Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD180349, Laura Palmer Hammes and Charles R. Gill, Judges.
HALLER, J.
John Cunningham appeals from a judgment convicting him of manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, and possessing hydriodic acid with intent to manufacture methamphetamine. He contends (1) the trial court erred in admitting prior offense evidence, (2) the evidence is insufficient to support the jury's verdicts, and (3) the trial court erred in denying his motion for new trial. He also asserts the trial court erred at the hearing on his motion for new trial when it denied his request to substitute new retained counsel and to continue the hearing. We reject his arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Cunningham came to the attention of the authorities after he was observed at a store over a period of several months repeatedly purchasing unusually large numbers of medicine packets containing pseudoephedrine. After investigating the matter and obtaining a search warrant, the authorities found items and solutions at his residence showing he had engaged in the manufacture of methamphetamine.
Cunningham was found in possession of common household products that can be used to manufacture methamphetamine from pseudoephedrine, as well as substances particularly associated with methamphetamine manufacture. These latter substances included methamphetamine in hydriodic acid in a bottle in the bathroom, methamphetamine residue on a reddish-stained toilet seat, and a powdery coating of methamphetamine in a baking dish in the living room.
On October 31, 2003, loss prevention employee Stan Schwarz observed Cunningham at a Wal-Mart store. Schwarz recognized Cunningham as an individual who had come to the store about three or four times in the past six months and purchased unusually large quantities of medicine containing pseudoephedrine. On these previous occasions, Cunningham selected three packages of the medicine, paid for them, left the store, and went to his car. About five minutes later, he reentered the store and purchased three more packages of the medicine at a register in a different department. This strategy circumvented the store's policy of allowing the purchase of only three packages of medicine containing pseudoephedrine. Cunningham typically repeated this behavior several times, purchasing about 12 to 15 packages of the medicine during a visit to the store. When Cunningham engaged in this same behavior on October 31, 2003, the store reported his behavior to a hotline set up by the Drug Enforcement Administration (DEA).
After receiving the report from the store, the DEA conducted four searches of the trash at Cunningham's residence, in November and December 2003 and January 2004. These searches revealed two glass test tubes containing trace amounts of methamphetamine and several empty containers of common household items that could be used to manufacture methamphetamine. Additionally, the authorities found a note that appeared to refer to the burying of materials related to methamphetamine production (i.e., red phosphorous and iodine) in a canyon behind Cunningham's home.
The note stated: " 'I took all the red iodine & pills way down in the canyon and buryed it good. Now in less then a week I am going to have to . . . dig it up again. . . . I did 60 grams ephed. . . . Started 75 pills. What we did earlyer was the testing to see if good.' "
At about 10:45 a.m. on January 29, 2004, the authorities executed a search warrant at Cunningham's residence. The authorities announced their presence and, receiving no response, broke into Cunningham's residence. To gain access, they had to break through a six-foot-high, locked wooden gate; a second locked metal gate about three feet from the front door; and a front door secured from inside the residence by a two-by-four braced against a pillar.
When entering the residence, the authorities noticed a foul chemical smell and heard the sound of a toilet flushing. Cunningham was standing in the hallway at the entrance to the bathroom. The bathroom had an even stronger chemical smell. There was a large piece of cardboard screwed on the ceiling which covered a hole in the bathroom ceiling.
The bathroom had reddish staining on the toilet seat lid, the toilet seat, and in the toilet and bathtub. A sample of the stain from the toilet seat lid showed methamphetamine residue. On top of the toilet tank, the authorities found a glass bottle containing four milliliters (about 1/7 of an ounce) of methamphetamine in hydriodic acid (meth HI). There was broken glassware inside the toilet. A glass container inside the toilet contained a trace amount of a methamphetamine byproduct, phenyl-2-propanone (P2P).
The bathroom floor was wet and there was a bleach bottle on the floor. There was a wet cloth below the toilet that had bleach stains on it. Next to the toilet and bathtub, there was a propane heating tank with an attached nozzle. There was tubing in the bathtub connected to the overhead shower nozzle. There were four bottles of rubbing alcohol and a container of Red Devil lye in the bathroom. There was an operational surveillance television monitor set up in the bathroom, which was connected to a video camera in the garage.
