P. v. Chapin

Filed 5/15/08 P. v. Chapin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.

Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Edward Dwight Chapin of manufacturing a controlled substance (Health and Saf. Code, 11379.6), possession of ephedrine and pseudoephedrine with the intent to manufacture methamphetamine (Health and Saf. Code 11383, subd. (c)(1)),[1] and possession of a controlled substance for the purpose of sales (Health and Saf. Code, 11378). Defendant admitted his prior convictions, and the court sentenced him to 20 years in state prison.

Defendant challenges his conviction on nine grounds. He contends: (1) the court erred in denying his motion to quash and traverse the search warrant; (2) the court erroneously denied his motion to disclose the identity of a confidential informant; (3) the court abused its discretion by admitting evidence of one of his prior convictions; (4) the prosecutor committed misconduct; (5) the prosecutor violated his discovery obligations under Penal Code section 1054.1; (6) the court improperly denied his request to re-open his case; (7) the jurys consideration of certain evidence constituted juror misconduct; (8) his trial counsel rendered ineffective assistance of counsel; and (9) the court denied his motion for a new trial without making the proper inquiries into defense counsels performance.

We affirm.

FACTS

We provide only a brief overview of the facts here. We provide additional factual and procedural details as germane to the discussion of defendants specific claims.

On May 17, 2002, Garden Grove police officers executed a search warrant at defendants residence in Huntington Beach.[2] During the search, the officers found materials and equipment associated with the manufacture of methamphetamine, including pseudoephedrine; acetone; hydrogen peroxide; red phosphorous; antifreeze; and mason jars containing biphasic liquids created during the methamphetamine manufacturing process. Officers also found a briefcase containing a cell phone, a digital scale, 10 grams of methamphetamine, plastic baggies, and a letter signed, Edward.

As police officers searched the house, one officer interviewed defendant. Defendant initially denied being involved with the methamphetamine lab and said someone else was running it. Later, however, he admitted he had been awake at the house for several days, cooking and using methamphetamine.[3] Defendant acknowledged his fingerprints might be on the items used to manufacture the methamphetamine. As they talked, the officer noticed defendant had stains on his shoes which appeared to be consistent with chemicals used to manufacture methamphetamine.

At trial, defendant testified he and his then-fiance decided to rent a room at the house in Huntington Beach only days before the police executed the search warrant. Defendant denied knowing about the methamphetamine lab and claimed his admissions to the police on the day of the incident were lies. Defendant admitted he was familiar with the methamphetamine manufacturing process because he had cooked, and used, methamphetamine in the past.

DISCUSSION

The Court Properly Denied Defendants Motion to Quash and Traverse the Search Warrant

Before trial, defendant moved to quash and traverse the search warrant, arguing the affidavit in support of the warrant contained false statements and failed to provide probable cause for the search. Following an in camera hearing with only the affiant and the prosecutor present, the court denied the motion.

To prevail on a motion to traverse a search warrant, the defendant must demonstrate: (1) the affidavit included a false statement made knowingly and intentionally, or with reckless disregard for the truth; and (2) the allegedly false statement was necessary to the finding of probable cause. (People v. Luera (2001) 86 Cal.App.4th 513, 524-525 (Luera); Franks v. Delaware (1978) 438 U.S. 154, 155-156; People v. Hobbs (1994) 7 Cal.4th 948, 974 (Hobbs).) If the court finds the search warrant affidavit was not materially false, the court simply reports this conclusion to the defendant and enters an order denying his [or her] motion to traverse the warrant. (Luera, supra, 86 Cal.App.4th at p. 525; see also Hobbs, supra, 7 Cal.4th at p. 974.) If the defendant moves to quash a search warrant, the reviewing court must determine whether, under the totality of the circumstances presented to the magistrate, there was a fair probability that contraband or evidence of a crime would be found at the location named in the warrant. (Luera, supra, 86 Cal.App.4th at p. 525; Hobbs, supra, 7 Cal.4th atp. 975.)

