Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD205299, Desiree Bruce-Lyle, Judge.
IRION, J.
A jury convicted James Bernard Manning of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); being under the influence of methamphetamine (Health & Saf. Code, § 11550 subd. (a)); and possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060). Manning was acquitted of charges of receiving stolen property (Pen. Code, § 496, subd. (a)) and possession of less than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). The jury hung on a charge of possession of ammunition by a convicted felon (Pen. Code, § 12316, subd. (b)(1)), and the charge was later dismissed. After conviction, Manning moved for a new trial, based upon newly discovered evidence. (Pen. Code, § 1181, subd. 8.) The trial court denied the motion and Manning appeals. We determine the trial court did not abuse its discretion in denying the motion and, accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
As Manning's new trial motion was directed only to his drug convictions, we state the facts relevant to those convictions, viewed in the light most favorable to the judgment. (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 492, fn. 1; Superior Gunite v. Ralph Mitzel Inc. (2004) 117 Cal.App.4th 301, 304, fn. 1.)
Early in the morning of March 13, 2007, sheriff's department deputies conducted a Fourth Amendment search of Manning's house. Throughout the search, Manning was confrontational, agitated and was sweating profusely. Manning's pupils were dilated and his pulse was 104 to 108 beats per minute — well above the average person's pulse rate of 60 to 90 beats per minute. Manning had a white, cakey residue on his tongue, which is common in an individual who smokes methamphetamine. Manning told a deputy that he had used methamphetamine the previous night. Based upon Manning's symptoms, physical appearance and behavior, Deputy Patrick McEvoy, one of the deputies conducting the search, believed Manning had used methamphetamine more recently and that he was under the influence of methamphetamine. A later blood draw and analysis showed Manning's blood contained 53 nanograms per milliliter of amphetamine and 659 nanograms per milliliter of methamphetamine.
In the search of Manning's house, deputies found usable quantities of methamphetamine and marijuana, prescription drugs, plus five glass pipes used for smoking methamphetamine. The methamphetamine was located in various items found in the kitchen and in a bedroom Manning shared with a woman named Valerie. The pipes were found in various locations in the house, including the bedroom closet, a jewelry chest, and a china hutch. On a small tray on the bedroom nightstand, in single-use silver packs, deputies found two pills: one was Alprazolam, the other Phenobarbital. Both are prescription drugs. Deputies did not find a prescription for the pills in Manning's name. Manning was arrested and charged with various offenses, including possession of a controlled substance; being under the influence of methamphetamine; and possession of a controlled substance, without having a prescription.
The People tried the case on the theory Manning smoked methamphetamine and took prescription drugs to "come down" from his methamphetamine use, and that this accounted for the presence of the drugs found in his house and in his system on the day of the search. The prosecution's expert testified that Manning's blood analysis was positive for amphetamine and methamphetamine. According to the expert, the forensic blood tests ruled out the presence of Ritalin. Also, because the drug Dexedrine, a prescription amphetamine, is metabolized by the body differently than is methamphetamine, it would not produce the 10-to-one ratio of amphetamine to methamphetamine found in Manning's blood analysis. Although Desoxyn, a prescriptive form of methamphetamine, is sometimes, although rarely, prescribed for conditions such as obesity, attention deficit disorder or narcolepsy, the presence of 659 nanograms per millileter of methamphetamine in Manning's blood was not consistent with therapeutic use of that drug. Desoxyn is prescribed in Mexico and, when prescribed there, is used at the same therapeutic levels.
The defense was that on the morning of the search, Manning, who had attention deficit disorder ("ADD"), used Desoxyn, a Ritalin substitute he had obtained from a Mexican pharmacy, which accounted for his physical condition and appearance; the methamphetamine and pipes found in his house belonged to Valerie, a woman who abused his hospitality, and he did not know of their existence; and the Alprazolam and Phenobarbital pills, found on the bedroom nightstand, were being held by Manning for their owner, a seizure-prone friend who had left them at the house. Manning denied using crystal methamphetamine, and testified he did not know of its presence in the various items found by police in his bedroom. A defense toxicologist testified police did not follow standard protocol for determining whether Manning was under the influence of methamphetamine at the time of his arrest, and the forensic blood testing did not determine the type of methamphetamine found in Manning's blood. The expert testified that the drug Desoxyn could produce a blood test result positive for methamphetamine.