In the living room, there was a glass baking dish with a visible powder coating of uncut d-methamphetamine hydrochloride along the bottom and sides of the dish. There were two unopened boxes of medicine containing pseudoephedrine in a Wal-Mart bag in the living room. There were several propane canisters and tanks, including a propane container with an attached burner nozzle. Also in the living room, there were several books related to drugs and chemistry, including "Amphetamine Synthesis" and "Chemistry the Easy Way." There was a book entitled "Police Call Frequency Guide," a piece of paper listing the codes used by the authorities when communicating with each other, and a portable handheld radio.
In the kitchen, there were two turkey basters on top of a wood surface, glass tubes in a can near the sink, and glass vials and a glass methamphetamine pipe on top of the counter. In a pantry room connected to the kitchen, there were containers of denatured alcohol, bleach, and acetone. On a shelf in the dining room, there were containers of engine degreaser and starting fluid.
In the master bedroom, there was a can of acetone, paper filters, yellow-stained tubing, and an ashtray with a brown powdery residue that tested positive for methamphetamine. There was a weighing scale of the type typically used by methamphetamine dealers, weights to calibrate the scale, and little plastic baggies. There were numerous additional items of glassware in other locations in the residence, including vials, tubes, and beakers, and rubber stoppers used with glassware. The authorities also observed pool acid and drain opener at the residence.
To assist the jury with its evaluation of the evidence found at Cunningham's residence, the prosecution's experts described a process than can be used to make methamphetamine from medicine containing pseudoephedrine. This process includes the following steps: (1) extract the pseudoephedrine from the medicine by dissolving the tablets in an organic solvent (such as rubbing alcohol, denatured alcohol, acetone, engine starting fluid, or engine degreaser); (2) Filter the solution through a porous material (such as a coffee filter) which leaves a pseudoephedrine hydrochloride solution; (3) Heat the solution (for example with propane) to remove the liquid, and dry it on a shallow surface (such as a glass baking dish) to leave dried pseudoephedrine powder; (4) Add iodine, water, and red phosphorous to the pseudoephedrine powder, which creates hydriodic acid; (5) Heat the hydriodic acid, which creates "meth HI"; (6) Filter the meth HI to remove the red, sludgy material; (7) Basify the substance by adding sodium hydroxide, such as Red Devil lye, which creates two layers of liquid; (8) Remove the methamphetamine layer by using such items as an eye dropper or turkey baster; (9) Mix the extracted solution with an organic solvent; (10) Add hydrochloride gas (made from such items as battery acid, pool acid, or drain opener), which creates methamphetamine hydrochloride; and (11) Dry the wet methamphetamine by filtering it, applying heat, and placing it on a shallow surface container such as a glass baking dish. The experts testified that tubing may also be used to convert the methamphetamine from a solvent to a hydrochloride form, and that bleach is often used to eliminate the evidence of methamphetamine manufacture.
The prosecution's experts opined that methamphetamine manufacturing had taken place at Cunningham's residence. The residence looked and smelled like a typical methamphetamine laboratory. The items at the residence were consistent with methamphetamine manufacturing from pseudoephedrine, including medicine containing pseudoephedrine; rubbing alcohol to extract the pseudoephedrine from the tablets; material that could be used as filters; propane for heat; baking dishes for drying; meth HI showing that red phosphorous and iodine had been cooked; reddish staining indicating red phosphorous and iodine use; P2P in the toilet which was a breakdown product of methamphetamine; Red Devil lye to basify the substance; turkey basters to separate liquid layers; numerous organic solvents; pool acid to create hydrochloride gas; and the glass baking dish containing the dried methamphetamine powder.
The prosecution's experts stated that the presence of the meth HI in the bathroom indicated intermediate stage methamphetamine manufacturing. Meth HI (created after adding iodine and red phosphorous to pseudoephedrine powder) contains methamphetamine, although it is not yet in usable form. Because the meth HI found in the bathroom did not contain red sludge, it was apparent the solution had already been filtered. Hydriodic acid is not available for purchase by the public, and a person would have no reason to possess meth HI other than for purposes of cooking methamphetamine. The four milliliters of meth HI could produce about .25 grams of uncut methamphetamine or approximately 40 dosage units of methamphetamine. The boxes of medicine containing pseudoephedrine in the living room contained a total of 48 tablets, which could produce 2.7 grams of uncut methamphetamine or over 500 dosage units of methamphetamine.
