Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. PEF007720, Judith C. Clark, Judge.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant Edward Holland Horowitz.
Law Offices of Allen G. Weinberg and Allen G. Weinberg, for Defendant and Appellant Kristina Horowitz.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
Defendants Edward Horowitz (Edward) and Kristina Horowitz (Kristina) were jointly charged and tried in front of separate juries for several offenses related to running a methamphetamine lab. Each jury convicted its respective defendant of manufacturing methamphetamine (Health & Saf. Code, § 11379.6, subd. (a); count 1), possessing methamphetamine while armed (§ 11370.1; count 2), child endangerment (Pen. Code, § 273a, subd. (a); count 3), possession of methamphetamine (§ 11377, subd. (a); count 4), and disposing of hazardous waste. (§ 11374.5, subd. (a); count 5). Edward was found guilty of being under the influence while immediately possessing a loaded, operable firearm (§ 11550, subd. (e); count 6), and Kristina was convicted of being under the influence of methamphetamine. (§ 11550, subd. (a); count 7.) Each defendant’s jury found true the special allegations that substances containing methamphetamine were found to exceed three gallons of liquid by volume and one pound of solid substance by weight (within the meaning of § 11379.8, subdivision (a)(3)), and defendants were personally armed with a firearm. (Pen. Code, § 12022, subd. (c).)
Because the parties share a surname, they will hereafter be referred to by their given names; not out of any familiarity or disrespect, but rather, for clarity of reference. (In re Marriage of Peters (1997) 52 Cal.App.4th 1487, 1489, fn. 2.)
All further statutory references will be to the Health and Safety Code unless otherwise indicated.
Penal Code section 273a will hereafter be referred to simply as “section 273a.”
Edward was sentenced to a term of 16 years and 4 months in prison which consisted of the upper term of seven years on count 1, three years for the quantity enhancement, and four years for the firearm enhancement. As to count 2, the trial court imposed a one-year term. For count 3, the trial court imposed one year and four months. On count 4, the trial court stayed a two-year term. It imposed a concurrent three-year term for count 5. Finally, for count 6, it sentenced Edward to two years and then stayed the sentence.
Kristina was sentenced to a total term of imprisonment of 12 years and 4 months in state prison, which consisted of the lower term of three years for count 1, three years for the quantity enhancement, and four years for the firearm enhancement. On count 2, the trial court sentenced her to one year. For count 3, a sentence of one year and four months was imposed. As to count 4, a two-year term was stayed pursuant to Penal Code section 654. With respect to count 5, a three-year term was stayed. Finally, the trial judge imposed a concurrent 90-day term for count 7.
On appeal, defendants raise numerous issues, among them insufficiency of the evidence to support the charges and enhancements, failure to instruct on unanimity and lesser included offenses, prosecutorial misconduct, failure to conduct a proper Marsden hearing, and sentencing issues. Each defendant joins in the other’s arguments to the extent they inure to his or her benefit. We reject all of defendants’ contentions, with one exception: we find that simple possession is a lesser included offense of possession of methamphetamine while armed. Therefore, we reverse defendants’ convictions for possessing methamphetamine. In all other respects, we affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
To provide an overview, evidence was presented at trial establishing that a methamphetamine lab was operating on the property on which Edward, Kristina, and their 15-year-old daughter, R., resided. Investigating officers testified that all the equipment and ingredients necessary to produce methamphetamine were found at that location.
Rather than set out a separate statement of facts and procedural history, we will incorporate the portions of the evidence relevant to our discussion as to each defendant’s separate contentions.
DISCUSSION
A. There Was Substantial Evidence to Support Defendants’ Convictions for Child Endangerment.
Edward and Kristina contend there was insufficient evidence of child endangerment to support their convictions. They allege that R. could not have been exposed to toxic chemicals, rusty razor blades or guns because (1) she had not been home for three days, (2) no manufacturing occurred in the trailer, and (3) R. did not have a key to the house where the lab was located. Having grown up on the property, R. was familiar with the physical hazards and would have known how to avoid falling down in the dark, tripping into sewage ditches, or becoming entangled in electrical power lines. She was taught the danger of firearms. Finally, the fact that Kristina was under the influence at the time of the search would not have endangered R. as R. was not present in the trailer.
In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Substantial evidence is defined as “evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Diaz (1992) 3 Cal.4th 495, 534.)
“Violations of section 273a, subdivision (a) can occur in a wide variety of situations. [Citation.] ‘The number and kind of situations where a child’s life or health may be imperiled are infinite. . . . Thus, reasonably construed, the statute condemned the intentional placing of a child, or permitting him or her to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.’ [Citation.]” (People v. Hansen (1997) 59 Cal.App.4th 473, 479.) Public policy supports the protection of children against risks they cannot anticipate. The felony child abuse statute ‘was enacted in order to protect the members of a vulnerable class from abusive situations in which serious injury or death is likely to occur.’ [Citation.]” (People v. Toney (1999) 76 Cal.App.4th 618, 622 (Toney).)
“Section 273a, subdivision (a) ‘is an omnibus statute that proscribes essentially four branches of conduct.’ [Citation.] . . . [I]t provides: ‘Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.’ [Citation.]” (People v. Valdez (2002) 27 Cal.4th 778, 783, fn. omitted (Valdez).)
The term “willfully,” as used in section 273a, includes criminally negligent conduct. (Valdez, supra, 27 Cal.4th at pp. 787-788.) “Criminal negligence is ‘“aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . .”’ [Citation]. ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.”’ [Citations.] Under section 20, criminal negligence ‘may be sufficient to make an act a criminal offense, without a criminal intent.’ [Citation.]” (Id. at p. 783.) “The [California] Legislature apparently sought to avoid requiring a subjective mental state in the statute. [Citation.]” (Id. at p. 790.)
As there was no evidence that R. was injured, the only issue raised is whether Edward and Kristina willfully caused or permitted R. to be placed in a situation where her person or health was endangered, as relevant under the fourth type of criminally negligent conduct.
We find there was ample evidence supporting defendants’ convictions for child endangerment.
Riverside County Sheriff’s Investigator Bender characterized the defendants’ lab as a small scale “Beavis” lab that was a combination scavenging and manufacturing operation. He described the multi-phased manufacturing process Edward utilized to “cook” methamphetamine, and testified regarding the multifarious dangers associated with each stage of the methamphetamine manufacturing process.
In the pseudoephedrine-pulling stage, pseudoephedrine, red phosphorus, and iodine are mixed together, “cooked,” and filtered, resulting in an acidic liquid containing methamphetamine. Camping fuel or lighter fluid is then poured on top of the acidic liquid, causing two layers of liquid to appear: Fuel is the top portion of the liquid and the acidic portion remains on the bottom (this product is known as an acidic biphasic liquid).
The most common danger in manufacturing methamphetamine is the risk of fire. Flammable solvents such as camping fuel or lighter fluid give off vapors. Once a heat source is applied to the solvent, it is the vapors rising off the liquid that are flammable. Exposing these vapors to an open flame from a water heater or a pilot light, or an electrical discharge of a sparking light switch, could cause an explosion and fire.
Phosphene fumes, a by-product of combining red phosphorous and iodine, are a deadly gas. Breathing in phosphene gas causes irreversible damage leading to death. While it is not the most common danger of manufacturing, it is the greatest risk to a person’s health.
Investigator Bender testified, “Even if you breathed [in phosphene gas] at a trauma center, you would still die.”
Red phosphorus is a flammable solid; once it begins to burn, it is very difficult to extinguish. If red phosphorous is heated in an airless environment, it turns into white phosphorous. Once it is exposed to air, it catches on fire and cannot be put out. Rather, it must be allowed to burn itself out.
Sodium hydroxide is corrosive to mucous membranes. If left upon skin, it will remove the moisture underneath the skin and cause skin to decay.
Sheriff’s Investigator Salisbury testified about the dangers R. faced in living on the property. He is a Drug Endangered Children Project coordinator, investigating drug labs, who assists children impacted by drug labs by obtaining medical care and follow up services. His training included how to discover dangers to children in a drug manufacturing environment. He stated that in most cases, children are not actually injured, thus the investigation turns toward searching for potential dangers that subject children to harm.