Defendant asks this court to review the sealed portion of the affidavit in support of the search warrant to determine whether there was probable cause for the search, and whether the court should have disclosed the identity of a confidential informant. We have reviewed the sealed portion of the affidavit and the transcript of the in camera hearing. The court correctly determined the sealed portion of the affidavit supplied probable cause for the search; did not contain any material misrepresentations or omissions; set forth a fair probability contraband would be found at the residence; and did not show that the confidential informant could have given evidence that might have resulted in defendants exoneration. (People v. Lawley (2002) 27 Cal.4th 102, 159-160 (Lawley).)

The Court Properly Denied Defendants Motion to Disclose the Identity of a Confidential Informant

Defendant also moved, before trial, to disclose the identity of a confidential informant. (Evid. Code, 1041, 1042, subd. (d).) In support of the motion, defense counsel submitted a declaration averring he had reviewed the unsealed portion of the affidavit in support of the search warrant and concluded it was based on statements made by [an] informant because the methamphetamine lab was completely ensconced in the garage portion of the dwelling and was not visible from the outside of the house . . . . The court denied the motion without an in camera hearing because defendant did not make a sufficient showing to get us to the in camera hearing.

Defendant claims the trial court erred by denying his motion. We review the courts ruling de novo because the California Supreme Court has not answered the question of whether a trial courts denial of a motion to disclose the identity of a confidential informant is reviewed de novo or for abuse of discretion. (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on other grounds in People v. Edwards (1991) 54 Cal.3d 787, 835.)

When a defendant seeks information which might lead to the disclosure of the identity of a confidential informant, the public entity is entitled to invoke the privilege of nondisclosure of the identity of an informer under Evidence Code section 1041. (People v. McCarthy (1978) 79 Cal.App.3d 547, 553 (McCarthy).) Once the public entity invokes the privilege, the court may hold an in camera hearing to determine whether the informer might be a material witness on the issue of guilt. (Id.at p. 553; see also Evid. Code, 1042, subd. (d).)

Before an in camera hearing is appropriate, however, [i]t is incumbent on the defendant to make a prima facie showing for disclosure . . . . (People v. Oppel (1990) 222 Cal.App.3d 1146, 1152 (Oppel).) As our high court has explained, the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant. [Citation.] An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the burden of adducing some evidence on this score. (Lawley, supra, 27 Cal.4th at p. 159.) Defendants showing must rise above the level of sheer or unreasonable speculation, and reach at least the low plateau of reasonable possibility. [Citation.] (Luera, supra, 86 Cal.App.4th at p. 526.)

The People argue the courts denial of defendants motion without conducting an in camera hearing was proper under Oppel, supra, 222 Cal.App.3d at p. 1153, because defendant did not submit any evidence of the confidential informants materiality. In Oppel, the court held that an affidavit of an attorney for a party, made on information and belief, cannot, as a matter of law, be construed to be evidence, and thus, such an affidavit . . . cannot constitute the requisite factual foundation for the prima facie showing mandated on the issue of disclosure of a confidential informants identity under [Evidence Code] section 1042[, subdivision] (d). (Oppel, supra, 222 Cal.App.3d at p. 1153.)

Here, defendants motion alleged, based on defense counsels information and belief, the information supporting the search warrant affidavit came from an informant, and the informant was a percipient witness to who was actually making the methamphetamine. But it is well settled an informant is not a material witness when he or she simply points the finger of suspicion toward a person who has violated the law. (People v. Wilks (1978) 21 Cal.3d 460, 469.) The very most the informant could say was who was manufacturing the methamphetamine at a given time; the informant could never eliminate defendant as one of the people manufacturing methamphetamine at that location. Under Oppel, defense counsels affidavit did not establish a prima facie showing under Evidence Code section 1042, subdivision (d). (See Oppel, supra, 222 Cal.App.3d at p. 1153.) Accordingly, the court properly denied the motion without holding an in camera hearing.