On cross-examination, a prosecution expert testified it would be unusual to cook methamphetamine with such a small amount of meth HI. On redirect examination, he testified the meth HI in the bottle was more than a residual amount and it could produce a significant amount of methamphetamine, and it was also possible there was additional meth HI in the bottle but it had been dumped in the toilet.
Although red phosphorous and iodine bottles were not found, the meth HI in the bathroom revealed that these two products had been combined to create hydriodic acid. Additionally, the staining found in the bathroom, which is common in methamphetamine laboratories, results from iodine and red phosphorous.
A prosecution expert testified the stains themselves could not be tested for the presence of red phosphorous or iodine because the testing instruments could not detect these substances at such low levels. However, based on his knowledge and experience, the expert opined the stains were from iodine and red phosphorous used in cooking methamphetamine.
Further, the experts stated the baking dish in the living room with the methamphetamine residue showed a completed manufacturing process. The methamphetamine residue consisted of uncut d-methamphetamine hydrochloride, which is the final product in the manufacture of methamphetamine. The powder could not be brushed off but had to be scraped off, which suggested it had been in liquid form at one time. A prosecution expert also opined that methamphetamine and bleach had been thrown into the toilet and then flushed out, which eliminated the methamphetamine and left the P2P.
The prosecution experts were unable to determine when the cooking of methamphetamine had taken place. However, based on the nature of the meth HI liquid found in the bottle, a prosecution expert opined the meth HI had been cooked no more than one or two days earlier.
When queried on cross-examination about when the methamphetamine cooking occurred, a prosecution expert acknowledged it could have been done a week or a month earlier, and there was no way to identify a timeframe. He further acknowledged the reddish stains in the bathroom did not appear to have occurred very recently because they could not be simply wiped off, and they could have occurred a couple of weeks or even a couple of years earlier. Further, it was not possible to know how long the methamphetamine residue had been on the toilet seat lid, and methamphetamine residue can last for a long time. On redirect examination, he testified the methamphetamine cooking could have been done that morning, the day before, or weeks earlier. When another prosecution expert was asked whether the methamphetamine powder on the baking dish could have been a couple of months or a year old, he stated it was not possible to tell.
Jury's Verdicts
The jury found Cunningham guilty of manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, and possessing hydriodic acid with intent to manufacture methamphetamine. (Health & Saf. Code, § 11379.6, subd. (a); former § 11383, subds. (c)(1), (2), current § 11383.5, subds. (b)(1), (2).) The jury found him not guilty of using a building specifically designed to suppress law enforcement entry in order to manufacture methamphetamine. (§ 11366.6.)
Subsequent statutory references are to the Health and Safety Code unless otherwise specified.
DISCUSSION
I. Admission of Prior Offense Evidence
Cunningham asserts the trial court erred in admitting evidence of his 1993 conviction for manufacturing methamphetamine.
Background
Prior to trial, the prosecution indicated its intent to offer into evidence Cunningham's 1993 conviction for manufacturing methamphetamine. The conviction was derived from the discovery of a methamphetamine laboratory when the police searched Cunningham's residence in 1992. The prosecutor presented the trial court with the following information about the 1992 offense. In December 1992, the police executed a search warrant at Cunningham's residence (the same residence as involved in the current offense). To access the residence, the police had to break through an outer wooden gate, a metal security door, and a wooden front door. The outer wooden gate was reinforced with a piece of wood wedged between the bottom of the gate and a post. While making their entry, the police heard the sound of glass breaking inside the residence.
Inside the residence, the police smelled a strong chemical odor. Cunningham was coming out of the bathroom and wearing clothing that was stained with a reddish liquid and smelled of chemicals. There was a reddish liquid on the bathroom floor, walls and toilet, and staining in the shower. The shower was on and spraying the interior of the bathroom. Inside the toilet bowel, there were baggies containing five grams of methamphetamine. Other items found at the residence included ephedrine; iodine; red phosphorous; paper filters with a residue of red phosphorous, iodine, and ephedrine; glass baking dishes with ephedrine residue; jugs containing liquid and ephedrine; glassware with methamphetamine residue; a scale; acetone cans; Red Devil lye; plastic containers; tubing; and glassware including funnels, beakers, and jars.