In reconnoitering the property for threats to a child’s safety, Investigator Salisbury detected physical obstructions, biological hazards, and toxic chemicals. He smelled an odor of propane wafting around the front door of the trailer. Denatured alcohol and acetone, both flammable liquids, were stored in metal cans on the second floor of the structure. Rags that were used for solvents were stored on the second floor of the structure. Flammable liquids could be dispersed throughout the building and transferred to other areas of the property.
Electrical lines from the trailer to the structure ran along the ground, and the trailer was so cluttered that if the lines were to ignite, it would be difficult for three people to safely evacuate. Additionally, there were rusty razor blades in the interior of the trailer. These physical impediments were dangerous to anyone, regardless of age.
Iodine crystals were found in jars in both the trailer and the structure. Iodine is an oxidizing agent that removes oxygen from the air. When the container is sealed, the iodine remains in crystallized form; when unsealed, iodine turns into a gas and vaporizes into the air. Even when the jars are sealed, iodine escapes from the jar, as evidenced by brown staining around the jars and in the buckets.
As the chemicals were dangerous even at a very low level, being in that environment would require a self-contained breathing apparatus in order remain protected from exposure; they could inflict respiratory failure and heart, liver, and kidney problems.
Two bags of methamphetamine were located by the front door of the trailer and on a table. There were loaded firearms within the R.’s reach: three loaded rifles were in a nearby closet and two loaded handguns were underneath a seat cushion on a bench just inside the trailer door. “Storing loaded firearms in a home occupied by children without denying the children access to the weapons creates a potential peril under the statute. [Citation.]” (People v. Hansen, supra, 59 Cal.App.4th at pp. 479-480.)
Finally, water containing human urine and feces ran down a dirt trench surrounding the trailer.
R. was endangered, even though she was not in the home when the police entered onto the property. R. had lived at the property longer than three days—there was sufficient evidence that she continually lived at the property. The danger posed by the methamphetamine laboratory was not limited to the moment the police search occurred, but continued for as long as the laboratory was there. The presence of a methamphetamine laboratory, and the storage of chemicals used in its manufacture, are sufficient grounds for a conviction of child endangerment. (People v. Odom (1991) 226 Cal.App.3d 1028, 1033-1034.) The trailer, structure, and outlying property contained several dangers that any reasonable person would understand posed risks to a child living in such a setting. Kristina and Edward willfully exposed R. to danger that was likely to produce great bodily harm. The elements of section 273a were met. We need not reach the issue of whether methamphetamine was manufactured in the house or at another site. (Toney, supra, 76 Cal.App.4th at p. 623.)
In sum, the acute and chronic hazards to which R. was subjected substantiated defendants’ convictions for felony child endangerment.
B. CALJIC No. 9.73 Does Not Require an Act Less Culpable Than Is Required by Section 273a.
Section 273a describes two crimes for indirect child endangerment cases. Subdivision (a) makes it a felony to willfully cause or permit a child to be placed in a situation where the child’s health is endangered. Subdivision (b) makes it a misdemeanor when a person causes or permits a child to be placed in a situation where the child may be endangered.
Kristina claims that CALJIC No. 9.73 wrongfully describes an essential element of the offense because it allowed her to be convicted of a felony when R. was placed in a situation that could possibly endanger the child. She asserts that to be convicted of a felony, CALJIC No. 9.73 should instruct the jury that it could only convict her if the child was placed in a situation likely to produce great bodily injury and actually endangered the child. Because the statute requires felony convictions to be founded upon circumstances where a child is “actually endangered,” and CALJIC No. 9.73 allows a felony conviction when the child “may be endangered,” the instruction violated her due process right to have each element proved beyond a reasonable doubt.
Section 273a reads in pertinent part:
“(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
“(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.” (Italics added.)
The trial court gave a modified version of CALJIC No. 9.73. It reads:
We note that the misdemeanor child-endangerment instruction, CALJIC No. 16.170, tracks the same language.
“[Defendant is accused [in Count[s] ] of having violated § 273a, subdivision (a) of the Penal Code, a crime.]
“Every person who, under circumstances or conditions likely to produce great bodily harm or death, has care or custody of a child and willfully causes or, willfully and as a result of criminal negligence, permits the child to be placed in a situation where his or her person or health may be endangered, is guilty of a violation of Penal Code § 273a, subdivision (a), a crime.
“The word “willfully,” as used in this instruction, means with a purpose or willingness to commit the act or make the omission in question. The word “willfully” does not require any intent to violate the law, or to injure another, or to acquire any advantage.
“In the crime charged in the information, there must exist a union or joint operation of act or conduct and either general criminal intent or criminal negligence.
“[To establish general criminal intent it is not necessary that there should exist an intent to violate the law. A person, who intentionally does that which the law declares to be a crime, is acting with general criminal intent, even though [he] [she] may not know that the act or conduct is unlawful.]
“[‘Criminal negligence’ refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for danger to human life or to constitute indifference to the consequences of that conduct. The facts must be such that the consequences of the negligent conduct could reasonably have been foreseen and it must appear that the danger to human life was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent conduct.]
“Unjustifiable physical pain or mental suffering is pain or suffering which is not reasonably necessary or is excessive under the circumstances.
“Great bodily harm refers to significant or substantial injury and does not refer to trivial or insignificant injury.
“If a child is placed in a situation likely to produce great bodily harm or death, it is not necessary that actual bodily injury occur in order to constitute the offense. However, if great bodily injury does occur, its nature and extent are to be considered in connection with all the evidence in determining whether the circumstances were likely to produce great bodily harm or death.
“In order to prove this crime, each of the following elements must be proved:
“1. A person who had care or custody of a child willfully caused or, willfully and as a result of criminal negligence, permitted the child to be placed in a situation where his or her person or health may be endangered; and
“2. The person’s conduct occurred under circumstances likely to produce great bodily harm or death.” (Italics added.)
Section 273a criminalizes endangering a child. Child abuse includes indirect abuse where children are willfully permitted to remain in a perilous environment. (Valdez, supra, 27 Cal.4th at pp. 784, 790.) “Public policy supports the protection of children against risks they cannot anticipate. The felony child abuse statute ‘was enacted in order to protect the members of a vulnerable class from abusive situations in which serious injury or death is likely to occur.’” (Toney, supra, 76 Cal.App.4th at p. 622.)
Where the defendant is charged with indirect abuse, the jury must be instructed as to willfulness and criminal negligence. (Valdez, supra, 27 Cal.4th at p. 791.) Criminal negligence is relevant to liability for endangerment under section 273a, subdivision (a). (People v. Kinkead (2000) 80 Cal.App.4th 1113, 1120.) “Criminal negligence” is defined as conduct that is willful and not accidental; it is such a gross departure from how an ordinarily prudent or careful person would act under similar circumstances as to be incompatible with a proper regard for human life. (Valdez, supra, 27 Cal.4th at pp. 790-791.) The test used to determine criminal negligence is an objective one: whether “a reasonable person in defendant’s position would have been aware of the risk involved.” If a reasonable person in defendant’s position would have been aware of the risk involved, defendant is presumed to have had such an awareness. (Id. at p. 783.)
CALJIC No. 9.73 lists the elements of indirect child abuse as follows: (1) willfully causing or placing a child in a situation where her person or health may be endangered, and (2) the conduct occurred under circumstances likely to produce great bodily harm. While CALJIC No. 9.73 does not track the exact language of the felony portion of the statute, it does not, a fortiori, misstate the law.
The primary difference between the two subdivisions of section 273a is that subdivision (a) requires the proscribed conduct to occur under “circumstances or conditions likely to produce great bodily harm or death,” whereas subdivision (b), a misdemeanor, has no such requirement. (Valdez, supra, 27 Cal.4th at p. 783, fn. 3.) Great bodily harm refers to significant or substantial injury, but not trivial or insignificant injury. (People v. Cortes (1999) 71 Cal.App.4th 62, 80.) If the act is done under circumstances or conditions likely to produce great bodily injury or death, it is a felony. Less aggravated actions, which are “other[] than those likely to produce” great bodily harm, is deemed misdemeanor conduct. (People v. Deskin (1992) 10 Cal.App.4th 1397, 1401)
Kristina’s assertion that section 273a requires felony convictions to be founded upon circumstances where a child is “actually endangered” is inaccurate. There is no requirement that there actually be great bodily injury or that the risk be life threatening. For a conviction, the statute only requires a defendant’s conduct result in a situation where there is a likelihood of great bodily injury. (People v. Odom, supra, 226 Cal.App.3d at pp. 1032, 1033; People v. Caffero (1989) 207 Cal.App.3d 678, 683-684; People v. Sargent (1999) 19 Cal.4th 1206, 1223.)
