Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04252
ROBIE, J.
A jury found defendant Joseph Randall Donalson guilty of manufacturing methamphetamine, and the trial court found he had two prior strikes. The court sentenced him to 25 years to life in prison.
Defendant appeals, raising nine contentions dealing with the evidence, instructions, discovery, alleged prosecutorial misconduct, and sentencing. Disagreeing with these contentions, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
1. Background
Barbara Flores (Barbara) and her husband Michael Flores are the on-site managers of a RV park at the Sherman Lake Resort in Rio Vista. They rented a spot to Desmond Cominos, where he lived in his Pace Arrow motor home. Cominos was a friend of defendant’s and introduced defendant to the Floreses.
Cominos was the codefendant in this case. He pled guilty to manufacturing methamphetamine and did not testify at trial.
Starting “[s]everal months” prior to May 2006 and continuing through May 2006, the Floreses rented a spot to defendant that was diagonally across the street from Cominos’s Pace Arrow. Defendant lived in a Winnebago he purchased from the Floreses that was parked on the spot he rented. Defendant also had a brown pickup that he drove daily.
Barbara watched “the comings and goings” at the Sherman Lake Resort “[v]ery well.” When defendant moved in, a friend of his named Cindy “stayed with him for awhile.” Thereafter, nobody other than defendant lived in his Winnebago. On occasion, defendant would be gone from his Winnebago for two to four days at a time. On those nights, while making “[her] rounds,” Barbara never saw activity or lights on in the motor home. Defendant never complained that anybody besides him was living in his Winnebago or sought the Floreses’ help in evicting anyone.
Defendant’s across-the-street neighbor was Deanna Beville. Beville saw defendant and Cominos together at the Sherman Lake Resort 6 to 12 times. They would talk and go inside one another’s motor homes.
2. Events Of May 14, 2006
About 2:45 a.m. on May 14, 2006, police officers served a search warrant on defendant’s Winnebago and his vehicles. When they knocked on the front door of the motor home and received no response, they forced open the door. When they entered, Detective Nicholas Gartner of the Concord Police Department saw a hot plate that was plugged in and turned on, glassware, plastic tubing, Red Devil lye, a bottle of Heet, powdered red phosphorus, and hydrogen peroxide. He also smelled strong chemical odors, all of which he associated with methamphetamine manufacturing. Nobody was inside the Winnebago, but right outside the front door was defendant’s brown pickup. Within less than 30 seconds, another detective involved in the search, Shawn Spencer, was overwhelmed by the smell of chemicals and had to leave the Winnebago.
About the same time, Detective Gartner also left. He walked down a dirt road, “scanning the area.” Gartner saw defendant across the dirt road “exiting... the Pace Arrow motor home,” looking toward the detective. Gartner shouted at defendant to “come here.” Defendant turned in the opposite direction and started running. Gartner gave chase, shouting, “Stop, Joe, um, Concord Police, search warrant.” Detective Spencer and another detective joined the chase. Defendant “continued running towards the rear of the Pace Arrow,” “climbed over a makeshift sort of fence, and ended up hiding underneath the very Pace Arrow that he had just started running from.” He was arrested and searched. In his pants’ pocket was a key to the Winnebago.
While near the Pace Arrow, the detectives smelled a strong chemical odor “very similar” to that inside the Winnebago. They knocked at the door and announced their presence. When they received no reply, they entered. Inside were items consistent with methamphetamine manufacturing, including Red Devil lye, a bottle of Heet, and bottles of hydrogen peroxide. There was also an ounce of methamphetamine in a plastic storage container and possibly two more ounces that were sitting on two coffee filters on the floor of the shower stall. Cominos was in the back of the Pace Arrow. Later, the detectives determined Cominos was living there.
It was not clear whether the two ounces were methamphetamine or a pill binder.
In addition to searching the Pace Arrow and the Winnebago, detectives searched defendant’s brown pickup. In the back was a garbage bag containing over 50 empty blister packs of pseudoephedrine tabs, stained green latex gloves similar to a box of gloves found in the Winnebago, used tubing, used bottles of iodine tincture, two empty containers of Heet, a bottle of hydrogen peroxide, and a black balloon containing suspected phosphate gas attached to tubing, and “miscellaneous trash.”
3. Prior Act Evidence
About 2:00 p.m. on January 17, 2006, Concord Police Officer Daniel Golinveaux was inside a 7-Eleven store. When he looked outside, he saw defendant and two men talking with each other next to defendant’s brown pickup. He “observed a hand-to-hand... transaction” between defendant and one of the men that looked like a narcotics exchange. Defendant then drove off in his pickup with the other man. Officer Golinveaux followed defendant and pulled him over for expired vehicle registration. There was a very strong chemical odor coming from the pickup and from defendant. Defendant denied having any “dope” on him. Later, during a jail search, police found a baggie of suspected methamphetamine in defendant’s groin area.
During a search of defendant’s pickup, police found items consistent with methamphetamine manufacturing, including bottles of Heet, hydrogen peroxide, and Red Devil lye.
B
The Defense
Robin Roan is defendant’s close friend and lives in Martinez. From December 2005 to March 2006, she visited defendant at his home in Vallejo approximately five times per month. From April 2006 to May 2006, she visited him at a home in Martinez four or five times.
Once in February or March 2006, she accompanied defendant to the Sherman Lake Resort in his brown pickup. He parked his truck in front of a sign marked “‘office,’” returned five to seven minutes later, and the two then drove away.
Toward the end of April 2006, Roan gave defendant a “Nolo Press” book on the rights and responsibilities of landlords.