The prosecutor argued the evidence of the 1992 offense was admissible under Evidence Code section 1101, subdivision (b) to prove Cunningham's intent to manufacture and his knowledge of how to manufacture methamphetamine. Cunningham argued the evidence should be excluded because the past and current offenses were not sufficiently similar. He contended the 1992 offense involved "a functioning narcotics lab, with all of the requisite chemicals, glassware and finished product," whereas the physical evidence for the current offense was "not of that character." Further, he contended the evidence should be excluded under Evidence Code section 352 because it was not of sufficient probative value to outweigh the substantial potential for prejudice. Cunningham noted that although there was no "bubbling laboratory" during the 1992 offense, all the major ingredients were present. In contrast, for the current charged offense the essential ingredients (including iodine and red phosphorous) were not present, and the two boxes of medicine did not clearly evince Cunningham's intent and knowledge. Given the unclear evidence of intent and knowledge in the current case, he contended admission of the 1992 offense would be unduly prejudicial because too much reliance would be placed on the prior offense to infer intent and knowledge.
The prosecutor responded the evidence was relevant to show that Cunningham knew how to manufacture methamphetamine and that he possessed various common household items for this purpose, not for an innocent purpose. Further, although in the current offense iodine and red phosphorous bottles were not found, there was evidence of a note referring to these chemicals and evidence that Cunningham was engaged in one of the stages of cooking methamphetamine. The prosecutor argued the prior offense evidence was also relevant to show that Cunningham took steps to avoid detection because he had previously been caught—i.e., burying the chemicals in the canyon and fortifying his house with a video camera and a wooden bar against the front door.
The trial court ruled the evidence was admissible to prove Cunningham's intent and knowledge.
At trial, prosecution witnesses described the execution of the search warrant and the discovery of the items related to methamphetamine production found at Cunningham's residence in 1992. These items included a total of 88 grams of ephedrine and 6.4 grams of methamphetamine. In the bathroom, the authorities found two plastic baggies of methamphetamine and one of ephedrine in the toilet; a jar containing water and ephedrine; a coffee filter with a residue of red phosphorous, hydriodic acid, and methamphetamine; a turkey baster; Red Devil lye; and cans of organic solvent. The bathroom was heavily stained from iodine and red phosphorous use and there was broken glassware in the toilet and on the floor. In the kitchen, there were three baking dishes containing ephedrine residue and a coffee filter with ephedrine residue. In the bedroom, there were small glass dishes containing 1.4 grams of methamphetamine; iodine and red phosphorous bottles in a locked floor safe; a scale; and glassware containing liquid. There were homemade laboratory-related items throughout the house, including plastic funnels, glassware, a broken condenser, a broken reaction flask, buckets with submersible pumps, hoses, and a filtering apparatus.
The prosecution experts testified the evidence found during the 1992 search revealed that ephedrine was being used to make methamphetamine, whereas the evidence found during the 2004 search revealed that pseudoephedrine was being used. These witnesses explained that ephedrine has become harder to get, and for this reason clandestine manufacturers now tend to use tablets containing pseudoephedrine. However, they stated the manufacturing processes are essentially the same for both chemicals.
Analysis
Evidence of criminal conduct by the defendant that is not charged in the current case is generally inadmissible to prove the defendant has a propensity to commit crimes. (Evid. Code, § 1101, subd. (a); People v. Catlin (2001) 26 Cal.4th 81, 145.) However, uncharged offense evidence is admissible for the limited purpose of proving such matters as intent or knowledge. (Evid. Code, § 1101, subd. (b); People v. Catlin, supra, at p. 145.) To be admissible to prove intent, the uncharged and charged conduct must be sufficiently similar to support an inference that the defendant probably harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) The recurrence of a similar result tends, increasingly with each instance, to negate accident or inadvertence and establish criminal intent. (Ibid.) Similarly, uncharged offense evidence is admissible to show knowledge if the prior and current conduct are sufficiently similar to rationally support an inference that the defendant had the same knowledge in each instance. (See People v. Torres (1950) 98 Cal.App.2d 189, 192.)