The Admission of Defendants Prior Conviction Was Not an Abuse of Discretion

Before trial, the prosecution moved to admit evidence regarding defendants 1997 methamphetamine-related conviction.  (Evid. Code, 1101, subd. (b).)[4] The People argued the prior conviction was relevant to defendants intent to manufacture methamphetamine and to his knowledge that the materials found in the house were used for that purpose. Defense counsel contended defendants knowledge was irrelevant, because his defense was not that he did not know what the materials in the house were used for, but instead that they did not belong to him. The court granted the prosecutions motion, concluding the evidence was admissible to show knowledge, common plan, and intent. The court also concluded the probative value of the evidence outweighed any prejudice to defendant. (Evid. Code, 352.)

At trial, Garden Grove police officers testified they served a search warrant at defendants residence in Garden Grove in 1996. They testified they entered the residence which had a strong chemical odor consistent with the manufacture of methamphetamine and saw defendant dumping chemicals down the bathtub drain and trying to flush methamphetamine down the toilet. The officers searched the house and found chemicals and equipment used to manufacture methamphetamine. Defendant denied being involved and claimed the methamphetamine lab belonged to his friend. Later, however, defendant admitted his involvement and conceded he and his friend were manufacturing methamphetamine in the garage. Some time in 1997, defendant pleaded guilty to various methamphetamine-related crimes.

Defendant argues the court abused its discretion when it admitted evidence relating to his prior conviction. We disagree. The prior conviction was relevant to prove defendants intent to manufacture methamphetamine. The prior conviction was also relevant to show defendants knowledge that the materials in the garage were used to manufacture methamphetamine. (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn 2.) Because defendant pleaded not guilty, he placed all issues including his intent and knowledge in dispute. (See People v. Roldan (2005) 35 Cal.4th 646, 705-706.) Defendant concedes the two episodes were very similar; accordingly, the prior conviction was sufficiently similar to the current prosecution to support the inference that defendant likely harbored the same intent in each instance. (People v. Cole (2004) 33 Cal.4th 1158, 1194 (Cole); see also People v. Denis (1990) 224 Cal.App.3d 563, 567 [evidence of prior robberies admissible where defendants intent to rob was the central disputed issue at trial]; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1443 [where defendant was charged with stealing former employers computer code but contended his possession was inadvertent, trial court properly admitted evidence of defendants earlier unauthorized possession of another companys computer code].) As a result, the court did not abuse its discretion in admitting defendants prior conviction.[5]

The courts conclusion that the prior conviction evidence was more probative than prejudicial was similarly not an abuse of discretion. Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Cole,supra, 33 Cal.4th at p. 1195.) Undue prejudice has a distinct meaning. It refers to evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Samuels (2005) 36 Cal.4th 96, 124.) Undue prejudice is not synonymous with evidence that is merely damaging to the defendant. (People v. Bolin (1998) 18 Cal.4th 297, 320.) The evidence here was certainly damaging to defendant, but we cannot conclude it uniquely tend [ed] to evoke an emotional bias against [defendant],while having only slight probative value with regard to the issues. (People v. Samuels, supra, 36 Cal.4th at p. 124.) The prior conviction was undeniably similar to the current charges, and was relevant to defendants intent.

Defendant Cannot Prevail on his Prosecutorial Misconduct Claim

As discussed above, a Garden Grove police officer testified at trial about serving a search warrant at defendants house in 1996. During direct examination, the prosecutor asked the officer why he and his colleagues secured defendants house before obtaining and serving the search warrant. Before the officer could respond, defense counsel objected on relevancy and due process grounds, and on the grounds that the officers testimony would be more prejudicial than probative under Evidence Code section 352. The court overruled the objections and instructed the jury that it could consider the officers testimony only to explain the officers conduct. The officer then answered the question and testified the officers secured the house before obtaining the search warrant because they had information: (1) there was an operational methamphetamine lab in the house; (2) there was a child in the house; and (3) the house was near a school. Defense counsel objected again, and the court instructed the jury to disregard the answer and not to consider it for any purpose.