DISCUSSION
I
The Trial Court Did Not Err In Its Rulings Relating To Codefendant Cominos And Potential Witnesses Darst and Daniels, And Trial Counsel Was Not Ineffective
Defendant contends “the trial court’s rulings and omissions and trial counsel’s lack of due diligence deprived [him] of his right to effective assistance of counsel, due process, compulsory process, and to present his defense.” Subsumed in this contention are numerous subcontentions relating to alleged error by the trial court and defense counsel with regard to: (a) codefendant Cominos, who asserted his Fifth Amendment privilege against self-incrimination; (b) potential witness Gary Darst; and (c) potential witness Kelly Daniels. We reject each contention of error.
A
Contentions Relating To Codefendant Cominos
Defendant sought to present a third party culpability defense that “‘Stacy’” and her boyfriend “‘Moe’” had been staying at defendant’s Winnebago manufacturing methamphetamine, defendant had unsuccessfully tried to evict them, and he was simply cleaning up the waste they had left. To assist in his defense, defendant provided counsel with the names of people, including Cominos, whom he claimed could attest that Stacy and Moe were living at the Winnebago or could help locate them. According to defendant, Cominos “could have testified that Stacy and/or Moe had been occupying the [Winnebago] in the days and weeks prior to [defendant]’s arrest.”
On August 30, 2006, Cominos pled guilty to manufacturing methamphetamine and accepted the court’s conditional offer of five years’ probation plus 365 days in jail. The same day, the court referred the matter to probation for a presentence report and recommendation and set the sentencing date for September 26, 2006. On September 13, 2006, the court held an Evidence Code section 402 hearing where Cominos was called to testify. Represented by counsel at the hearing, Cominos was asked the following three questions: (1) “[D]o you know [defendant]?”; (2) “[H]ave you ever resided... at the Sherman Lake Resort?”; and (3) “Do you know anyone named Stacy or Mo[e]?” Cominos’s answer to each question was: “I’m asserting my Fifth Amendment right against self-incrimination.” Thereafter, defense counsel stated, “I’m satisfied, your Honor, that this will be fruitless,” to which the court responded, “All right. Witness is unavailable. [¶] Mr. Cominos will be excused.”
On appeal, defendant contends: (1) the court denied him his right to compulsory process with respect to Cominos; and (2) defense counsel was ineffective for failing to request immunity for Cominos or for failing to request a continuance of defendant’s trial until Cominos’s right to appeal his own conviction had expired.
1. The Court Did Not Violate Defendant’s Right To Compulsory Process With Respect To Cominos
Defendant contends the court denied him his right to compulsory process by excluding Cominos’s testimony based on the assertion of his Fifth Amendment privilege. Defendant has forfeited his contention and, in any event, the contention fails on its merits.
When Cominos thrice asserted his right against self-incrimination and the court found him unavailable, defense counsel did not argue that defendant’s right to compulsory process had been denied. Rather, he simply stated, “this will be fruitless.” Given this record, defendant has failed to preserve his contention for review. (People v. Rudd (1998) 63 Cal.App.4th 620, 629.)
His argument fares no better on the merits. The crux of defendant’s argument focuses on what he claims was the court’s lack of a “‘particularized inquiry’” with respect to each of the three questions. We find no error.
“Although the court should make a particularized inquiry as to whether or not a claim of privilege is well founded [citation], in order to approve invocation of the privilege ‘“it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”’” (People v. Lucas (1995) 12 Cal.4th 415, 454.)
The damaging implications of the three questions asked of Cominos were apparent. As to the first question, if Cominos were to answer that he knew defendant, it would tend to establish his relationship with defendant, who was implicated in manufacturing methamphetamine at both Cominos’s Pace Arrow and defendant’s Winnebago. As to the second question, if Cominos were to answer that he resided at the Sherman Lake Resort, it would tend to establish his ongoing presence at a methamphetamine laboratory housed in his Pace Arrow and implicate him in the manufacturing. As to the third question, if Cominos were to answer that he knew Stacy and/or Moe and defendant presented evidence that they were responsible for the methamphetamine manufacturing at either the Winnebago or the Pace Arrow, Cominos could also be implicated in the manufacturing given the testimony that Cominos was present at both motor homes. If he were to answer that he did not know them, it would tend to suggest Stacy and/or Moe did not exist, which would then suggest it was Cominos and/or defendant who manufactured the methamphetamine at the motor homes. Thus, because the proposed testimony had a tendency to incriminate Cominos, the court could not compel Cominos to answer the questions. (People v. Cudjo (1993) 6 Cal.4th 585, 617.)
2. Defense Counsel Was Not Ineffective
Defendant contends his counsel was ineffective for failing to request immunity for Cominos in exchange for his testimony or for failing to request a continuance of defendant’s trial until Cominos’s right to appeal his own conviction had expired. Defendant’s contention fails because he has not proved his counsel’s performance was deficient, the first prong of an ineffective assistance of counsel analysis. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
As to defendant’s first claim, trial counsel’s performance was not deficient because “the defendant has no power to force the prosecution to grant immunity to defense witnesses” (People v. Lucas, supra, 12 Cal.4th at p. 459), and there is no California precedent stating that judges have the power to grant such immunity (see People v. Stewart (2004) 33 Cal.4th 425, 468).
Even if we were to assume, as the California Supreme Court has done, that “‘judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant’s rights to compulsory process and a fair trial’” (People v. Stewart, supra, 33 Cal.4th at p. 468), defendant cannot show counsel’s performance was deficient because under any theory warranting a judicial grant of immunity, the proffered testimony must be clearly exculpatory (id. at pp. 469-470). Here, defendant merely speculates that Cominos would have testified that “Stacy and Moe were living as holdover tenants in his motor home and that they, and not [defendant] were present when the methamphetamine manufacture took place.” This speculation is not sufficient to show testimony that would be clearly exculpatory.