The gravamen of an indirect child abuse offense is the commission or omission of an act that leads to the possibility of danger in that the phrase “likely to produce” modifies the phrase “circumstances or conditions.” The actus reus required for a felony conviction is for the negligent conduct to give rise to a likelihood of risk of harm because the negligent act is aggravated, gross, or reckless. (Valdez, supra, 27 Cal.4th at p. 788.) “For the felony punishment there is no requirement that the actual result be great bodily injury. The statute is intended to protect a child from an abusive situation in which the probability of serious injury is great.” (People v. Jaramillo (1979) 98 Cal.App.3d 830, 835, italics added.)
CALJIC No. 9.37 properly informs the jury that “[i]t is not necessary that actual bodily injury occur in order to constitute the offense.” However, a jury must find that a defendant “willfully cause[d] or . . . willfully permit[ted] a child to be placed in a situation” where there is a risk of serious injury. The instruction requires a causal relationship be proved: before a jury can find a defendant guilty of a felony, it must find that a person caused or committed an act that could have a potentially dangerous effect in the future. The statute criminalizes the act of performing an act that can have a harmful effect in the future, that is, “may endanger” a child. This comports with the statutory intent to protect children from an abusive situations in which the probability of serious injury is great.
Therefore, we conclude that CALJIC No. 9.73 correctly delineates the elements of felony child endangerment. Our conclusion finds support in the following cases.
In People v. Deskin, supra, 10 Cal.App.4th at pp. 1401-1403, the court held the phrase “under circumstances other than those likely to produce great bodily harm or death” in the misdemeanor portion of section 273a was not void for vagueness. Read within the context of the statute, the phrase apprised defendants of the proscribed behavior; the statute condemned the intentional placing of a child, or permitting him or her to be placed, in a situation in which serious physical danger or a health hazard to the child is reasonably foreseeable. (Id. at p. 1402, citing People v. Beaugez (1965) 232 Cal.App.2d 650, 656-658, italics added.)
Recently, in People v. Wilson (2006) 138 Cal.App.4th 1197, 1201, the court determined that the term “likely” in the phrase “likely to produce great bodily injury or death” means “a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death.” In the context of the child endangerment statute, this definition of “likely” fairly balanced the Legislature’s intent to protect vulnerable children with the level of seriousness required for a felony conviction. (Id. at p. 1204.)
In summary, section 273a requires the prosecution prove a serious, well-founded, and potential risk that is reasonably foreseeable. CALJIC No. 9.37 properly establishes the crime by requiring that the jury find that a defendant caused or permitted a child to be placed in a situation where his health may be endangered and a defendant’s conduct occurred under circumstances likely to produce great bodily harm or death.
C. It Was Unnecessary for the Trial Court to Have Instructed on the Lesser Included Misdemeanor Child-Endangerment Offense.
Kristina contends the trial court failed to instruct the jury sua sponte on a lesser included misdemeanor child-endangerment offense. She asserts that a misdemeanor instruction was warranted as “it [was] questionable whether [Kristina’s] actions were committed ‘under circumstances or conditions likely to produce great bodily harm or death.’” R. underwent a physical examination that revealed she was well; her blood and urine tests were free of drugs and other toxins. Although she concedes that a loaded gun was a hazard that could lead to serious injury, Kristina argues that R.’s exposure to rusty razor blades and slip and fall hazards were less likely to produce great bodily injury and thus qualified for a misdemeanor child endangerment instruction. She intimates that a jury reasonably could have convicted her of the lesser charge had it been so instructed. We disagree.
A trial court has a sua sponte duty to instruct on a lesser included offense if the record contains substantial evidence that would support a guilty verdict on the lesser offense, but not the greater. (People v. Waidla (2000) 22 Cal.4th 690, 733.) Misdemeanor child endangerment is a lesser included offense of felony child endangerment. (People v. Sheffield (1985) 168 Cal.App.3d 158, 167, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.)
However, a trial court has no duty to instruct on a lesser included offense if the evidence was such that a defendant was guilty, if at all, of the greater offense. (People v. Greenberger (1997) 58 Cal.App.4th 298, 372.) The mere existence of “any evidence” does not justify instructions on a lesser included offense. The evidence must be substantial to allow a reasonable jury to find that the defendant is guilty of the lesser offense. “‘“‘Substantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’”’ [Citation.]” (Valdez, supra, 27 Cal.4th at p. 116.)
We find that it was unnecessary for the trial court to have instructed on the lesser included misdemeanor child-endangerment offense. The evidence was overwhelming that R. was subjected to substantial hazards likely to produce great bodily injury, rather than exposure to a de minimus threat.
Investigator Salisbury detailed the myriad risks R. was exposed to: access to loaded firearms and methamphetamine, exposure to human excrement, electrical wiring, flammable liquids and gases, and caustic chemicals. The chemical agents subjected R. to several health threats including respiratory failure as well as heart, liver, and kidney problems. As these considerable hazards subjected R. to great bodily injury, we conclude instructions for felony child endangerment only, and not the lesser misdemeanor child endangerment, were proper.
D. As Child Endangerment Is a Continuing Crime, There Was No Need for a Unanimity Instruction.
Edward and Kristina argue that the trial court was required to give a unanimity instruction as the prosecution provided a “laundry list” of separate acts, each of which constituted a separate crime that the jury should have to unanimously agree upon. They maintain there is no assurance that the jury agreed upon any particular endangering act or neglect when the jury convicted them of child endangerment.
Additionally, Kristina complains that some jurors may have believed R. was endangered because Kristina was under the influence “while [she] was going to drive to the mall to pick her up,” while others may have believed the crime constituted Rachael’s access to multiple firearms.
Edward also contends that a unanimity instruction was required in that some jurors may have believed that he placed R. in danger by exposing her to dangerous chemicals; some could have believed the danger resulted from the weapons in the trailer; and others could have believed the danger was having a parent under the influence.
Edward claims it is significant that his defense to each of these alleged acts of child endangerment was not identical. For example, he contends he never exposed R. to dangerous chemicals since the chemicals on the table were not methamphetamine and that someone else put the chemicals on his property without his knowledge. He adds that R. had not been exposed to narcotics as she had not been home for three days; the mere fact that chemicals were present while she was out of the home does not inexorably lead to the conclusion that they were there when she was home.
With respect to the allegation that R. was exposed to firearms, Edward’s defense was that he had taught R. at an early age about guns and thus they were not a danger to her. Finally, he asserts R. was never endangered by a parent who was under the influence as he was not impaired, nor was there any evidence that he was under the influence when R. was at home.
We conclude that it was unnecessary for the trial court to have given a unanimity instruction for two reasons. First, the prosecution had elected one specific event, manufacturing methamphetamine, as the operative act to prove R. was endangered. Second, section 273a, subdivision (a) defines child endangerment as “circumstances or conditions likely to produce great bodily harm or death.” The phrase “circumstances or conditions” applies to events that occur over the course of time. Manufacturing methamphetamine is the multi-phased processing of raw materials into a finished narcotic product by means of a small or large scale operation. The entire procedure constitutes a single continuous course of conduct, and as such, is an exception to the unanimity requirement.
1. Election by Prosecution.
Criminal defendants are guaranteed a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Napoles (2002) 104 Cal.App.4th 108, 114 (Napoles).) The general rule is: If one criminal act is charged, but the evidence shows the commission of more than one act, then either the prosecutor must elect the specific act relied upon to prove the charge, or the trial court has to instruct the jury that it must unanimously agree the defendant committed the same specific criminal act. (People v. Maury (2003) 30 Cal.4th 342, 422; Napoles, supra, 104 Cal.App.4th at p. 114.) If there is no election by the prosecutor, a unanimity instruction must be given sua sponte. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534; People v. Madden (1981) 116 Cal.App.3d 212, 215-219; People v. Dieguez (2001) 89 Cal.App.4th 266, 274-275 (Dieguez); People v. Riel (2000) 22 Cal.4th 1153, 1199.) A unanimity instruction is only required when jurors could disagree as to which act a defendant committed and yet convict him of the crime charged. (People v Maury, supra, 30 Cal.4th at pp. 422-423.)