Defendant moved for a mistrial, which the court denied. The court noted the parties had discussed some child endangerment charges at a pretrial hearing, but determined the officers reference to some information [that] a child may reside in some house where methamphetamine may be present did not deprive defendant of a fair trial because the court gave the jury a limiting instruction before the officer answered the question, and then struck the testimony after the officer testified.

Although prosecutorial misconduct typically occurs during argument, it is also misconduct to deliberately offer inadmissible evidence or to ask questions calling for inadmissible and prejudicial answers. (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial 555, p. 792, see also People v. Warren (1998) 45 Cal.3d 471, 481-482 [A prosecutor has the duty to guard against statements by his [or her] witnesses containing inadmissible evidence. [Citations.] If the prosecutor believes a witness may give an inadmissible answer during his [or her] examination, he [or she] must warn the witness to refrain from making such a statement].)

Defendant argues the court admonished the prosecutor at a pretrial hearing not to introduce evidence that the 1996 episode involved manufacturing methamphetamine at a residence that was near a school or where children resided. But the portion of the record cited by defendant does not support this assertion and neither party has provided us with the portion of the record where the parties apparently discussed child endangerment charges. Thus, we cannot, as defendant urges, conclude the prosecutor deliberately violated a court order, or that he intentionally introduced evidence the court had ruled was inadmissible. We question whether the prosecutors question about why the officers secured the house was relevant but, on the record before us, we cannot conclude the prosecutor intentionally solicited inadmissible evidence. (People v. Valdez (2004) 32 Cal.4th 73, 125.)

Even if the prosecutor somehow violated his duty to admonish the police officer, defendant has not established prejudice. We fail to see how testimony about the presence of children at or near defendants house in 1996 would prevent defendant from receiving a fair trial in the current prosecution, particularly where defendant, on direct examination, volunteered that Millers five-year-old daughter lived at the house where he was arrested in Huntington Beach in 2002 and that the house was so messy it wasnt fit for humans, let alone having a five-year-old child there. Moreover, any possible prejudice to defendant concerning the presence of children at or near his residence in 1996 was eliminated when the court struck the testimony and directed the jury not to consider it.

Penal Code Section 1054.1 Does Not Provide a Basis for Reversing Defendants Conviction

Defendants next contention is the prosecutions failure to disclose the existence of a drugstore receipt found in defendants briefcase violates Penal Code section 1054.1 (section 1054.1) and constitutes reversible error. As noted above, a police officer found a briefcase in defendants residence containing, inter alia, a cell phone, a digital scale, 10 grams of methamphetamine, plastic baggies, and a letter signed, Edward. When the prosecutor moved to admit the briefcase into evidence, defense counsel objected to some of the items in the briefcase and contended they were irrelevant and unduly prejudicial. The court ordered the attorneys for both parties to go through the briefcase to see if they could agree to remove any items that . . . could be prejudicial if the jury sees them. The attorneys examined the briefcase and removed various items. The receipt was not one of those items. At trial, defendant testified the briefcase belonged to him and admitted everything in the briefcase, except the methamphetamine, belonged to him.

During deliberations, the jury found the receipt in defendants briefcase. The receipt (dated May 15, 2002, two days before the police executed the search warrant) documented the purchase of 96 packets of pseudoephedrine. In a note, the jury asked the court whether it could consider the receipt as evidence. Defendant complained he had never seen the receipt and moved for a mistrial on the grounds that the jury erroneously received evidence that they shouldnt have received. The court explained that attorneys for both parties had ample opportunity to examine the contents of the briefcase and that neither attorney found the receipt. The court then denied defendants motion for a mistrial and informed the jury it could consider the receipt as evidence.

Defendant contends the prosecutions failure to disclose the receipt constitutes a violation of section 1054.1, subdivision (B). [6] Section 1054.1 requires the prosecution to disclose the following evidence in the possession of the prosecuting attorney or the prosecuting attorney knows it to be in the possession of the investigating agencies. [] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [] (b) Statements of all defendants. [] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [] (e) Any exculpatory evidence. [] (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial. . . . The prosecutors statutory duty under section 1054.1 is distinct from his or her constitutional obligation to disclose favorable material evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83, 87. (See People v. Superior Court (Barrett)(2000) 80 Cal.App.4th 1305, 1314; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crim. Trial, 551, p. 786.)