As to defendant’s second claim of ineffective assistance for failing to request a continuance of defendant’s trial until Cominos’s right to appeal his own conviction had expired, counsel was not deficient because it was unlikely a continuance would have been granted. (See People v. Taylor (1984) 162 Cal.App.3d 720, 726 [counsel is not required to raise futile motions].) A continuance would have delayed the trial a minimum of 73 days -- 13 days for Cominos to be sentenced plus another 60 days for expiration of Cominos’s right to appeal. A two-and-one-half-month delay in defendant’s trial would have inconvenienced jurors, witnesses, and the court, and it would have jeopardized the People’s right to a speedy trial. (See Pen. Code, § 1050, subd. (a).) Under these circumstances, defense counsel cannot be faulted for failing to request a continuance.
B
Contentions Relating To Potential Witness Gary Darst
Gary Darst was another witness who defendant claimed would have supported his third party culpability defense relating to Stacy and Moe.
According to a defense investigator who interviewed Darst on August 30, 2006, Darst told the investigator he “was personally aware that Stacy was staying at [defendant]’s trailer; he “kn[e]w this from [defendant]”; and defendant spent most of his time in Pittsburg, Benicia, and Concord.
The defense subpoenaed Darst to testify, and when he did not appear, the court issued a $100,000 bench warrant on September 6, 2006. On September 14, 2006, the court found Darst unavailable because defense counsel had shown “due diligence in attempting to secure Mr. Darst.” However, it refused to admit into evidence Darst’s statement to the investigator because it did not “qualify as a statement against declaration [sic].” The court also refused to grant defendant’s request for a continuance so the defense could spend more time looking for Darst.
Defendant contends the court: (1) denied him his right to compulsory process by failing to secure Darst’s presence at trial; (2) denied him his right to a fair trial by excluding the statement Darst made to the defense investigator; and (3) abused its discretion in denying his request for a continuance to locate Darst.
1. The Court Did Not Deny Defendant’s Right To Compulsory Process By Failing To Secure Darst’s Presence
Defendant contends the court denied him his right to compulsory process by failing to secure Darst’s presence at trial. He relies on People v. Bossert (1910) 14 Cal.App. 111, which held a “defendant was deprived of a constitutional right” when the trial court ruled the defendant “was not entitled to the process of the court compelling [the] attendance [of subpoenaed witnesses who were material and important to the defendant’s case] and forced the defendant to submit his case to the jury without the benefit of their oral testimony.” (Id. at p. 116.)
Defendant claims his case is “indistinguishable” from Bossert. But in Bossert the trial court never issued a bench warrant for the subpoenaed witnesses. (People v. Bossert, supra, 14 Cal.App. at p. 113.) Here, the court issued a bench warrant for Darst. “Where compulsory process has been issued, served and has proved ineffective, and the court has issued a bench warrant for the witness,” the court cannot be “chargeable with error because the defendant failed to secure the witness.” (People v. Avila (1967) 253 Cal.App.2d 308, 330.)
2. The Court Did Not Deny Defendant His Right To A Fair Trial By Excluding Darst’s Statement
Defendant contends the court denied him a fair trial by excluding Darst’s statement because it was “critical to [his] defense and bore persuasive assurances of trustworthiness.” In making his argument, defendant relies on two cases involving declarations against penal interest that were excluded because state court evidentiary rules did not recognize that hearsay exception. (Chambers v. Mississippi (1973) 410 U.S. 284, 298 [35 L.Ed.2d 297, 311]; Green v. Georgia (1979) 442 U.S. 95 [60 L.Ed.2d 738].) In those cases, the United States Supreme Court held that unreasonable state rules of evidence do not constitutionally preclude admission of a declaration against penal interest that is crucial to the defense and bears “persuasive assurances of trustworthiness.” (Chambers, at p. 302 [35 L.Ed.2d at p. 313]; see Green, at p. 97 [60 L.Ed.2d at p. 741].)
Here, however, defendant makes no attempt to explain why Darst’s statements bore any indicia of trustworthiness. He simply asserts that they did. Where a defendant fails to make a threshold showing that the out-of-court statement is trustworthy, exclusion of the statement does not violate the defendant’s constitutional rights. (People v. Lawley (2002) 27 Cal.4th 102, 154-155.)
3. The Court Did Not Abuse Its Discretion By Denying Defendant’s Request For A Continuance To Locate Darst
Defendant claims the court abused its discretion in denying his request for a continuance to locate Darst. There was no error.
On August 30, 2006, Darst told a defense investigator he was going to the Salvation Army drug rehabilitation program in San Francisco for six months and that for the first 30 days of the program, he would be “restricted.” On September 14, 2006, in response to the court’s inquiry as to what had been done since September 13 to track Darst down, defense counsel stated that on September 13, a defense investigator went to Darst’s last known address, but Darst was not there. Thereafter, defense counsel spoke to Robin Roan (defendant’s close friend who was Darst’s former girlfriend), who said Darst was at the Salvation Army drug rehabilitation program in San Francisco. Defense counsel contacted a representative from the Salvation Army program who said Darst was not there. When the court inquired whether defense counsel was certain Darst was not there or whether somebody was simply telling him Darst was not there, defense counsel replied that the “tone of the conversation... was that he -- he affirmatively was not there. I spoke to somebody at intake who asked me, um, his full name and verified the correct spelling of his last name. Um, she then said, Hang on, I will check my files. She put the phone down, came back a few minutes later, and said, he is not at our facility, or words to that effect.”