The rationale for giving a unanimity instruction is to eliminate the danger that the defendant will be convicted, even though there is no single offense which all the jurors agree a defendant has committed. Its purpose is to prevent a jury from amalgamating evidence of multiple offenses that were not proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on that count. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The jurors must unanimously agree that a defendant is guilty of a specific crime. (Ibid.)
Kristina contends that the jurors could have been divided as to whether R. was endangered because she was under the influence while she was going to pick R. up at the mall or because she had access to several firearms. We disagree.
In his closing, the prosecutor argued that Kristina endangered R. by permitting her to be placed in a situation where her person or health may be endangered. The prosecutor ticked off a litany of risks: fire, explosion, cross-contamination from toxic chemicals, and exposure to hazardous waste. He stated that Kristina was criminally negligent in that she was on her way to pick up R. at the mall and bring her back to the methamphetamine lab. Kristina’s attempting to return R. to that dangerous environment demonstrates she permitted the child to be placed in a situation where her person or health could be endangered. The prosecutor never stated that Kristina endangered R. by driving to the mall while under the influence.
The prosecution clearly elected the specific act of permitting R. to be exposed to the methamphetamine lab as the operative criminal act. The jury would not have been divided over which criminally negligent act Kristina committed. Since the jury found Kristina aided and abetted the manufacture of methamphetamine and since there was evidence that R. lived on the property up until three days before the search, the jury must have unanimously agreed that Kristina endangered R. by exposing her to the risks associated with manufacturing methamphetamine.
Similarly in his closing argument to Edward’s jury, the prosecutor stated R. was exposed to loaded firearms in the closet and underneath a chair cushion in the trailer. She was also exposed to all the inherent dangers in all phases of manufacturing methamphetamine—risks of fire, explosion, and cross-contamination of toxic chemicals.
The prosecution did not suggest there were multiple acts the jury could rely on to convict defendants of child endangerment. Based on the language of the charging document and the evidence presented, any jury disagreement would have been focused on the exact way the charged offense was committed and not on whether one of several discrete crimes had occurred. Since the prosecutor made an election, there was no need for a unanimity instruction.
2. Course of Conduct Exception.
Both defendants assert the continuous conduct exception does not apply in this case, as each discrete act is a distinct factual scenario that does not fit into the continuous conduct exception. They claim that any one of the various acts could comprise a separate criminal act of child endangerment—these include exposure to flammable solids, liquids, and gas, methamphetamine, drug paraphernalia, raw sewage, electrical wiring, razor blades, loaded firearms, slip and fall hazards, and being subjected to parents who were under the influence of methamphetamine.
The “continuous course of conduct” exception arises in two contexts. Either (1) the acts are so closely connected that they form part of one and the same transaction, and thus one offense or (2) the penal statute contemplates a continuous course of conduct of a series of acts over a period of time. (Napoles, supra, 104 Cal.App.4th at p. 115.) If the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts constitute a continuous course of conduct. (Ibid.) Child endangerment may be charged either as a continuous course of conduct or as a single act. (People v. Ewing (1977) 72 Cal.App.3d 714, 717; Napoles, supra, 104 Cal.App.4th at p. 116; People v. Vargas (1988) 204 Cal.App.3d 1455, 1464.)
“‘The “continuous conduct” rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’” (Dieguez, supra, 89 Cal.App.4th at p. 275.) “Juror unanimity is not required simply because different theories of liability are presented. [Citations.]” (Napoles, supra, 104 Cal.App.4th at p. 116.)
Edward argues the continuous conduct exception does not apply as his defense to each of these alleged acts of child endangerment differed. Edward’s argument misses the point. Section 273a may be violated either by a single act or by a continuous course of conduct. When Edward willfully caused R. to live in the area where he was manufacturing methamphetamine, he allowed her to be in a situation where her health was endangered. Section 273a, subdivision (a) was intended to protect children from “situations in which the ‘probability of serious injury is great.’ [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214, 1220.) The act that created the likelihood of serious injury was R.’s exposure to the risks inherent in the chemical process. The prosecutor’s closing argument focused upon the dangers inherent in manufacturing methamphetamine. Given the state of the evidence, the jury could not have found defendant guilty of manufacturing methamphetamine without also finding that defendant had knowingly permitted R. to be present at the site of the dangerous environment.
Moreover, the crime of manufacturing methamphetamine is an ongoing offense, as is aiding and abetting the manufacture of methamphetamine. (People v. Heath (1998) 66 Cal.App.4th at p. 708.) “[A] unanimity instruction is not required where the criminal acts are so closely connected as to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citations.] This is because in both cases, the multiple acts constitute one discrete criminal event. [Citation.]” (People v. Sanchez (2001) 94 Cal.App.4th 622, 631; accord, Dieguez, supra, 89 Cal.App.4th at p. 275.) Whether a defendant is an aider and abettor or a direct perpetrator, a jury does not need to agree on the theory of culpability so as long as it agreed on a specific crime. (People v. Russo, supra, 25 Cal.4th at p. 1133.)
We find the evidence reflects that the process of manufacturing methamphetamine constitutes a single course of conduct. Where a single course of child-endangering conduct is established, it is error to give a unanimity instruction. (People v. Vargas, supra, 204 Cal.App.3d at p. 1464.) Defendants cannot parse out each step of the manufacturing process so as to transform the contiguous acts of processing a narcotic product into distinct and separate industrial phases and then force a jury to agree on the potential risk of each stage. For these reasons, the court did not err by not instructing on unanimity.
E. Possession of Methamphetamine Is a Lesser Included Offense of Possession of Methamphetamine While Armed.
Edward and Kristina contend they cannot be convicted of both possession of methamphetamine while armed and possessing methamphetamine because simple possession is a lesser included offense of possession of methamphetamine while armed. The People counter that simple possession is not a lesser included offense in that section 11377, subdivision (a) does not prohibit possession of cocaine or heroin whereas section 11370.1, subdivision (a) does. As these two sections involve different controlled substances, the People contend they are two separate crimes that cannot be lesser included offenses of each other. The fact that both statutes prohibit methamphetamine does not make one crime a lesser included offense of the other.
We agree with defendants that simple possession of methamphetamine is a lesser included offense of possessing methamphetamine while armed.
“A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987; People v. Pearson (1986) 42 Cal.3d 351, 355.) The California Supreme Court has defined a lesser included offense as follows: “[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.)
The criteria for determining whether one offense is a lesser included offense of another are currently open to some doubt. Historically, “one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met. The elements test is satisfied when ‘“all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288.)
While the elements test focuses on the definition of a crime in the abstract, “[u]nder the accusatory pleading test, a lesser offense is included within the greater charged offense ‘“if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
In People v. Montoya (2004) 33 Cal.4th 1031, the Supreme Court noted that courts generally use the accusatory pleading test “to determine whether to instruct a jury on an uncharged lesser offense. [Citations.]” (Id. at p. 1035.) The court further noted that some Court of Appeal decisions have concluded the accusatory pleading test only applies when the issue is whether to instruct, and “‘does not apply to considerations of whether multiple convictions are proper.’ [Citations.]” (Ibid.) The Montoya court did not resolve that issue, because it determined that under the circumstances of that case, both the elements test and the accusatory pleading test would yield the same result. (Id. at pp. 1035-1036.)
As our discussion will show, the same is true in this case, making it unnecessary to consider the question left unresolved in Montoya.
Possession of methamphetamine while armed is made criminal by section 11370.1. The statute is violated when a person “unlawfully possesses any amount of [cocaine or cocaine base, heroin, methamphetamine, or phencyclidine] while armed with a loaded, operable firearm . . . .” (§ 11370.1, subd. (a).)
Simple possession of methamphetamine is made criminal by section 11377. The statute is violated when a person “possesses any controlled substance . . . unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state . . . .” (§ 11377, subd. (a).) Methamphetamine is a controlled substance. (§ 11055, subd. (d)(2).)
As is evident from the statutory language, it is not possible for a person to violate section 11370.1, unlawfully possessing methamphetamine while armed with a firearm, without also violating section 11377, by possessing a controlled substance without a prescription. The only difference between the conduct required to violate the statutes is that section 11370.1 requires the additional element of possession of a firearm.