The jury found Manning guilty of the drug charges.
After conviction, but before sentencing, Manning moved for a new trial based upon newly discovered evidence. In his motion papers, Manning asserted that after trial he had located Valerie and that had she testified at trial, "it is possible" her testimony would have bolstered that of other defense witnesses and seriously eroded the prosecution's theory that Manning and Valerie jointly possessed the drugs. He also claimed that after trial he was able to retrieve belongings from his Mexican timeshare, including a bottle of Desoxyn, and that had the medication been presented to the jury and experts, it "might have [constituted] additional evidence which could have resulted In reasonable doubt."
Manning's new trial motion was supported by his declaration. In the document, Manning averred, among other things, that: he had attempted to locate Valerie through acquaintances and friends, but no one knew where he could find her; the only lead given to him was that Valerie might have gone to New York, which provided him no direction to "even start looking for her"; he did not use or ingest methamphetamine; the only substance he took was prescription medication, which he had obtained from a Mexican pharmacy; after trial he paid monies owed to the owners of his Mexican condo and was able to obtain the prescription medication; he gave "the substance" to his attorney to test; and "[i]f the substance would have resulted in a positive showing as the signature drug methamphetamine then the jury could have been presented the pills and the findings and the experts on both sides would have been able to address this matter and it would be probable that... reasonable doubt of a more substantial nature would have been presented."
In support of the motion, defendant's counsel also provided the court with an unauthenticated letter, purportedly written by Valerie to Manning, postmarked from Pennsylvania. In that letter, Valerie stated that she wanted to know what she could do to "accept the responsibility of whatever wrongful charges [Manning was] facing," but clarified she "was not able to fly to San Diego nor implicate myself." No supporting declaration from Valerie was attached to the new trial motion papers.
The trial court denied the motion. The court found Manning had not used reasonable diligence in locating Valerie; her availability remained in question; and her existence did not constitute new evidence. The court then found that the Desoxyn prescription did not constitute new evidence; there was substantial expert testimony presented at trial as to whether the medication would produce a false positive for methamphetamine in a forensic blood test; and were the jury presented with the evidence, it is not reasonably probable that it would have rendered a different result. Manning appeals.
On appeal, Manning contends the trial court abused its discretion by denying his new trial motion. Specifically, he contends: (1) the mere existence of a letter purporting to be from Valerie, a witness whom the prosecutor "derided as a fabrication," undermines confidence in the judgment and establishes that the trial court erred in not granting the motion; and (2) had Manning been able to present the Desoxyn pills obtained from his Mexican condo at trial, there would have been "graphic verification" of his testimony that he took Desoxyn, not Ritalin or Dexedrine, on the morning of the search, thereby explaining his methamphetamine-positive blood test and rendering a more favorable result on retrial probable.
DISCUSSION
Manning moved for a new trial under Penal Code section 1181, subdivision 8, based upon his declaration, and the unauthenticated letter purportedly written by Valerie to Manning which was submitted to the court before the hearing. We conclude that there is no basis for interfering with the trial court's denial of that motion.
Penal Code section 1181, subdivision 8 provides in relevant part: "When a verdict has been rendered... against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]... [¶] 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial."
" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citations.] ' "[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
Although granting or denying a motion for new trial on the ground of newly discovered evidence is a matter that lies within the sound discretion of the trial court, in ruling on such a motion the court must consider the following factors: (1) that the evidence, and not merely its materiality, is newly discovered; (2) that the evidence is not merely cumulative; (3) that it would render a different result probable on retrial of the cause; (4) that the party could not with reasonable diligence have discovered and produced it at trial; and (5) that these facts have been shown by the best evidence of which the case admits. (Delgado, supra, 5 Cal.4th at p. 328; People v. Beyea (1974) 38 Cal.App.3d 176, 202.) By statute, a new trial motion based on newly discovered evidence must be supported by an affidavit of the witness through whom the evidence is to be given. (Pen. Code, § 1181, subd. 8; People v. Ethridge (1962) 204 Cal.App.2d 279, 282-283; People v. Beeler (1995) 9 Cal.4th 953, 1005 (Beeler).) If an absent witness is to be produced, the affidavit must show that the witness is available and willing to testify. (Pen. Code, § 1181, subd. 8; People v. Gompertz (1951) 103 Cal.App.2d 153, 163 (Gompertz).)