Defense counsel asked for a continuance “to try to find [Darst.]” The court denied the request because there was “no reasonable idea as to where [Darst] might be” and therefore there was no “lead at this point in time as to where we might begin the search.”
On appeal, defendant contends the court’s ruling was error, speculating “all indications pointed to the likelihood Darst was... at the Salvation Army [drug] rehabilitation program [in San Francisco.]” His speculation, however, was refuted by defense counsel’s later investigation that dispelled Darst’s presence at the program. Given this evidence and the lack of other leads about Darst’s whereabouts, the trial court did not abuse its discretion in denying a continuance to locate Darst.
C
Contentions Relating To Potential Witness Kelly Daniels
Kelly Daniels was another witness defendant claimed would have supported his third party culpability defense relating to Stacy and Moe. According to defendant, Daniels lived in Sherman Lake Resort’s trailer park and interacted with Stacy there. A defense investigator tried to serve Daniels with a subpoena but Daniels refused to accept it, so the investigator left it on the door. Daniels never appeared at trial.
On appeal, defendant claims: (1) his counsel was ineffective; and (2) the court “failed to assure to the defendant ‘the process of the court to compel [Daniels’s] attendance.’”
1. Defendant Has Not Established Counsel Was Ineffective In Failing To Procure Daniels As A Witness
Defendant contends trial counsel was ineffective in failing to either request a continuance to locate Daniels if service of the subpoena was insufficient or, if service was sufficient, to request a bench warrant to secure Daniels’s presence at trial. Defendant has failed to prove counsel’s performance was deficient under either scenario.
At a hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118, on September 13, 2006, defense counsel told the court that his investigator attempted to serve Daniels by leaving the subpoena on the door of his trailer. The trial court responded by stating, “Maybe further attempts can be made.” At a later new trial motion, the court noted it had reviewed the Marsden transcripts and asked defense counsel, “What did you do to talk to or contact Mr. Daniels to seek information about Stacy or Moe?” Defense counsel responded that he did not “have those notes in front of [him],” but explained his “recollection” was that he sent an investigator to the Sherman Lake Resort who contacted Daniels. Daniels “denied any knowledge of the case or [defendant].” The investigator “attempted to serve [Daniels] with a subpoena..., [h]e refused to accept service,... [so t]he subpoena was left on his front door.” The court then asked whether “anything happen[ed] after that with Mr. Daniels?” Counsel responded, “No, as I recall.”
The problem with establishing deficient performance on this record is that defense counsel’s performance was unclear. Because he did not have his notes, defense counsel was unsure about what steps he took to ensure Daniels’s attendance at trial. And his response to the court’s final question about whether anything else happened was ambiguous. It could have meant either that the investigator made further efforts to subpoena Daniels and they were unsuccessful or that the investigator simply failed to make any further efforts to subpoena Daniels. Given the state of this record, we cannot say defense counsel’s performance with respect to securing Daniels’s presence was deficient. Moreover, in light of Daniels’s denial of any knowledge about the case, defendant has failed to show that securing Daniels’s presence at trial could have helped defendant.
2. Defendant Has Not Established The Trial Court Erred In Failing To Issue A Bench Warrant For Daniels
Also because of the state of the record, we cannot say the trial court erred in failing to assure the process of the court to compel attendance of Daniels. The record is ambiguous as to whether Daniels was successfully served. Although the defense investigator “attempted to serve [Daniels] with a subpoena..., [h]e refused to accept service,... [so t]he subpoena was left on his front door.” It is unclear what happened after that. If Daniels was not adequately served, the court had no basis on which it could issue a bench warrant. Because it is defendant’s burden as the appellant to provide an adequate record on appeal to show error (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194-195) and the record does not reflect whether Daniels was successfully served, defendant cannot show the court erred in failing to issue a bench warrant for Daniels.
II
The Trial Court Did Not Err In Limiting Robin Roan’s Testimony
Defendant contends the court “deprived [him] of his right to due process, to a fair trial and to present a defense” when it placed “improper restrictions on Rob[i]n Roan’s testimony.” The crux of defendant’s contention is the court erred in: (a) excluding Roan’s proffered testimony about Stacy and Moe using the Winnebago, which the court based on Roan’s lack of personal knowledge; and (b) sustaining the prosecutor’s relevancy objection to a question about what program Roan entered after she was convicted of petty theft with a prior in June 2003.
Defendant has forfeited his constitutional claims by failing to raise them in the trial court. (People v. Waidla (2000) 22 Cal.4th 690, 718, fn. 4.) In any event, the court did not err in excluding the evidence, as we explain below.
A
The Court Properly Excluded Roan’s Testimony About Stacy And Moe
In an Evidence Code section 402 hearing, Roan testified she became aware that defendant was having problems with Stacy and Moe staying at his motor home. She did not know Moe and or Stacy, and learned that Stacy was living in the motor home because defendant and a person named Sherry Gomes told her so. Based on this lack of personal knowledge, the court excluded Roan’s testimony about Stacy and Moe.
The court’s ruling was correct. Roan’s testimony was inadmissible because she lacked “personal knowledge of the matter.” (Evid. Code, § 702, subd. (a).)
B
The Court Properly Excluded Roan’s Testimony About Entering A Program
On recross-examination during trial, Roan testified she was convicted of petty theft with a prior in June 2003 and then volunteered that the conviction was “right before [she] went into the program.” During redirect examination, defense counsel asked Roan “what program is that,” but Roan did not answer because the court sustained the prosecutor’s relevancy objection. Defense counsel then asked to “approach,” and the court held an unreported sidebar conference.