Even if uncharged offense evidence qualifies for admission, because of the potential for prejudice the trial court must carefully evaluate whether the probative value of the evidence is substantial and not outweighed by the probability that its admission would create substantial danger of undue prejudice, confusing the issues, or misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at p. 404; People v. Kipp (1998) 18 Cal.4th 349, 371.) On appeal, we review the trial court's evidentiary determinations for abuse of discretion. (People v. Kipp, supra, at p. 371.)
Cunningham argues the trial court abused its discretion in admitting the 1992 offense evidence because (1) the past and current offenses were not sufficiently similar, and (2) the evidence for the current offense was weak and should not have been bolstered by the stronger 1992 offense evidence. He also asserts the record does not affirmatively show the trial court weighed the potential for prejudice against probative value as required under Evidence Code section 352.
Similarity
The trial court reasonably concluded the past and current offenses were sufficiently similar to support an inference that Cunningham probably harbored the same intent and had the same knowledge in both instances. Both offenses involved the police arrival at a heavily secured residence and the discovery of substances and items associated with methamphetamine production inside the residence. Evidence that Cunningham had engaged in methamphetamine manufacturing in 1992 was highly relevant to show that he had the intent and knowledge to conduct the manufacturing in 2004.
To support his contention that the offenses were not sufficiently similar, Cunningham points out that the 1992 offense involved manufacturing from ephedrine whereas the 2004 offense involved manufacturing from pseudoephedrine; red phosphorous and iodine were found at the residence in 1992 but not in 2004; coffee filters containing chemical traces were found in 1992 but not in 2004; and items such as funnels, distillers, and condensers were found in 1992 but not in 2004.
These differences were not significant enough to decrease the highly relevant nature of Cunningham's past manufacturing activity. Although the 1992 offense involved the use of ephedrine rather than pseudoephedrine, the prosecution's experts testified the manufacturing processes are essentially the same with both ingredients. Although no bottles of red phosphorus or iodine were found in 2004, the presence of meth HI—which can only be created from these ingredients—showed they were used in 2004. The mere fact that no used coffee filters were found in 2004 did not preclude the possibility that they, or some other type of filter, had existed and then been discarded. Prosecution experts testified that such items as distillation equipment, funnels, and condensers are not essential to manufacturing methamphetamine and other items are frequently substituted. The differences cited by Cunningham do not detract from the overall similar nature of the manufacturing evidence found during both the past and current searches which was highly relevant to the issues of intent and knowledge.
Strength of the Current Case
We also find unpersuasive Cunningham's contention that the trial court abused its discretion in admitting the prior offense evidence because the evidence for the current offense was weak and the jury could have been unduly swayed to convict based on the prior offense. To the contrary, the record contains strong evidence that Cunningham had engaged in methamphetamine manufacturing as charged in the current case.
The offense of manufacturing methamphetamine prescribed in section 11379.6 does not require a showing that the defendant manufactured the methamphetamine to completion, nor does it require a showing that the defendant possessed all the ingredients necessary to manufacture the drug. Rather, the offense encompasses the initial and intermediate steps carried out to process methamphetamine. (People v. Coria (1999) 21 Cal.4th 868, 874.) "[T]he statute makes it unlawful to engage in the chemical synthesis of a substance as one part of the process of manufacturing a controlled substance." (Ibid.; People v. Heath (1998) 66 Cal.App.4th 697, 705 [the statute "criminalize[s] all acts which are part of the manufacturing process"].) Further, if the record otherwise supports a finding that manufacturing has occurred, a defendant "is not entitled to acquittal because his clandestine laboratory did not contain in one place 'all the chemical ingredients and materials needed to make [a controlled substance]' and was not 'bubbling and reacting when the police arrived . . . .' " (People v. Lancellotti (1993) 19 Cal.App.4th 809, 813, bracketed material in Lancellotti.)