Although we are not aware of any authority directly on point, in an analogous context it is well established that the offense of simple possession of a controlled substance is a lesser included offense of possessing a controlled substance for sale, because the conduct required to commit the greater offense includes all the elements of the lesser. In other words, “one cannot possess narcotics with intent to sell without first being in actual or constructive possession.” (People v. Saldana (1984) 157 Cal.App.3d 443, 456-457; accord, People v. Oldham (2000) 81 Cal.App.4th 1, 16; People v. Magana (1990) 218 Cal.App.3d 951, 954.)
Therefore, under the elements test, any violation of section 11370.1 necessarily violates section 11377, and a person cannot be convicted of both offenses for the same act. Since it is only necessary for a lesser offense to satisfy one test in order to qualify as an included offense for purposes of multiple convictions (People v. Lopez, supra, 19 Cal.4th at p. 288 [“one of two tests” must be met]), it is unnecessary to consider whether the result would be the same under the accusatory pleading test.
There is no dispute that the offenses arose from the same act—being in the trailer with methamphetamine on the table with loaded firearms located on the chair next to the table. Here, possessing methamphetamine while armed includes all the elements of possessing methamphetamine. The possessing methamphetamine while armed offense could not have been committed without committing count 2 as well. Therefore, defendants’ conviction for possessing methamphetamine must be reversed. (People v. Pearson, supra, 42 Cal.3d at p. 355.)
F. CALJIC No. 17.16.1 Is a Correct Statement of Law.
In its final charge to the jury, the trial court gave CALJIC No. 17.16.1, the instruction for the armed enhancement alleged as to Count 1. (§ 11379.6.) CALJIC No. 17.16.1 instructs the jury as to the elements of Penal Code section 12022, subdivision (c). It provides:
“17.16.1 PERSONALLY ARMED WITH FIREARM (Penal Code § 12022, subdivision (c))
“It is alleged in Count One that in the commission of the felony therein described, defendant was personally armed with a firearm.
“If you find a defendant guilty of the crime thus charged, you must then determine whether the defendant was personally armed with a firearm at the time of the commission or attempted commission of the crime.
“The term ‘armed with a firearm’ means knowingly to carry a firearm or have it available for offensive or defensive use.
“The word ‘firearm’ includes a pistol, revolver, shotgun, or rifle. The ‘firearm’ need not be loaded or operable.
“The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that it is true, you must find it to be not true.
“Include a special finding on that question using a form that will be supplied for that purpose.”
Edward contends CALJIC No. 17.16.1 failed to instruct the jury that the arming enhancement requires a “facilitative nexus” between the firearm and the underlying drug offense. In addition, he contends there was insufficient evidence of such a nexus in this case. We reject both contentions.
Kristina joins Edward’s argument to the extent it inures to her benefit.
While it is true that to preserve a challenge, a defendant need not object to an instruction that incorrectly states the law and affects his substantial rights (Pen. Code, § 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7; People v. Hillhouse (2002) 27 Cal.4th 469, 505-506), however he cannot complain on appeal that an instruction was too general or incomplete unless he requested clarifying or amplifying language below. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Cavitt (2004) 33 Cal.4th 187, 204-205.) As Edward failed to request a clarifying instruction in the trial court, he has waived the issue of whether the instruction should have been modified to require a facilitative nexus.
Even if Edward had made a request to modify the instruction, we would still find that the instruction correctly recites the elements for a Penal Code section 12022, subdivision (c) arming enhancement.
The issue of whether CALJIC No. 17.15, the standard jury instruction for Penal Code section 12022, subdivision (a), adequately apprises the jury of the need for a facilitative nexus, is currently pending before the California Supreme Court. (People v. Pitto (2005) 133 Cal.App.4th 1544, review granted Feb. 8, 2006, S139609.)
A defendant may suffer enhanced penalties when he has a firearm available that he can resort to in order to further the commission of an underlying felony drug offense at some point during his possession of the drugs. (People v. Bland (1995) 10 Cal.4th 991, 999, 1002 (Bland).) In Bland, the California Supreme Court held there was sufficient evidence to impose an armed enhancement under Penal Code section 12022, subdivision (a)(2) when a defendant kept drugs and a gun together, but was absent when the police seized them from his house. It found “arming” was the focus of the sentencing enhancement—being “armed” meant a having a weapon available for use, either offensively or defensively. (Bland, at pp. 997-998.) The court explained the enhancement implicitly required “both that the ‘arming’ take place during the underlying crime and that it have some ‘facilitative nexus’ to that offense.” (Id. at p. 1002.)
The fact that Bland discusses the elements of Penal Code section 12022, subdivision (a) given in CALJIC No. 17.15, whereas this case discusses elements of Penal Code section 12022, subdivision (c) given in CALJIC No. 17.16.1 is a distinction without a difference. The term “armed” has been interpreted identically under both subdivision (a) and subdivision (c) of Penal Code section 12022. (People v. Delgadillo (2005) 132 Cal.App.4th 1570, 1574 (Delgadillo).) The issue is: whether an instruction must inform the jury that they must find a facilitative nexus before an increased penalty may be imposed upon a defendant who was armed in the commission of a felony.
Bland held that juries may make reasonable inferences if the prosecution proves a firearm is found in close proximity to illegal drugs in a place frequented by defendant, including: (1) that the defendant knew of the firearm’s presence; (2) that its presence together with the drugs was not accidental or coincidental; and (3) that, at some point during the period of illegal drug possession, the defendant had the firearm close at hand and thus available for immediate use to aid in the drug offense. These reasonable inferences, if not refuted by defense evidence, are sufficient to determine a defendant was “‘armed with a firearm in the commission’” of a felony within the meaning of Penal Code section 12022. (Bland, supra, 10 Cal.4th at pp. 995, 1002-1003.)
In other words, the drugs and the firearm must have a temporal and spatial relationship to each other. For example, when there is evidence that a firearm is kept in close proximity to illegal drugs, the firearm’s presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for “ready access” to further the drug offense. This satisfies the “facilitative nexus” requirement. (Bland, supra, 10 Cal.4th at p. 1002.)
While the term “facilitative nexus” is not used in CALJIC No. 17.16.1, under the rubric of Bland we find the instruction correctly delineates the elements of the Penal Code section 12022, subdivision (c) armed enhancement.
CALJIC No. 17.16.1 informs the jury that the prosecution alleged defendants were personally armed with a firearm in the commission of manufacturing methamphetamine. The phrase “in the commission” comports with Bland’s requirement that the jury must find defendants had a firearm to further their purpose of manufacturing methamphetamine. Oftentimes, drug “cookers” keep firearms near their drug cache in order to prevent nefarious individuals from stealing their drugs, or to ward off the police. (Bland, supra, 10 Cal.4th at pp. 1002, 1006.) Requiring the jury to find defendants were personally armed in the commission of manufacturing methamphetamine requires that they find a “facilitative nexus,” that is, a connection to the drugs with firearms.
CALJIC No. 17.16.1 instructs the jury that they must find drugs and firearms were within a same temporal and spatial relationship to each other. The “contemporaneous” component is contained within the statement, “If you find a defendant guilty of the crime[s] thus charged, you must then determine whether the defendant was personally armed with a firearm at the time of the commission . . . of the crime[s].” (Italics added.) The spatial aspect is included within the sentence, “The term ‘armed with a firearm’ means knowingly to carry a firearm [or have it available] for offensive or defensive use.” (Italics added.) In other words, if the jury finds that defendant had a firearm available at the time he manufactured methamphetamine, he is subject to an enhanced penalty for being armed in the commission of the crime.
As we find CALJIC No. 17.16.1 correctly recites the elements for a Penal Code section 12022, subdivision (c) arming enhancement, we turn to defendants’ claim that there was insufficient evidence of a “facilitative nexus” between the firearm and the underlying drug offense.
G. There Was Sufficient Evidence Defendants Were Personally Armed While Manufacturing Methamphetamine.
The crime of drug possession is a “continuing offense” that occurs over the course of time. Throughout the entire time a defendant asserts dominion and control over illegal drugs, he is criminally liable for possessing the drugs. If at any time during the commission of the felony drug possession the defendant can resort to a firearm to further that offense, the defendant satisfies the statutory language of being “‘“armed with a firearm in the commission . . . of a felony.” [Citation.]’ [Citation.]” (Delgadillo, supra, 132 Cal.App.4th at p. 1574, citing Bland, supra, 10 Cal.4th at p. 999.) Similarly, the crime of manufacturing methamphetamine is a continuing crime which extends through time and is not limited to a discrete event. (Delgadillo, at p. 1575.)