On appeal, defendant claims, “[a]n explanation as to the nature of the program was necessary to rehabilitate [Roan] so as to illustrate for the jury that, as a result of attending the program, she was now an employed, productive member of society who no longer engaged in felony behavior and was more likely to be telling the truth regarding her testimony.”
Defendant’s argument is speculative. We have no record as to the nature of the program, whether Roan completed it, or anything as to its efficacy. And defendant has not provided a settled statement of the unreported sidebar. It is defendant’s burden to show error by providing an adequate record on appeal, and he has failed to do so. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.) On the record we have, the evidence about Roan’s program was irrelevant, and the court therefore did not err in excluding it. (Evid. Code, §§ 210, 350.)
III
The Prosecutor Did Not Commit Misconduct In Rebuttal Closing Argument
Defendant contends the prosecutor committed misconduct in his rebuttal closing argument when he commented on defendant’s failure to call logical witnesses. The prosecutor’s argument to which defendant’s contention relates was as follows:
“[The prosecutor:] In a criminal case, the burden always stays with the People. I have to prove each and every element beyond a reasonable doubt. That never changes. But from the moment that brings us here, all parties have the power of the Court to subpoena folks to come in and to give testimony, and offer testimony. Defense called Ms. Roan. When a party fails to do something or to call someone who logically would be connected, you get to ask yourself about that.
“[Defense attorney]: Your Honor, I’m going to object to this as improper argument, shifting the burden.
“THE COURT: Overruled.
“[THE PROSECUTOR]: You -- you can consider the failure to present logical evidence or witnesses in a case, if appropriate. If he didn’t live there, if it is not his motor home, where are those witnesses? I’m certainly not in a position to know where he was to subpoena those folks.”
On appeal, defendant notes that the prosecutor previously had asked the court to remind defense counsel that neither party could comment on the absence of a witness who had been deemed unavailable, and defendant argues that the prosecutor’s rebuttal argument in light of the prosecutor’s knowledge that Cominos, Darst, and Daniels were unavailable, constituted “blatant misconduct.”
Defendant is incorrect. As the prosecutor’s follow up argument indicates, the prosecutor was focused on defendant’s failure to call witnesses who could prove defendant did not live in the Winnebago and that the Winnebago was not his. The witnesses defendant could have called were not limited to Cominos, Darst, and Daniels and included others such as neighbors who lived by him, friends who visited him elsewhere than the Winnebago, and landlords, rental agencies, or mortgage companies to whom he paid room and board. Because the prosecutor did not focus on evidence that only these three witnesses could have provided, the prosecutor’s comments about defendant’s failure to call material witnesses did not amount to misconduct under either state or federal law. (See People v. Samayoa (1997) 15 Cal.4th 795, 841.)
IV
Defendant Has Waived Any Argument That He Was Deprived Of Meaningful Appellate Review By The Court’s Failure To Transcribe The Jury Instructions, And The Trial Court Did Not Err In Modifying Defendant’s Pinpoint Instruction
Defendant contends the trial court’s (a) solicitation of a stipulation that the court reporter need not transcribe the jury instructions and (b) modification and placement of a defense pinpoint instruction, deprived him of meaningful appellate review and full and fair consideration of his third party liability defense. As explained below, defendant’s contentions lack merit.
A
Defendant Has Waived Any Claim He Was Deprived Of His Right To Meaningful Appellate Review
The parties entered into the following stipulation on the record: “[T]he court reporter need not transcribe the jury instructions as I read them. I will come back to each of you once I have concluded reading them if you believe I made an error at any point in my reading.” Thereafter, court read the instructions to the jury without transcription, and the parties agreed that the court “read the[] instructions substantially as written” without omitting anything.
However, in response to a note from the jury during deliberations, the court realized it forgot to instruct pursuant to CALCRIM Nos. 400 and 401 regarding aiding and abetting, which the parties previously agreed needed to be given. The court said it intended to give those instructions now. Over defense objection that any error in failing to give the instruction was “waived” by the parties’ agreement that the instructions as read by the court were correct, the court instructed the jury pursuant to CALCRIM Nos. 400 and 401. The court told the jury it had inadvertently omitted these instructions earlier and the jury should assume the court would have read them had it remembered.
The jury’s note requested the following: (1) “to define ‘knowingly participated in the beginning or intermediate process’ & does the purchasing and disposing of components involved (pills, chemicals, etc) is that considered participating”; (2) “What is consider[ed] ‘beginning’ of the process?”
Based on this record, defendant contends he was deprived of meaningful appellate review and due process by the court’s failure to require the court reporter to transcribe the instructions. “Generally,” however, “a defendant’s stipulation not to record a portion of the trial forfeits the claim the record is inadequate for appellate review. (People v. DeFrance (2008) 167 Cal.App.4th 486, 495.)
Nevertheless, defendant claims without supporting authority that “[t]he stipulation and purported waiver were invalid ab initio” and the error was “invited” because the court requested the improper stipulation. In point of fact, the record does not reflect who requested the stipulation because it was reached off the record, and when placed on the record, nobody stated who had initiated the request for stipulation. On this record, defendant has forfeited any argument that he was deprived of meaningful appellate review or due process by the failure to transcribe the jury instructions.
B
The Court Did Not Err In Its Modification And Placement Of Defendant’s Pinpoint Instruction
Defense counsel requested the following pinpoint instruction on third party liability:
“You have heard evidence that a person other than the defendant committed the offense with which the defendant is charged. The defendant is not required to prove the other person’s guilt. It is the prosecution that has the burden of proving the defendant guilty beyond a reasonable doubt. Therefore, the defendant is entitled to an acquittal if you have a reasonable doubt as to the defendant’s guilt. Evidence that another person committed the charged offense may by itself leave you with a reasonable doubt as to the defendant’s guilt. However, its weight and significance, if any, are matters for your determination. If after considering all of the evidence, including any evidence that another person committed the offense, you have a reasonable doubt that the defendant committed the offense, you must find the defendant not guilty.” (Italics added.)