The evidence showing that Cunningham had engaged in methamphetamine manufacturing as charged in the current case included his repeated purchase of medicine containing pseudoephedrine at Wal-Mart, the strong chemical smell in the house and bathroom, the meth HI in the bottle in the bathroom, the reddish stains in the bathroom, the methamphetamine residue on the toilet seat lid, the methamphetamine byproduct (P2P) in the toilet water, the propane heating tank in the bathroom, the operational surveillance television monitor in the bathroom, and the methamphetamine powder along the bottom and sides of the glass baking dish in the living room. The prosecution's experts testified that the likely source of the reddish stains in the bathroom was from the use of red phosphorous and iodine to manufacture methamphetamine; meth HI would not be possessed for any purpose other than methamphetamine manufacture; the meth HI showed intermediate-stage manufacturing; and the methamphetamine lining the baking dish showed final-stage manufacturing. Although the prosecution's experts could not pinpoint when the manufacturing had taken place, the presence of substances that have no purpose other than the manufacturing of methamphetamine—i.e., meth HI and methamphetamine residue on a baking dish—combined with the additional indicia of manufacturing activity, provided strong evidence that the manufacturing had occurred as charged by the prosecution.
To support his assertion that the evidence supporting the current charges was weak, Cunningham emphasizes that, unlike the 1992 offense, there were no red phosphorous or iodine bottles and no baggies containing manufactured methamphetamine found at the residence. Further, he notes that in 2004 there were only two unopened boxes of pseudoephedrine medicine rather than the significant amount of ephedrine found in 1992. As noted, the prosecution witnesses testified the only way to create the meth HI found in the bathroom was to use red phosphorous and iodine. Thus, the presence of the meth HI provided compelling evidence that Cunningham had engaged in the chemical synthesis associated with methamphetamine manufacturing notwithstanding the absence of bottles containing iodine or red phosphorus. The presence of significant amounts of methamphetamine was not necessary to create a strong case of methamphetamine production. The nature of the methamphetamine residue found in 2004—coating a baking dish in a manner indicative of drying—supported a solid inference that Cunningham had manufactured the substance. The fact that there were only two unopened boxes of pseudoephedrine medicine did not, when considered with all the other evidence, render the 2004 case weak. The observations of the Wal-Mart employee suggested that Cunningham was acquiring significant amounts of pseudoephedrine medicine during this time period. Considering the evidence supporting the 2004 case in its totality, the record does not show that the trial court's decision to admit the 1992 offense evidence allowed a weak case to be buttressed by stronger prior offense evidence.
Weighing Under Evidence Code Section 352
Finally, Cunningham's assertion that the record fails to show the trial court engaged in the requisite weighing process is unavailing. "[A]lthough the record must affirmatively show that the trial court weighed prejudice against probative value in admitting evidence of prior bad acts [citations], the trial judge 'need not expressly weigh prejudice against probative value—or even expressly state that he has done so . . . .' " (People v. Padilla (1995) 11 Cal.4th 891, 924, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) An appellate court may "infer an implicit weighing by the trial court on the basis of record indications well short of an express statement," including inferences drawn from such matters as "argument of counsel or comments by the trial court, or both, touching on the issues of prejudice and probative value . . . ." (People v. Padilla, supra, 11 Cal.4th at p. 924.)
Here, in his written motion to exclude the 1992 offense evidence, defense counsel expressly argued that the evidence should be excluded under Evidence Code section 352 because prejudice outweighed probative value. At the hearing on the motion, the trial court initially stated its tentative ruling to admit the 1992 offense evidence. The court explained that it was not inclined to admit evidence of other prior offenses (for being under the influence and possession for sale of a controlled substance) because although these other offenses might be probative, they were not necessary given the strength of the 1992 offense evidence. The parties then presented their arguments, with defense counsel focusing on his assertion that the prior offense evidence was unduly prejudicial because the evidence of intent and knowledge was much weaker for the 2004 offense than for the 1992 offense, particularly given the absence of red phosphorous and iodine in 2004. Defense counsel also argued that the details of the 1992 offense were not necessarily established because the conviction was based on a plea bargain, and it was questionable whether the note found in the trash in November 2003 was from Cunningham's trash or in his handwriting. Rejecting the defense argument, the trial court found the prosecution had provided numerous details which, if even partially proven at trial, strongly supported admitting the evidence under Evidence Code section 1101, subdivision (b).