Defendant cannot seek solace in the prosecutors apparent violation of section 1054.1. To prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right . . . , the defendant must establish that [the information not disclosed was exculpatory and that] there is a reasonable probability that, had the evidence been disclosed . . . , the result of the proceedings would have been different. (People v. Bohannon (2000) 82 Cal.App.4th 798, 806-807 (Bohannon), overruled on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.)

Defendant cannot satisfy his burden here. First, the evidence was certainly not exculpatory, as it documented the purchase of pseudoephedrine. Second, defendant cannot demonstrate there is a reasonable probability that, had the receipt been disclosed earlier, the result of the proceedings would have been different. (Bohannan, supra, 82 Cal.App.4th at pp. 806-807.) Even if defendant were able to show that the receipt was not his, or that someone else bought the pseudoephedrine, there was a significant amount of evidence demonstrating defendant possessed pseudoephedrine and, as the court correctly noted, the receipt was merely a snowflake in an avalanche of evidence against defendant. As such, the prosecutions failure to disclose the receipt before trial is not a basis for reversal. (See People v. Fauber (1992) 2 Cal.4th 792, 829 [a mere possibility that undisclosed evidence may have helped the defense or affected the trials outcome is not sufficient].)

The Denial of Defendants Motion to Reopen His Case Was Not an Abuse of Discretion

After the jury discovered the receipt, defendant moved to reopen his case and the court denied his request. Defendant argues the courts refusal to permit him to reopen his case was an abuse of discretion. To determine whether the court abused its discretion, we consider the following factors: (1) the stage the proceedings had reached when the motion was made; (2) the defendants diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520 (Funes); see also Pen. Code, 1093, 1094.)

We find no abuse of discretion. First, defendants request came at a late stage in the trial, when the jury had already begun to deliberate. Second, defense counsel did not exercise due diligence to locate the receipt before trial. As discussed above, defense counsel objected to some of the items in the briefcase; in response, the court ordered the parties to go through the briefcase and remove any inflammatory or prejudicial items. As in Funes, defense counsel had full access to the evidence before trial, but for tactical reasons or because of inadvertence and neglect he did not introduce the evidence. (Funes, supra, 23 Cal.App.4th at p. 1521.) The significance of the receipt to the issues in the case, however, was slight, because the prosecution had already established that the police found hundreds of pseudoephedrine tablets in defendants residence. Applying these factors, the court did not abuse its discretion in denying defendants motion to reopen. (People v. Marshall (1996) 13 Cal.4th 799, 836 [no abuse of discretion in refusing to allow defense to reopen where prosecutor had begun summation and relevance of proffered evidence was slight].)

The Jurys Consideration of the Receipt in Defendants Briefcase Did Not Constitute Juror Misconduct

Next, defendant contends the jurys consideration of the receipt in defendants briefcase constitutes juror misconduct under People v. Nesler (1997) 16 Cal.4th 561, 578 (Nesler) where, during the sanity phase of a murder trial, a juror received information about the defendant from a woman she had met in a bar and, without telling the court, shared the information with the rest of the jury during deliberations. (Id. at p. 572.) The Supreme Court held [j]uror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias. (Id. at p. 578.)

There is no juror misconduct here. As discussed above, the receipt was inside the briefcase, which had been admitted into evidence. This is not a situation like the one in Nesler, where a juror obtained information that was not part of the evidence received at trial. (Nesler, supra, 16 Cal.4th at p. 578.) At best, the evidence here was inadvertently given to the jury. (See People v. Cooper (1991) 53 Cal.3d 771, 836 (Cooper).) It is well settled that when a jury innocently considers evidence it was inadvertently given, there is no misconduct. (Ibid.) Rather, there is only ordinary error because there was no improper outside influence[.] (Id. at p. 836, fn. 12.) And with ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. (People v. Clair (1992) 2 Cal.4th 629, 668 [unredacted versions of an audiotape recording and transcript of defendants conversation with an undercover police officer were sent into jury room on the mistaken belief that they had been received in evidence (id. at p. 665); error was not prejudicial].)