The court refused to give the entire pinpoint instruction and agreed to give only the italicized portion. It explained that the pinpoint instruction “contain[ed] a substantial amount of verbiage. [¶] What the Court did was delete all of the language with the exception of two sentences....” [¶] The other language that was proposed in the pinpoint instruction wasn’t given because it’s already provided in the instructions that are being given as part of the form instructions.”
As to the sequence of instructions, the court read CALCRIM No. 373 regarding other perpetrators, then read CALCRIM No. 375 regarding evidence of defendant’s uncharged offenses, which included the italicized portion of the pinpoint instruction at the beginning of its last paragraph.
Defendant contends the court’s “abridgement and placement” of the pinpoint instruction deprived him of a fair trial, due process, and right to present a defense. Specifically, he argues the court “reduced the [pinpoint] instruction on third party culpability to two sentences[,] then juxtaposed it immediately after CALCRIM 373 instructing jurors on other perpetrators, and buried it within the very lengthy CALCRIM 375 which instructed jurors on uncharged offenses,” thereby “entirely emasculat[ing] the [pinpoint] instruction” and “creat[ing] uncertainty and confusion.”
Defendant has failed to preserve these claims because he did not raise them in the trial court. In fact, the only thing defense counsel stated when asked for comments on the court’s modifications to the pinpoint instruction was, “I would submit on the pinpoint instruction I submitted to the Court.” On this record, defendant has forfeited these claims.
Even on the merits, defendant’s argument fails. The court properly excised portions of the pinpoint instruction because they were duplicative of others. (People v. Panah (2005) 35 Cal.4th 395, 486.) The first sentence about the testimony of others who committed the offense was introductory and therefore not necessary. The remaining sentences stating it was not defendant’s burden to prove his innocence and it was the prosecution’s burden to prove defendant’s guilt beyond a reasonable doubt were covered by CALCRIM Nos. 103 and 220 on reasonable doubt.
As to his claim that the order of the instructions created uncertainly and confusion and “emasculated” his pinpoint instruction, he fails to support his assertions. In the cases defendant cites for support, the instructions the court gave omitted crucial instructions on the defense theory of the case. (See, e.g., People v. Conley (1968) 268 Cal.App.2d 47, 52; People v. Stewart (1968) 267 Cal.App.2d 366, 374.) This did not happen here, as the court gave the crux of defendant’s pinpoint instruction and the defense was able to argue that somebody other than defendant was responsible for the methamphetamine manufacturing. Furthermore, even in cases where the instructions have been organized “willy-nilly” or in rote numerical order, there is still “scant precedent for reversal.” (People v. Carrasco (1981) 118 Cal.App.3d 936, 943-944.) Finally the jury did not indicate it misunderstood or was confused about the pinpoint instruction so there is no basis on which to do more than speculate that jurors misunderstood or were confused about these instructions.
V
There Was No Error In Failing To Give Or Failing To Request Instructions On Transitory Possession
Defendant contends the court erred in failing to sua sponte instruct on the defense of transitory possession and his counsel was ineffective for failing to request the instruction. We disagree because this defense simply does not fit here.
The defense of transitory possession is available when there is evidence that a defendant possessed narcotics “for only brief moments” in order to dispose of it. (People v. Mijares (1971) 6 Cal.3d 415, 423; CALCRIM No. 2305.) The only methamphetamine found here was an ounce in a plastic storage container in the Pace Arrow and possibly two more ounces that were sitting on two coffee filters on the floor of the shower stall in the Pace Arrow. There was no evidence defendant was disposing of the methamphetamine, unlike the waste associated with its manufacturing. As such, there was no error in failing to either give or request the instruction.
VI
The Court Did Not Err In Ordering Discovery Of Defendant’s Letters, And Trial Counsel Was Not Ineffective For Failing To Seek Writ Review
Defendant contends the court erred in ordering discovery to the prosecutor of letters defendant had written to assist in his defense, and his counsel provided ineffective assistance by failing to seek writ review of the issue during trial. We find no error.
A
Background Facts
Before the start of trial, the court noted there were two letters written by defendant in Cominos’s possession and the court needed to determine whether the prosecutor was entitled to those letters. The first was an undated 28-page letter that was in an envelope marked “‘legal mail’” and addressed to defendant’s attorney that never made it to counsel because it was returned to defendant for insufficient postage. Defendant then gave the letter and envelope to Cominos. Cominos in turn gave the letter to his attorney, who then gave it to defendant’s attorney. The second letter, which was not addressed to anyone, was dated August 24, 2006, and was given to Cominos by defendant.
The court ordered both letters discovered to the prosecutor, finding that defendant had waived the attorney-client privilege.
B
Defendant’s Failure To Seek Writ Review Precludes Appellate Review Of The Discovery Ruling; In Any Event, Counsel’s Performance Was Not Deficient Because The Court Did Not Err In Ordering The Discovery
Because counsel failed to seek writ review of the court’s discovery ruling, defendant’s claim of trial court error is not cognizable. “Interlocutory review by writ is the only adequate remedy where a court orders production of documents which may be subject to a privilege, ‘since once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.’” (Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.)
Because counsel failed to seek writ review and failed to assert the “joint defense privilege,” defendant claims counsel was ineffective. We find counsel’s performance was not deficient because the court’s discovery order was not error.