The court's initial ruling stating its intent to exclude other potentially relevant prior offenses given the strength of the 1992 offense evidence implicitly shows that the trial court was aware of its duty, and did weigh prejudice against probative value. If the court was not engaging in the weighing process, there would have been no reason for it to exclude evidence of other offenses which it characterized as probative. Further, the court's finding that the prosecution's proffered details about the offenses strongly supported admission of the evidence indicates that the court considered, and rejected, the defense argument that the prior offense evidence was more prejudicial than probative because the current prosecution case was weak. Additionally, a later comment by the court confirms that the court was aware of, and did engage in, the requisite weighing process. During a discussion of whether the prosecution could present evidence that Cunningham may have also manufactured methamphetamine in 1997 (for which conduct he was never prosecuted), the trial court stated its view that under Evidence Code section 352 the 1997 evidence was more prejudicial than probative given that the prosecution was being allowed to present the 1992 offense evidence and the current case was strong.
The trial court did not err in admitting the prior offense evidence.
II. Substantial Evidence
Cunningham asserts there was insufficient evidence to support the jury's verdicts finding him guilty of manufacturing methamphetamine, possessing pseudoephedrine with intent to manufacture methamphetamine, and possessing hydriodic acid with intent to manufacture methamphetamine.
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thomas (1992) 2 Cal.4th 489, 514.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Ibid.)
Cunningham's challenges to his convictions are based on essentially the same arguments that he made with regard to his claim that the evidence of the current offense was too weak to warrant admission of the prior offense evidence. He asserts the evidence is more consistent with methamphetamine use rather than methamphetamine production. He points to the facts that there was no "active, bubbling laboratory," no red phosphorous or iodine bottles, no used coffee filters, and no items such as funnels, reaction flasks, and condensers.
Cunningham also asserts there was no glassware and tubing. The record shows the authorities did find these items at his residence in 2004.
As we stated earlier, to sustain a methamphetamine manufacturing conviction, the record need not show the presence of all the ingredients and materials needed to make the drug. (People v. Lancellotti, supra, 19 Cal.App.4th at p. 813.) The presence of meth HI—which is made using red phosphorous and iodine and has no purpose but methamphetamine production—as well as the methamphetamine powder lining the baking dish, provided strong support for the finding that Cunningham had engaged in the manufacturing of methamphetamine, and that he possessed pseudoephedrine and hydriodic acid with the intent to manufacture the drug. If Cunningham had been merely using the drug, he would have had no reason for possessing meth HI, and he would not have possessed a baking dish lined with methamphetamine residue indicative of the drying process.
To support his challenge to the sufficiency of the evidence, Cunningham also notes that only small quantities of methamphetamine and hydriodic acid were found, and that the two boxes of pseudoephedrine medicine were unopened. These factors do not defeat the jury's verdicts. The jury could reasonably infer that Cunningham heard the authorities arriving and that he discarded methamphetamine in the toilet prior to their entry into the residence. This inference was supported by the bleach observed in the bathroom and the P2P found in the toilet, combined with the expert opinion testimony that methamphetamine had likely been combined with bleach to leave only P2P. Likewise, the jury could infer that Cunningham had discarded meth HI upon hearing the authorities. Alternatively, the jury could infer that Cunningham had completed the manufacturing process (as shown by the methamphetamine powder lining the baking dish) and used the drug himself or transferred it to others, and that the meth HI in the bathroom was an unused portion of the substance left over from his manufacturing activity.
The fact that the pseudoephedrine medicine boxes were unopened did not preclude the jury from inferring that Cunningham had possessed other boxes of the medicine and had used them to manufacture methamphetamine, and that he possessed the unopened boxes with the same intent. The reasonableness of this inference was supported by the Wal-Mart employee's observations of Cunningham making repeated purchases of unusually large amounts of the medicine.
The record contains substantial evidence to support the jury's verdicts.
III. Denial of New Trial Motion
Cunningham asserts the trial court erred in denying his motion for new trial, in which he argued the court had erred in admitting the 1992 offense evidence. For the reasons stated in our analysis addressing his challenge to the admission of the 1992 offense evidence, the trial court did not abuse its discretion in denying his new trial motion.
IV. Denial of Request for Substitute Retained Counsel and for Continuance of New Trial Hearing
Cunningham was represented by retained counsel throughout these proceedings. He asserts the trial court erred during the postconviction proceedings when it denied his request to substitute Vikas Bajaj as his retained attorney and for a continuance to allow Attorney Bajaj to prepare a new trial motion.