Assuming there was error here, defendant cannot demonstrate prejudice. As discussed above, the evidence against defendant was considerable and compelling. (See, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1213 [jury mistakenly received evidence of defendants probationary status; concluding error was not prejudicial and noting the [p]assing reference to [defendants] probationary status and his prior conviction for a nonviolent offense was overshadowed by the considerable evidence against defendant (id. at p. 1214)]; Cooper, supra, 53 Cal.3d at p. 835 [jurys inadvertent receipt of a portion of a hearing transcript from a prior prosecution was not prejudicial; [t]he exhibit had been admitted into evidence, albeit inadvertently. The jury was thus justified in reading it]; People v. Rose (1996) 46 Cal.App.4th 257, [jurys receipt and review of police report detailing defendants prior uncharged misconduct was harmless error].

Defendants Ineffective Assistance of Counsel Claim Fails

Defendants eighth ground for reversal is his trial counsel deprived him of his Sixth Amendment right to effective assistance of counsel by: (1) failing to stipulate to the knowledge and intent elements of the charges to prevent the admission of his prior conviction into evidence; (2) making a final argument that was contrary to the facts; and (3) failing to locate the receipt in defendants briefcase.

There are two components to an ineffective assistance of counsel claim: deficient performance of counsel and prejudice to the [defendant]. (In re Cox (2003) 30 Cal.4th 974, 1019 (Cox).) We need not determine whether trial counsels performance was deficient because we conclude defendant was not prejudiced by counsels alleged deficiencies. (Id. at p. 1020 [court deciding ineffective assistance of counsel claim need not address both components of claim if defendant makes insufficient showing on one]; see also People v. Vargas (2001) 91 Cal.App.4th 506, 536 [same].)

Defendants first argument is defense counsel should have stipulated that defendant had the requisite knowledge and intent. According to defendant, stipulating to the mental elements of the charged crimes would have precluded the prosecution from introducing evidence of defendants prior conviction and thereby avoided subjecting [defendant] to improper and unnecessary prejudice. Defendants admission that he knew about the methamphetamine lab and had the intent to manufacture methamphetamine, however, would be tantamount to pleading guilty, because the prosecution would need only to establish defendant possessed ephedrine, pseudoephedrine, and methamphetamine (all of which police found at his house). We fail to see how defendant would have received a more favorable outcome if he had stipulated to knowledge and intent. Accordingly, defendant cannot establish prejudice from defense counsels tactical decision not to stipulate to the mental elements of the charged crimes.

Next, defendant complains defense counsel mistakenly argued the police did not, as the prosecution suggested, find defendants tax form next to a large amount of pseudoephedrine pills in defendants house. Contrary to defense counsels argument, the police did find the tax form, and it was admitted into evidence. Defendant argues that defense counsels mistake destroyed [counsels] credibility with the jury. But what is conspicuously absent from defendants brief is any argument about how the result of the trial would have been different had defense counsel not made that honest mistake. Nor was defendant prejudiced by defense counsels failure to find the receipt in defendants briefcase. Defendant has not shown how he would have received a more favorable outcome if defense counsel had located the receipt earlier.

Defendants New Trial Claim Fails

Before sentencing, defendant moved for a new trial, claiming his trial counsel rendered ineffective assistance of counsel. Defense counsel filed a short memorandum of points and authorities in support of the motion and attached defendants 16-page, single-spaced declaration as an exhibit. The declaration described, in great detail, instances of defense counsels alleged incompetence, ranging from counsels failure to put defendants fingerprint expert on the stand (who would testify that only one of the latent fingerprints found by police belonged to defendant) to counsels lack of knowledge that defendant had loaned his briefcase to Sawyer, who put the methamphetamine in it. Defendant also complained that defense counsels opening statement and closing argument were in direct conflict with the evidence and that counsel did not provide him with copies of the documents filed in the case. At the hearing on the motion, defense counsel explained his statements during closing argument. When the court gave defendant an opportunity to argue, defendant began reading from a 30-page, single-spaced letter he had written. At the courts request, defendant submitted the letter and did not read it into the record. The court read the letter and then denied the motion for new trial.