Defendants’ contention that there was insufficient evidence that they were personally armed while manufacturing methamphetamine is flawed.
When the police knocked on the door of defendant’s trailer to execute a search warrant, Kristina was walking out the door to pick up R. at the mall. Inside the trailer, a few feet away from the door, Edward was sitting on a bench at a table with a computer on it. Underneath the bench’s seat cushion where Edward sat, deputies found two operable firearms: a loaded .357 magnum revolver with six shells in the cylinder and a nine-millimeter semiautomatic handgun with a clip in it. On the table in front of Edward were a single .44-caliber round, marijuana, and a wooden box containing two baggies with .53 grams and .1 gram of methamphetamine, respectively, inside of them. Under the table were red phosphorous stained coffee filters inside plastic bags, representing one stage in the manufacturing process. Just outside the trailer door was a bucket with two containers inside, each one storing biphasic liquid with methamphetamine dissolved in the bottom layer, representing the final stage of methamphetamine production. Edward admitted to Investigator Bender that he completed a “whole cook” approximately four to five weeks previously.
The methamphetamine and the loaded handguns were in close proximity to each other: the drugs were in a box in front of Edward and the firearms were underneath the seat cushion where he sat. As the loaded firearms were within a close temporal and spatial relationship to each other, it is reasonable to infer that Edward kept the guns close at hand for “ready access” to protect and further the crime of manufacturing methamphetamine. Edward could have easily reached underneath the seat cushion to retrieve one of the two loaded handguns to protect his methamphetamine cache and ward off the deputies serving the search warrant. This was sufficient evidence to satisfy the “facilitative nexus” of the arming enhancement.
H. The Deputy District Attorney Did Not Commit Prosecutorial Misconduct in Cross-Examining Edward.
Edward argues that the prosecutor committed misconduct when he repeatedly asked him if he believed a particular witness or officer lied in his or her testimony. Among the cited examples, Edward complains that the prosecutor should not have asked the following questions: (1) Whether Deputy Krikava lied when he testified he checked the firearms to see if there was ammunition in them, (2) Whether the criminalist lied when she testified she tested an exhibit for the presence of methamphetamine and received a positive result, and (3) Whether Investigator Bender lied when he testified Edward admitted to smoking methamphetamine a few hours before law enforcement arrived at the property.
The trial court sustained defense counsel’s objections to the prosecutor’s “are they lying?” questions. It overruled objections to the “do you disbelieve them?” questions.
Edward contends these lines of questioning were tantamount to forcing him to render inadmissible opinion evidence regarding a witness’s credibility, thus improperly invading the jury’s province to assess witness credibility. He asserts the prosecutor’s error was compounded when he “repeated the same refrain” during his closing argument: “that [Edward] accused the witnesses of lying.” He maintains these errors denied him his right to due process and a fair trial. After closely reviewing the record, we find the prosecutor’s cross-examination did not amount to misconduct.
Recently, the California Supreme Court in People v. Chatman (2006) 38 Cal.4th 344, 377 (Chatman) took up the issue of whether “were they lying?” questions were a form of prosecutorial misconduct. It found that “were they lying?” questions did not invade the jury’s function to determine credibility, as that claim was an empty legal cliché devoid of meaning. Hence, the court rejected the jury invasion issue out of hand. (Id. at pp. 378-380.) Similarly, we reject Edward’s claim that the prosecutor’s cross-examination questions infringed on the jury’s province to weigh credibility.
However, the California Supreme Court went on to hold that “were they lying?” questions which force a defendant to opine, without foundation, that prosecution witnesses were liars, are improper.
The California Supreme Court cited this court’s case of People v. Zambrano (2004) 124 Cal.App.4th 228, 238, with approval. (Chatman, supra, 38 Cal.4th at p. 381.)
Generally, the scope of a defendant’s cross-examination is broad. “Were they lying?” questions should not be rejected out of hand, nor should they be allowed under any and all circumstances. (Chatman, supra, 38 Cal.4th at pp. 382, 384.) Rather, trial courts should exercise their discretion and carefully scrutinize “were they lying?” questions in context.
These questions are permissible if the witness “has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (Chatman, supra, 38 Cal.4th at p. 384.) However, no witness may give testimony based on conjecture or speculation. (Evid. Code, § 702.) If a defendant has no relevant personal knowledge of the events, or does not know of a reason why a witness may be lying or mistaken, such evidence would be irrelevant as it has no tendency in reason to resolve disputed questions. (Evid. Code, § 210; Chatman, at p. 382.)
We now turn to an analysis of each of Edward’s claims to assess whether “were they lying?” or “do you disbelieve them?” questions by the prosecutor were improper. An issue arises as to which standard of review should be applied. Strictly speaking, the court in Chatman, supra, found “were they lying?” questions were not prosecutorial misconduct per se, but rather were an erroneous admission of evidence. However, it conducted an analysis under the rubric of prosecutorial misconduct as the case precedent characterized the issue as misconduct. (Chatman, supra, 38 Cal.4th at pp. 379-380.) Chatman did not resolve the issue of whether appellate courts should employ the Watson test for the erroneous admission of evidence, utilize the test for prosecutorial conduct for violating a federal constitutional due process right, or use the test for prosecutorial misconduct for violating a state constitutional due process right. Based on this record, we conclude that under any standard of review, the prosecutor’s cross-examination was proper.
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
To constitute a violation of the federal Constitution, prosecutorial misconduct must ‘“so infect the trial with unfairness as to make the resulting conviction a denial of due process.”’ (People v. Harris (2005) 37 Cal.4th 310, 341.)
“‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Harris, supra, 37 Cal.4th at p. 341.)
First, the prosecutor asked Edward “[I]s it your testimony . . . that Deputy Krikava, when he said that he checked the firearms for ammunition, is it your testimony that he was lying?” The trial court sustained defense counsel’s “argumentative” objection. The prosecutor then asked whether Lieutenant Peters inquired if there were any firearms and Edward responded, “I said, Yes, there was.” Continuing on, the prosecutor asked “And the rifles were loaded as well?” Edward answered, “I remember testimony to that effect, but I don’t recall if they were or not.” The prosecutor responded with, “You can’t believe what the testimony was?” Again, an objection to the form of the question was sustained. Finally the prosecutor asked, “Why don’t you know if that’s true?” Edward answered, “Because I don’t have any specific memory if they were or not.”
Aside from the fact that the trial court properly sustained defense counsel’s objections to the lying/disbelieve questions, the prosecution’s cross-examination was within the scope of Edward’s direct testimony. Edward’s testimony was that he had introduced R. to firearms when she was seven or eight years old. The implication was that R. was not endangered by her access to loaded firearms, thus rebutting the prosecution’s allegation that Edward permitted R.’s health to be endangered.
The prosecutor was legitimately entitled to ask Edward questions that would assist the jury in determining whether Edward was guilty of felony child endangerment by permitting R. to have access to loaded firearms. “‘When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. [Citation.]’ [Citation.]” (Chatman, supra, 38 Cal.4th at p. 382.) As defendant testified on direct that while R. had access to the firearms, she was not endangered because he had taught her the dangers of firearms, the prosecutor could clarify whether R.’s access to loaded firearms constituted felony child endangerment.
Next, Edward claims the prosecutor improperly cross-examined him after inquiring several times whether Edward disbelieved the criminalist’s testimony that she tested People’s Exhibit 61, Item 204G and found it to be methamphetamine. During his direct examination, Edward testified that he told Lieutenant Peters the box on the table in front of him contained “personal stash.” Defense counsel asked, “Whose stash was it?” Edward replied, “I would imagine it was mine because I told him it was personal stash.” In his cross-examination, the prosecutor asked, “So do you disbelieve [the criminalist] when she testified that she tested the substance in 204M from People’s No. 61?” Edward responded, “Do I disagree? Yes, I do disagree. [¶] . . . [¶] Because of my personal knowledge and the knowledge I have obtained in the last 17 years of doing criminal defense work. I’ve had to educate myself so that I can deal with people who are usually going to be prosecutorial witnesses. And the reason I doubt it is because the one that you showed me was not methamphetamine. . . .” (Italics added.)