During trial, Cunningham was represented by Attorney Nicholas De Pento. After the jury's verdicts, sentencing was set for December 12, 2005, and then continued to January 5, 2006. On January 5, Attorney Patrick Hennessey replaced Attorney De Pento as Cunningham's counsel. The matter was continued to April 11, 2006, with an order requiring the defense to file its new trial motion by March 17 and the prosecutor to file its response by April 7. Attorney Hennessey and the prosecutor complied with these filing dates. On April 11 (the date set for the hearing on the new trial motion and sentencing), Attorney William Holman replaced Attorney Hennessey as Cunningham's counsel, and the matter was continued to June 19, 2006. There were other subsequent continuances, and the matter was reset for hearing on September 15, 2006.
On September 15, Cunningham requested a continuance to again obtain new counsel. A representative of Attorney Bajaj's law firm appeared at this hearing, stated that Cunningham was attempting to retain the Bajaj law firm, and requested a continuance. Over the prosecutor's objection, the trial court granted the continuance to give Cunningham an opportunity to retain the Bajaj law firm, and reset the matter for October 20, 2006. The court stated in its order that there would be no further continuances, and advised Cunningham and the representative from the Bajaj law firm that any new counsel had to be prepared to proceed on October 20.
On October 19, Attorney Bajaj filed a motion requesting that the hearing on the new trial motion and sentencing be continued. According to Attorney Bajaj, Cunningham had retained him on October 18 and apparently had not been able to do so earlier because of financial issues. At the scheduled October 20 hearing, Attorney Bajaj requested that he be substituted as Cunningham's counsel and that the hearing be continued for about one month. Attorney Bajaj stated that Cunningham had indicated there was a breakdown in communication with Attorney Holman. Attorney Bajaj explained that he saw strong issues to support a new trial; he wanted to withdraw the filed new trial motion papers and file his own motion; and he needed about one month to prepare the new trial motion. Attorney Bajaj contended that because the case was at the postconviction stage, there was no concern for loss of evidence or witnesses that could prejudice the prosecution if the court granted a continuance.
The trial court denied Cunningham's request to substitute Attorney Bajaj as his counsel and for a continuance. The court stated Cunningham had repeatedly substituted counsel; the case had been repeatedly continued over a 10-month period; and it appeared Cunningham was using the system for delay. Based on the court's ruling, Attorney Holman represented Cunningham at the hearing on the new trial motion and sentencing.
A criminal defendant has the right to discharge his or her retained attorney without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) However, this right is subject to the requirement that the substitution of retained counsel be made in a timely manner. (Ibid.; People v. Lara (2001) 86 Cal.App.4th 139, 155.) If the change in attorneys would result in an "unreasonable delay in the process of justice" the trial court is not required to allow the substitution. (People v. Ortiz, supra, 51 Cal.3d at p. 987.) The trial court retains discretion to deny a substitution request if it would " 'result in . . . "disruption of the orderly processes of justice unreasonable under the circumstances of the particular case." ' " (People v. Lara, supra, 86 Cal.App.4th at p. 155.) "A court faced with a request to substitute retained counsel must balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution." (Id. at p. 153; People v. Munoz (2006) 138 Cal.App.4th 860, 870.)
In January the trial court permitted a change in defense counsel from Attorney De Pento to Attorney Hennessey and continued the new trial/sentencing hearing for three months until April. In April, the trial court permitted a change from Attorney Hennessey to Attorney Holman and continued the matter for another two months until June. The new trial/sentencing hearing was further continued until September. At the September hearing, Cunningham indicated he was again seeking a change in counsel. The court granted a one-month continuance until October to allow him to pursue this change, and told him (and his prospective new counsel) that this would be the last continuance. At the October hearing, Cunningham asked for another continuance of one month so his now-retained new counsel could prepare.
The trial court did not abuse its discretion in concluding Cunningham's October request to substitute counsel and for a continuance was untimely. The trial court had already provided three opportunities to change Cunningham's representation at the new trial/sentencing hearing, and in conjunction with these substitutions had continued the hearing for a total of approximately six months. On the third occasion in September, the court stated any new counsel had to be prepared to proceed at the October hearing. The trial court reasonably concluded that by this point the interest in the orderly administration of justice outweighed Cunningham's interest in new counsel.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., O'ROURKE, J.