Of course, the newly discovered evidence upon which a new trial motion is made must be competent, relevant, and material; if it is not, it would be inadmissible and could not affect the outcome of a new trial. And, at the end of the day, the newly discovered evidence must be of such strength as to objectively indicate the probability of a different result in a retrial with that evidence produced. (Beeler, supra, 9 Cal.4th at p. 1004; People v. Clauson (1969) 275 Cal.App.2d 699, 706.)
Analysis
Applying the above principles, we reject Manning's claim that the "mere existence" of Valerie's unauthenticated letter undercuts the judgment and establishes that the court abused its discretion in denying his new trial motion. Manning's motion was not supported by an affidavit from Valerie and, as such, was legally insufficient; on that basis alone the trial court would have been justified in denying the motion. (Beeler, supra, 9 Cal.4th at p. 1005.)
Manning argues that the trial court should have granted a continuance to allow defense counsel to "develop the motion further," which we understand to mean to procure an affidavit from Valerie. Although a trial court has the discretion to grant a continuance to allow the defendant time to procure necessary witness affidavits, our review of the record does not show that counsel asked for a continuance. Even had counsel done so, based upon the evidence and information presented to the court, we cannot say that a continuance would have been warranted. (See People v. Johnson (1952) 108 Cal.App.2d 790, 792 [no abuse of discretion in not granting continuance where showing is insufficient].) The trial court found Manning had not proceeded with reasonable diligence to locate Valerie and, further, that she was not available as a witness, as evidenced by the statement in her letter that she was not willing to implicate herself. (People v. Owens (1967) 252 Cal.App.2d 548, 553 [no abuse of discretion denying continuance to obtain an affidavit from witness where defendant had not used reasonable diligence to locate the witness]; Gompertz, supra, 103 Cal.App.2d at p. 163 [affidavit did not positively aver witness's willingness to be present and testify; trial judge could conclude that the witness might not come or might claim privilege against self-incrimination].) Under these circumstances, we perceive no error.
Manning asserts the lack of diligence was more attributable to counsel than to him, which should have militated in favor of granting the new trial motion. Manning's argument is not developed, nor is there any record citation which would support such an assertion. We reject the contention without consideration. (People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228 [a reviewing court is not required to scrutinize the record to find support for counsel's assertions]; People v. Stanley (1995) 10 Cal.4th 764, 793 [it is not the role of a reviewing court to independently seek out support for appellant's conclusory assertions, and such contentions may be rejected without consideration].)
We similarly reject Manning's claim that the failure of the trial court to grant a new trial based upon the posttrial procurement of his bottle of Desoxyn from the Mexican condo constituted an abuse of discretion. At trial, Manning testified that the Ritalin substitute he took the morning of the search was Desoxyn, which he had obtained in Mexico. Thus, the Mexican prescription bottle of Desoxyn, although providing "graphic verification" of Manning's testimony, was cumulative and did not warrant the granting of a new trial. (Delgado, supra, 5 Cal.4th at p. 328; People v. Trujillo (1977) 67 Cal.App.3d 547, 556.)
Moreover, even if cumulative, the evidence was not of sufficient strength to show a reasonable probability that a jury would render a different result on retrial. (See People v. Shepherd (1936) 14 Cal.App.2d 513, 519 [even newly discovered cumulative evidence may call for a new trial if it indicates the reasonable probability of a different result on retrial and that appellant, without any fault or negligence, was denied a fair trial].) Manning's supporting declaration merely stated "[i]f the substance [tested from the newly obtained Mexican prescription bottle] would have resulted in a positive showing as the signature drug methamphetamine," then "it would be probable that... reasonable doubt of a more substantial nature would have been presented." Not so.
At trial, Manning testified he took Desoxyn; and both experts testified that Desoxyn, a prescriptive form of methamphetamine, could produce a blood test result positive for methamphetamine. However, the prosecution expert also testified that the presence of 659 nanograms per millileter of methamphetamine in Manning's blood was not consistent with therapeutic use of that drug (Desoxyn).
Manning has not shown the trial court erred in denying his motion for a new trial based upon newly discovered evidence. We will affirm.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.