At the time of the trial court’s ruling, the evidence before the court was that defendant voluntarily gave both letters to Cominos. By doing so, defendant waived the right to claim the letters were protected by the lawyer-client privilege. (Evid. Code, § 912, subd. (a).)
At the time of the trial court’s ruling on the admissibility of defendant’s letters, defendant’s attorney stated that defendant gave the first letter to Cominos “voluntarily” and “tendered” the second letter to Cominos. Defendant did not object to these characterizations.
“Nevertheless,” defendant contends, “even assuming... [he] voluntarily shared the letters, at the time, [he] shared a joint defense privilege with co-defendant Cominos and thus no waiver occurred.” According to defendant, “[t]he ‘joint defense privilege’ is an extension of the attorney-client privilege applicable where parties join forces on an issue of common interest.”
However, the very case defendant cites for this proposition “reject[ed] this characterization to the extent it suggests there is an expanded attorney-client relationship encompassing all parties and counsel who share a common interest.” (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889.) “Rather, [the joint defense or] the common interest doctrine is more appropriately characterized under California law as a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.” (Ibid., fn. omitted.) That doctrine arises from Evidence Code section 912, subdivision (d) which states that “[a] disclosure in confidence of a communication that is protected by... [the] (lawyer-client privilege)... when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer... was consulted, is not a waiver of the privilege.” (OXY, at p. 890.)
The problem with applying the joint defense or common interest doctrine here is that defendant does not explain how disclosure of the letters was reasonably necessary for the accomplishment of the purpose for which counsel was consulted. Moreover, defendant and Cominos did not share a common interest, as Cominos’s counsel stated she wanted to use those letters against defendant to show his knowledge of methamphetamine manufacturing. This being the case, the court did not err in ordering the discovery of the letter to the prosecutor, and trial counsel was not deficient for failing to bring the writ.
VII
There Was No Cumulative Prejudice
Defendant contends the cumulative effect of the foregoing alleged errors requires reversal of his conviction. Because we have found no errors, defendant’s contention fails.
VIII
The Trial Court Did Not Err In Refusing To Dismiss One Of Defendant’s Strikes
Defendant contends the court erred in failing to dismiss one of his strikes because it mistakenly believed he would serve only 80 percent of his 25-year-to-life sentence and because it would have been within the court’s discretion to dismiss one of his strikes. We find no error because the court’s mistake concerning defendant’s parole eligibility date had nothing to do with its decision to not dismiss the strike.
Defendant had two strike priors: a 1973 robbery and a 1976 bank robbery. At sentencing, he argued that the bank robbery strike should be dismissed because it was “not a violent crime,” “there’s no weapon involved,” and it was a “grand theft person more than it [wa]s an actual robbery.”
The court refused to dismiss either strike, reasoning that although they were “substantially old strikes,” defendant had “over twenty felony convictions, three misdemeanor convictions, six separate prison commitments, and a CRC commitment” over the last 35 years, so there was “nothing since those strikes occurred to show that in fact [defendant] desire[d] to change the pattern of [his] life.”
After the court pronounced sentence, defendant asked whether he would have to serve 25 years before he was eligible for parole. The court replied that he would have to serve only 80 percent of that time, so he would be eligible for parole in 20 years. Defendant then noted he would be 80 years old at that time, “which in effect would be a capital sentence” “for a non-capital offense.” The court told defendant it was “not going to go back through the discussion on the Romero motion, which is what [he was] asking [the court] to do.”
Based on this record, defendant contends the court did not “act with informed discretion” in refusing to dismiss one of his strikes because it erroneously believed he would be entitled to a 20 percent sentence reduction. Defendant’s claim fails.
While he is correct that a defendant sentenced to an indeterminate life term under the three strikes law is not eligible for postsentence prison conduct credit (In re Cervera (2001) 24 Cal.4th 1073, 1078), the court’s incorrect understanding in this regard had nothing to do with its decision not to dismiss defendant’s strikes. The court refused to dismiss defendant’s strikes because he had an uninterrupted history of criminal behavior that lasted over 35 years. Indeed, the court would likely have been abusing its discretion had it done otherwise. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”].) Simply put, the minimum number of years defendant would spend in prison if he had three strikes -- whether it was 20 years or 25 years -- was not relevant to the court’s analysis. For this reason, defendant’s argument fails.
IX
The Court Did Not Err In Its Instructions On Aiding And Abetting And In Its Response To The Jury’s Question
In a supplemental brief, defendant contends the trial court erred in instructing the jury on aiding and abetting because there was insufficient evidence to support these instructions. He further contends that even if those instructions should have been given, the instructions here were deficient because they omitted language addressing mere presence at the crime scene. Finally, defendant contends the court erred in failing to respond to the jury’s written question. As explained below, we reject defendant’s claims of instructional error.
A
Background Facts Relating To The Aiding And Abetting Instructions
A few hours into deliberations, the jury sent the court a note requesting the following: (1) “define ‘knowingly participated in the beginning or intermediate process’ & does the purchasing and disposing of components involved (pills, chemicals, etc) is that considered participating”; (2) “What is consider[ed] ‘beginning’ of the process?”
This note led the court to realize it had forgotten to give CALCRIM Nos. 400 and 401 on aiding and abetting, which the parties had previously agreed should be given. Defense counsel objected that the error in failing to give the instructions was “waive[d]” because both parties agreed (right after the court had read the instructions) that the court had instructed the jury correctly and that the instructions, if given now, would be “unduly highlight[ed]” for the jury. The court overruled defense counsel’s objection.
The court then called the jury into the courtroom and said that before it was going to answer the jury’s question, the court needed to provide the jury with the following two instructions it had omitted:
“A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. Two, he or she may have aided and abetted somebody else who committed the crime.
