission of that evidence. In

Mullens, supra, 119 Cal.App.4th 648, we summarized the Griffin rule as follows:

          "In sum, [Griffin], and its progeny, as they pertain to this case, stand
          for the proposition . . . that if a trial court permits the prosecution to
          present evidence that the defendant committed one or more similar
          offenses for which he or she is not charged in the current
          prosecution, the trial court must also allow the defense to present
          evidence of the defendant's acquittal, if any, of such crimes, and
          failure to allow such acquittal evidence constitutes error." (Mullens,
          supra, 119 Cal.App.4th at pp. 664-665.)

       Additionally, we recognized in Mullens that the trial court in such a case is

required to admit evidence of the defendant's acquittal, because evidence of the acquittal

of the previously charged offense "was admissible as a matter of law under [Griffin] and

its progeny." (Mullens, supra, 119 Cal.App.4th at p. 669.) Indeed, Mullens specifically

rejected the People's assertion that a trial court nevertheless retains discretion under

section 352 to exclude Griffin evidence, explaining that "[f]or the reasons already

discussed, if the court in conducting its section 352 analysis decides that the section 1108

propensity evidence should be admitted, the court must also admit the evidence of

acquittal to rebut the propensity evidence. The admission of acquittal evidence under the

Griffin rule to rebut the propensity evidence assures fundamental fairness and protects the



crime charged. (Evid. Code, § 1101, subd. (a).) However, evidence of other sexual
crimes is admissible to prove a disposition to commit such acts (Evid. Code, § 1108), as
long as it not inadmissible under Evidence Code section 352. The court permitted the use
of the other crimes evidence under Evidence Code sections 1108 and 1101, and
Kaczmarczyk does not claim on appeal that the admission of such evidence was an abuse
of discretion.

                                              23
defendant's due process right to a fair trial and the right to present a defense." (Mullens,

at p. 670, fn. 9, italics added.)

       C. Analysis

       We conclude that, although Kaczmarczyk was deprived of effective assistance of

counsel because counsel did not interpose Mullens as authority for permitting evidence

and argument concerning the acquittals on the other alleged crimes committed against

Deven and Jack,21 it is not reasonably probable Kaczmarczyk would have obtained a

more favorable result had counsel interposed that evidence. (In re Jones, supra, 13

Cal.4th at p. 561.)

       The only supplemental information that would have been available to the jury had

counsel timely interposed Mullens was that the evidence concerning Deven and Jack

(which the jury heard) did not satisfy the court beyond a reasonable doubt that

Kaczmarczyk committed a crime against Deven or Jack. However, this information

would not have precluded the jury from employing the evidence as to Deven and Jack in

considering the remaining criminal charges, provided the jury nevertheless concluded

from a preponderance of the evidence that Kaczmarczyk committed offenses against


21     Kaczmarczyk suggests the issue was preserved because the court sua sponte
should have instructed the jury in some fashion concerning the acquittals. While Mullens
and Griffin authorize introduction of evidence of the acquittals, neither imposes a sua
sponte instructional obligation on the trial court, and we decline to impose one here. We
apprehend the burden is on counsel to raise the Griffin/Mullens evidentiary caveat when
other crimes evidence is introduced, which counsel did not do here. Because we cannot
imagine any informed tactical reason for not raising the Griffin/Mullens evidentiary
authorization, we conclude the issue may be raised on direct appeal within the rules
governing claims alleging ineffective assistance of counsel.

                                             24
Deven and Jack. Indeed, the jury was properly instructed that any consideration of the

evidence concerning Deven and Jack was conditioned on the jury's predicate

determination that the prosecution proved by a preponderance of the evidence that

Kaczmarczyk had committed offenses against Deven and Jack. These instructions did

not offend the principles outlined in Mullens or Griffin.

       The defect here was thus not the result of instructional error, but was instead

evidentiary in nature: counsel's failure to raise Mullens resulted in the absence of

evidence concerning the ruling on Kaczmarczyk's section 1118.1 motion. The erroneous

creation of such an evidentiary lacuna is tested for prejudice under People v. Watson

(1956) 46 Cal.2d 818, 836. (Mullens, supra, 119 Cal.App.4th at p. 669.) Applying

Watson, we are convinced it is not reasonably probable Kaczmarczyk would have

achieved a more favorable result had counsel raised Mullens and thereby admitted

evidence of the acquittal. The core purpose for admitting evidence of the acquittal under

Mullens is to give the jury the full picture concerning the other crimes evidence and

thereby insure the jury "reach[es] a verdict that is based not on who the defendant is, but

on what the defendant did." (Id. at p. 666.) Here, the undisputed physical evidence was

that someone penetrated Jane Doe's vagina, and the evidence was strong that this abuse

occurred while Jane Doe was in the custody of Kaczmarczyk and Anita. Even though the

"other crimes" evidence was not tempered by the evidence of the acquittals, the jury did

not convict Kaczmarczyk of all of the remaining charges: it acquitted Kaczmarczyk of

the alleged crimes against the male victim (even though the other crimes evidence all

involved male victims) while convicting Kaczmarczyk of the crimes involving sexual

                                             25
penetration of a female victim. This verdict convinces us that, even without the evidence

that Kaczmarczyk had been acquitted of the alleged crimes against two other male

victims, the jury did reach its "verdict based not on who [Kaczmarczyk] is, but on what

[Kaczmarczyk] did" (id. at p. 666), and therefore there is no reasonable probability that,

but for counsel's failings, the result would have been more favorable to Kaczmarczyk.

(In re Jones, supra, 13 Cal.4th at p. 561.)

                                              V

                                 CUMULATIVE ERROR

       Kaczmarczyk contends the cumulative errors in his trial denied him a fair trial,

even if considered individually each was not prejudicial. However, we conclude there

were not multiple errors and therefore there is no basis for the cumulative error assertion.

                                      DISPOSITION

       The judgment is affirmed.



                                                                           McDONALD, J.

WE CONCUR:


HUFFMAN, Acting P. J.


NARES, J.




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