Relying on People v. Stewart (1985) 171 Cal.App.3d 388, 395 (Stewart),[7] defendant argues the court improperly denied his new trial motion without requiring his counsel to explain the claimed deficiencies in his performance. Defendant does not claim the denial of the motion was erroneous, only that the court failed to inquire into defendants inadequate representation claims before ruling on the motion.

In Stewart, the defendant directed his attorney to move for a new trial based on the attorneys alleged incompetence. (Stewart, supra, 171 Cal.App.3d at p. 393.) The motion, however, did not state why the attorney was incompetent. (Ibid.) At the hearing on the motion, defense counsel asked the court to appoint new counsel to argue the motion, but the court denied the motion without appointing new counsel. (Id. at p. 394.) The appellate court reversed and remanded. It held: Where a defendant requests the substitution of new counsel after trial in order to assist in the preparation of a motion for new trial based on the inadequacy of trial counsel, we believe it imperative that, as a preliminary matter, the trial judge elicit from the defendant, in open court or, when appropriate, at an in camera hearing, the reasons he believes he was inadequately represented at trial. (Stewart, supra, 171 Cal.App.3d at p. 395.) The Stewart court also held [o]nce a trial judge is informed of the facts underlying a defendants claim of inadequate assistance, he [or she] is then in a position to intelligently determine whether he [or she] may at that point fairly rule on the defendants motion for a new trial, or whether new counsel should be appointed to more fully develop the claim of inadequate representation. (Id. at pp. 395-396.)

Stewart is inapposite for the simple reason that defendants new trial motion stated why defense counsel was allegedly incompetent and described the incompetence in great detail. Unlike the trial court in Stewart, the court here was informed of the facts underlying . . . defendants claim of inadequate assistance. (Stewart, supra, 171 Cal.App.3d at p. 395.) As a result, the court was in a position to rule on defendants motion. (People v. Gay (1990) 221 Cal.App.3d 1065, 1069.) Any further inquiry was therefore unnecessary.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

FYBEL, J.

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[1] The Legislature amended Health and Safety Code section 11383, effective January 1, 2007. (Stats. 2006, ch. 646, 3, p. 4024.) Former subdivision (c)(1) is now designated section 11383.5, subdivision (b)(1).  We use the former subdivision designation because this matter was heard in the lower court before the effective date of the amendment and because the record reflects the statutory designations then in effect.

[2] Margaret Sawyer, Julianne Miller, and Millers five-year-old daughter also lived at the house. Sawyer had sold drugs to defendant, and Miller was defendants friend.

[3] In one stage of the methamphetamine manufacturing process, pseudoephedrine, red phosphorus, and iodine are mixed together, cooked, and filtered, resulting in an acidic liquid which contains methamphetamine. Other chemicals are then added and the mixture is heated again, leaving methamphetamine as the finished product.

[4] Evidence of prior criminal acts is admissible under Evidence Code section 1101, subdivision (b) when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . . ), but not to prove the defendant carried out the charged crimes in conformity with a character trait. (People v. Lewis (2001) 25 Cal.4th 610, 636.)

[5] Having concluded the court properly admitted defendants prior conviction to establish intent, we need not determine whether the prior conviction was also admissible to prove knowledge and common plan.

[6] We assume defendants reference to subdivision (B) is a typographical error, as section 1054.1 does not contain that subdivision. The only subdivision that could arguably encompass the receipt would be subdivision (c), which requires the prosecutor to disclose relevant real evidence seized or obtained during the investigation. (Pen. Code 1054.1, subd. (c).)

[7]Stewart was disapproved of on other grounds in People v. Smith (1993) 6 Cal.4th 684, 692-694.)