“In these instructions I will call that other person the perpetrator.
“A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.
“To prove that the Defendant is guilty of a crime based on aiding and abetting a crime, the People must prove that:
“The perpetrator committed the crime;
“[T]he Defendant knew that the perpetrator committed the crime before or during the commission of the crime;
“The Defendant intended to aid and abet the perpetrator in committing the crime;
“And, the Defendant’s words or conduct[] did aid the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she intends to and does, in fact, aid, facilitate, promote, or instigate the perpetrator in the commission of that crime.
“If all of these requirements are proved, the Defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abetter.”
The court then told the jury it would have read these instructions to the jury if it had remembered and further instructed the jury “not to give them any undue significance.”
Immediately thereafter, the court stating it was “turn[ing] to the second issue which was the [jury] question.” With respect to that, the court instructed as follows:
“[Y]ou have heard all of the evidence in this case that you are going to hear. I have also given you all of the instructions that will be provided to you in this case. These questions are questions you will need to answer among yourselves in your deliberative process.”
The jury then adjourned to resume deliberations and shortly thereafter reached its verdict.
B
There Was Sufficient Evidence To Instruct On Aiding And Abetting
Aiding and abetting liability for manufacturing a controlled substance requires that a defendant: (1) knew of the unlawful purpose of the perpetrator to manufacture a controlled substance; (2) held the specific intent or purpose of committing, engaging in, or facilitating the manufacture of a controlled substance; and (3) by act or advice, aided, promoted, encouraged, or instigated the manufacture of a controlled substance. (People v. Sanchez (1994) 27 Cal.App.4th 918, 923.)
Defendant contends the court erred in instructing the jury on aiding and abetting because there was insufficient evidence to support the instruction, and his counsel was ineffective for failing to object. We disagree because there was sufficient evidence from which the jury could have found defendant aided and abetted Cominos in manufacturing methamphetamine in the Winnebago and/or the Pace Arrow.
Defendant and Cominos were friends who spent time in each other’s motor homes, both of which contained working methamphetamine laboratories. It could be inferred defendant knew of the nature of methamphetamine and methamphetamine manufacturing from his prior possession of the drug and the waste products associated with its manufacturing that he possessed four months before his arrest in this case. It also could be inferred that defendant knew Cominos was manufacturing methamphetamine in one or both motor homes because of the strong chemical smell emanating from the Winnebago and the Pace Arrow, the latter which defendant had just left. Finally, it could also be inferred from the evidence that defendant provided Cominos access to his Winnebago where some of the manufacturing was taking place, because Cominos had been seen in the Winnebago, defendant was found in possession of the key to the motor home when arrested, and the manufacturing process in both laboratories was similar. This evidence was sufficient to instruct on aiding and abetting and is sufficient to defeat defendant’s claim of ineffective assistance of counsel.
C
The Court Did Not Err In Failing To Instruct On Mere Presence At The Scene Of The Crime
Defendant contends the court erred in failing to give the optional first bracketed paragraph in CALCRIM No. 401 regarding mere presence at the scene of the crime, and his counsel was ineffective for failing to object.
The paragraph defendant contends should have been given reads as follows: “If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.” (CALCRIM No. 401.)
Here, the court did not err in omitting that portion of the instruction because there was uncontroverted evidence defendant was not merely present at the scene of the manufacturing or failed to prevent the crime. He possessed the keys to the Winnebago where some of the manufacturing was occurring, he had the waste products of manufacturing in his brown pickup, he fled from the police, and he was found hiding behind the Pace Arrow where more manufacturing was taking place and where he had just been seen leaving. Given this evidence, the court did not err in omitting the mere presence portion of the instruction, and counsel was not deficient for failing to object.
D
The Court Did Not Err In Its Response To The Jury’s Question
As noted, the jury asked the court to “define ‘knowingly participated in the beginning or intermediate process’ & does the purchasing and disposing of components involved (pills, chemicals, etc) is that considered participating” and “[w]hat is consider[ed] ‘beginning’ of the process?”
Defendant contends the court erred in failing to “respond[] directly to the jury’s questions,” instead simply instructing pursuant to CALCRIM Nos. 400 and 401 and “fail[ed] to clarify” that defendant’s “mere purchase or disposal of components was not sufficient to prove knowing participation.”
As to the court’s alleged failure to respond directly to the jury’s question, defendant is mistaken. The court separately responded to the jury’s question after it had instructed on aiding and abetting, noting it was “now turn[ing] to the second issue which was the [jury] question” and then instructed as follows: “[Y]ou have heard all of the evidence in this case that you are going to hear. I have also given you all of the instructions that will be provided to you in this case. These questions are questions you will need to answer among yourselves in your deliberative process.”
As to the court’s failure to clarify that “mere purchase or disposal of components was not sufficient to prove knowing participation,” there was no error. While “[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply,” “[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion... to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here, the court’s given instructions adequately covered the jury’s question. The court appropriately referred the jury back to the instructions that fully and completely outlined these principles. Those instructions told the jury, “the People must prove that the defendant knowingly participated in the beginning or intermediate steps to process or make a controlled substance,” which required proof that “[t]he defendant engaged in the synthesis, processing, or preparation of a chemical that is not itself a controlled substance” and “[t]he defendant knew that the chemical was going to be used in the manufacture of a controlled substance.”
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.
Only in letters to the trial court dated September 29, 2006, and November 2, 2006, did defendant state Cominos took the 28-page letter without his permission. Notably, on August 30, 2006 and September 12, 2006 at Marsden hearings, defendant said no such thing.