As the highlighted language indicates, Edward clearly stated he had personal knowledge, as well as specialized training and education, which allowed him to testify that he disbelieved the criminalist. The prosecutor’s “Do you disbelieve [the criminalist]?” question is permissible precisely because Edward asserted that he had personal knowledge that the baggies did not contain methamphetamine. On the surface, Edward’s assertion that the baggies did not contain methamphetamine seemed inconsistent with his prior statement on direct that the items in the box were “his personal stash.” The prosecutor was entitled to explore the ambiguity as this evidence had a tendency in reason to resolve the disputed issues at trial: Did Edward manufacture or possess methamphetamine?
Finally, Edward contends the prosecutor improperly asked whether he disbelieved Investigator Bender’s testimony that Edward admitted smoking methamphetamine a few hours before law enforcement arrived at the property. Edward replied, “I was there. I know it was said.” (Italics added.) Again, Edward verifies that he had personal knowledge of his conversation with Bender and denied making any admissions as to smoking methamphetamine. A witness may testify based on his personal knowledge of the events. “A party who testifies to a set of facts contrary to the testimony of others may be asked to clarify what his position is and give, if he is able, a reason for the jury to accept his testimony as more reliable.” (Chatman, supra, 38 Cal.4th at p. 382.)
We conclude it was permissible for the prosecutor to clarify defendant’s own position and to explore whether he knew of facts that would show a witness’s testimony might be inaccurate or mistaken, in order to elicit testimony that would properly assist the trier of fact in ascertaining whom to believe. (Chatman, supra, 38 Cal.4th at p. 383.)
I. The Trial Court Did Not Abuse Its Discretion in Denying Kristina’s Marsden Motion.
On the 14th day of trial, Kristina complained that her attorney, Mr. Swanson, did not consult her regarding the defense strategy he was going to employ. She faulted defense counsel for not asking the witnesses any of the questions she wanted to have posed to them. She protested his failure to inquire about her drug test results that were positive for methamphetamine. She added that counsel refused to take her suggestions on how to try the case, and criticized him for reporting to the court a communication she had with a juror, without first asking her about the content of the conversation.
The trial court asked defense counsel to respond to Kristina’s grievances. He stated that some of the questions she suggested were good and he presented them, but the witnesses denied events regarding other questions she wanted brought out. Without impeachment evidence or facts in the police report to support those questions, counsel refused to continue with those lines of questioning. Moreover, counsel was taking the tactic of potentially conceding certain counts (such as being under the influence of methamphetamine) in an effort to secure acquittals on the more serious offenses. Kristina balked at this stratagem, as she insisted that she was not guilty of any of the charges.
The trial court ruled that defense counsel adopted a proper tactical approach and acted appropriately in deciding whether to pursue certain lines of questioning. It also found that some of those questions Kristina wanted counsel to pose to the witnesses were irrelevant, objectionable or undermined a defense tactic. Consequently, the trial court denied Kristina’s Marsden motion as it found the attorney-client relationship had not deteriorated to the point that it could not continue.
Kristina contends the trial court abused its discretion by denying her Marsden motion without affording her the opportunity to explain her dissatisfaction with counsel or to rebut counsel’s explanation of his performance. She claims the trial court’s repeated admonitions to “be quiet,” with its concomitant threat that it would place her in custody if she did not remain silent, prevented her from making an adequate record of her complaints regarding counsel’s performance.
When a criminal defendant seeks substitution of counsel on the ground of inadequate representation, a trial court must give the defendant an opportunity to explain the reasons for the request and to relate specific instances of the attorney’s inadequate performance. (People v. Mendoza (2000) 24 Cal.4th 130, 156-157.) We review a trial court’s decision to deny a defendant’s Marsden motion under the deferential abuse of discretion standard. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1367.) Here, we find no abuse of discretion, as both defense counsel and the court responded to each of Kristina’s complaints. (People v. Silva (2001) 25 Cal.4th 345, 366-367.)
Contrary to Kristina’s claims, the trial court provided her ample opportunity to vent her grievances regarding counsel’s representation. She described her disagreement with counsel’s stratagem of conceding lesser offenses in order to avoid convictions on more serious offenses. She also protested counsel’s refusal to ask questions without impeachment evidence to support asking the question in good faith. Finally, she criticized defense counsel’s deference to the court in reporting a juror’s communication with her without clearing up the interaction with her first. We disagree with Kristina’s perception that the record demonstrates the trial court frustrated her Marsden motion by threatening her with incarceration to silence her protests.
A defendant is entitled to relief if the record clearly shows that appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. (People v. Barnett (1998) 17 Cal.4th 1044, 1085-1086.) Substitute counsel should be appointed only when the court finds a defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. (People v. Smith (1993) 6 Cal.4th 684, 696.)
The fact that Kristina disagreed with her counsel’s tactics on questioning the witnesses, on reporting a juror’s communication, on conceding the positive methamphetamine drug result, or his refusal to ask objectionable and irrelevant questions does not mean her right to assistance of counsel was infringed. “‘A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.’ [Citation].” (People v. Barnett, supra, 17 Cal.4th at p. 1086.) “‘A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his [or her] attorney do not by themselves constitute an “irreconcilable conflict.” “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.”’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 682 .)
The trial court did not abuse its discretion in denying Kristina’s Marsden motion. Cross-examining witnesses, refusing to question witnesses without supporting evidence, and reporting a juror’s ex parte communication are all within a trial attorney’s ambit to make tactical decisions. He is given free reign to “captain the ship” for the defense. We conclude that Kristina did not demonstrate an irreconcilable conflict with counsel such that it impaired her right to assistance of counsel.
J. The Trial Court Properly Sentenced Edward to the Upper Term on the Manufacturing Count.
The trial court sentenced Edward to the upper term of seven years for manufacturing methamphetamine. It based its sentence upon a finding of two aggravating factors: (1) Edward, a criminal defense attorney, was manufacturing methamphetamine while simultaneously engaged in the practice of law, and represented clients who were charged with the same offense which he himself was committing, and (2) Edward did not express any remorse for his conduct.
Edward argues that the trial court erred when it sentenced him to the upper term in that it violated his right to have a jury find the aggravating factors beyond a reasonable doubt. We disagree.
The Sixth Amendment compels any fact, which exposes a defendant to a greater potential sentence, be found by a jury—not a judge—and established beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval) citing, Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 863-864, 166 L.Ed.2d 856] (Cunningham).) Under Cunningham, the midterm was the “statutory maximum” that a judge may impose based on the facts found in the jury’s verdict alone, without a judge finding any additional aggravating facts. (Cunningham, supra, 127 S.Ct. at pp. 870-871.)
However, a trial judge is not limited to the midterm and thus may impose the upper term in two instances: (1) if a defendant admits a fact, or (2) a defendant has suffered a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.) In this instance, the trial court could properly impose upon Edward the upper term for count 1.
The trial court found two aggravating factors for imposing the upper term on the manufacturing methamphetamine offense: Edward was not remorseful and he practiced law by defending clients also charged with the same offenses he committed. It is clear that Edward’s lack of remorse was not found by a jury beyond a reasonable doubt; thus, it is inappropriate to impose the upper term based on this finding. However, the trial court’s other finding in aggravation—that Edward was a practicing criminal defense attorney handling client matters involving similar charges—is a proper sentencing choice under Cunningham for which the upper term may be imposed.
The first fact that could properly be used was Edward’s admission on the witness stand that he was a practicing criminal defense lawyer who has handled various drug offenses over the course of his career, including drug lab cases. Any fact admitted to by a defendant can be used to impose the upper term. (Sandoval, supra, 41 Cal.4th at p. 836.)
Edward testified as follows:
The second fact was the jury’s verdict in finding Edward guilty of manufacturing methamphetamine beyond a reasonable doubt. The combination of an admitted fact and a fact found by a jury beyond a reasonable doubt were sufficient findings for the trial judge to rely upon in order to impose the upper term for count 1. The finding of even one factor in aggravation is sufficient to justify the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) Consequently, the trial court did not violate Edward’s right to have a jury find the aggravating factors beyond a reasonable doubt.
K. The Trial Court Properly Sentenced Defendants to Separate Terms for Each Offense.
Both Edward and Kristina contend that count 2 (possession of methamphetamine while armed), count 3 (felony child endangerment), and count 5 (disposal of hazardous waste) should have been stayed pursuant to Penal Code section 654 as these convictions arose out of a single indivisible course of conduct, that is, manufacturing methamphetamine. We disagree with defendants and find that they both were properly sentenced to separate terms for each offense.
All further references to Penal Code section 654 will be referred to simply as “section 654.”
Section 654 provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one . . . .” It prohibits multiple punishments for a single criminal act, or indivisible course of criminal conduct, that violates more than one criminal law. (People v. Latimer (1993) 5 Cal.4th 1203, 1208, citing Neal v. State of California (1960) 55 Cal.2d 11, 18.) “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592.)
“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California, supra, 55 Cal.2d at p. 19.) However, if a defendant “entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
A trial court decides whether criminal acts had one or multiple objectives. The question is one of fact, and if the trial court’s conclusion is supported by substantial evidence, it is upheld on appeal. (People v. Brown (2007) 148 Cal.App.4th 911, 915.) Where the trial court does not make an express finding, an implied finding that the crimes were divisible must be upheld if supported by the evidence. (People v. Nelson (1989) 211 Cal.App.3d 634, 638.)
Substantial evidence supported the trial court’s imposition of separate terms for manufacturing methamphetamine, possessing methamphetamine while armed, felony child endangerment, and hazardous waste disposal offenses.
Here, the defendants acted with multiple objectives. As the respondent notes, defendants could have done any one of the following acts: possessed or used methamphetamine, or manufactured methamphetamine, or kept loaded firearms, or disposed of hazardous waste on their property. But instead of committing one crime, defendants did all of these. Moreover, they did all of these acts in the same environment where R. resided. Although defendants’ use of toxic precursor chemicals and the process of manufacturing methamphetamine were inherent dangers to the child, defendants also committed other separate acts which also endangered R.: these include exposing her to hazardous waste, loaded firearms, and human excrement.
The accretion of multiple, overlapping dangerous acts imperiled the safety of others, including their daughter. Each act (being armed, manufacturing and possessing narcotics, dumping toxic chemicals) was a separate objective, independent of each other.
We conclude that the trial court properly imposed separate sentences on counts 2, 3, and 5.
L. Issues Regarding the Recovery of Expenses Incurred by Government Agencies in Removing Controlled Substances.
At sentencing, the trial court ordered Kristina to pay restitution in the amount of $1,194 to the Riverside County Fire Department and $4,866.22 to the Riverside County Environmental Health Department for environmental cleanup costs. Kristina raises several arguments which she contends mandates the restitution order be stricken. We address each in seriatim.
1. Statutory Procedure.
Kristina first alleges that the prosecution failed to follow the correct procedure to recoup $6,060.22 for the environmental clean up costs expended in removing hazardous wastes generated by the methamphetamine lab.
State agencies may recover the costs of remedial actions to clean up hazardous waste generated from the manufacture of controlled substances in one of two ways: either by filing a separate civil action (§ 11470.1), or by filing a petition in the pending criminal action. (§ 11470.2.) Sections 11470.1 and 11470.2 are the exclusive remedy for reimbursement of the expenses that were recoverable by the county. (People v. Martinez (2005) 36 Cal.4th 384, 394.)
Focusing on the criminal procedure described in section 11470.2, a prosecutor must file a petition alleging that a defendant manufactured a controlled substance and that expenses were occurred in seizing, eradicating, or destroying the controlled substances and its precursors. The petition must state the amount the government is seeking as reimbursement for remedial expenses. The prosecutor must then give service of process to the defendant that a petition was filed. (§ 11470.2, subd. (b).)
The defendant may either admit or deny the petition for the recovery of expenses. If the defendant admits the allegations of the petition, the court shall enter a judgment in the prosecution’s favor for the amount of expenses incurred. If the defendant denies the allegations, the petition shall be heard in the underlying criminal case promptly following the defendant’s conviction on the underlying offense. The hearing can be before the same jury or a new jury, in the discretion of the court, unless all parties consent to waive a jury hearing. (§ 11470.2, subd. (c).) At the hearing, the prosecution has the burden of proof to prove the amount of recoverable expenses by a preponderance of the evidence. (§ 11470.2, subd. (d).)
Kristina asserts that the prosecution’s failure to file a petition and “prove up” the amount sought for clean up expenses bars it from recovering any amount, hence, the restitution order must be stricken. The People respond that Kristina has waived the matter on appeal as she did not object in the trial court below.
2. Waiver.
“Claims of error relating to sentences ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ are waived on appeal if not first raised in the trial court. [Citation.] For example, the waiver doctrine precludes appellate review in cases where a defendant fails to object to the reasonableness of a probation condition.” (People v. Brach (2002) 95 Cal.App.4th 571, 577 (Brach).) Where the defendant has failed to assert her rights—even after she received notice of the total amount the county sought to recover in the probation report—under section 11470.2 by objecting to the restitution amount, she has waived the matter on appeal. (Brach, at p. 577.)
As Kristina failed to object to the $6,060.22 amount for clean up expenses at the time of sentencing, she has waived the matter on appeal. However, she maintains that the restitution order was an “unauthorized” sentence, which the court did not have jurisdiction to enter, thus she need not have objected below to preserve her contention on appeal. Kristina is incorrect, as her claim is countered by the express provisions of section 11470.2, which explicitly empower a trial court to order a defendant to pay for eradication expenses. (Brach, supra, 95 Cal.App.4th at p. 578.) We find the restitution was an authorized sentence.
3. Ineffective Assistance of Counsel.
Lastly, Kristina contends that her trial counsel rendered ineffective assistance by failing to object to the restitution amount at sentencing as there was no tactical reason for failing to object. If defense counsel had challenged the order, she would have received a more favorable sentence as the court would either not have imposed the restitution, or would have preserved the issue on appeal.
Both the federal and state constitutions entitle a criminal defendant to the effective assistance of counsel. (People v. Kipp (1998) 18 Cal.4th 349, 366.) To prove an ineffective assistance claim, a defendant must show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687, 692 (Strickland).) When evaluating the adequacy of counsel’s performance, a court asks whether counsel’s assistance was reasonable “under prevailing professional norms” and in light of all circumstances existing at “the time of counsel’s conduct.” (Id. at pp. 688-690.)
To prove prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) If the record on appeal fails to shed light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of trial counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation. (People v. Carter (2005) 36 Cal.4th 1114, 1189.) The California Supreme Court has “repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding.” (People v. Michaels (2002) 28 Cal.4th 486, 526.)
It is difficult to discern from this record whether trial counsel lacked a tactical reason for not objecting to the amount of restitution. We are unable to say that there could be no satisfactory explanation for failing to challenge the restitution amount. Therefore, we must affirm the judgment and leave defendant to pursue her claim of error via a petition for writ of habeas corpus.
It is unknown whether there is a reasonable probability that the result would be different. Section 11470.2, subdivision (d) states that a petition for recovery of expenses shall be promptly heard following the defendant’s conviction on the underlying offense. It is unknown whether the recovery amount would have been different if defense counsel had objected to the prosecution’s untimely request made after the trial on the underlying offenses. The result could have: (1) remained the same—a jury found Kristina manufactured methamphetamine and the probation report shows that Riverside County incurred a total expense of $ 6,060.22 to clean up the property, or (2) the restitution amount could have been zero if the trial court ruled it was barred as untimely, or (3) the restitution amount could have been lower if the county erroneously calculated its expenses or could not prove the whole amount requested.
As the record did not affirmatively disclose that defense counsel had no tactical purpose for his act or omission, the judgment for restitution is affirmed and defendant is relegated to habeas corpus proceedings at which evidence outside the record may be taken to determine the basis, if any, for counsel’s conduct or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581-582, accord, People v. Hinds (2003) 108 Cal.App.4th 897, 901.)
M. Cumulative Error.
Kristina asserts that reversal is required due to cumulative errors which deprived her of a fair trial. We do not agree, as the only error concerned the trial court’s sentencing defendants for simple possession of methamphetamine, a lesser-included offense to the charge of possessing methamphetamine while armed. Finding no other potential errors to accrue, we therefore reject Kristina’s argument that cumulative error deprived her of a fair trial or warrants reversal of the verdict in whole or in part. Defendants are entitled to a fair trial, not a perfect one. (People v. Houston (2005) 130 Cal.App.4th 279, 320.)
DISPOSITION
Defendants’ convictions for possession of methamphetamine are reversed. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P. J., RICHLI J.
Next, drain cleaner (also known as lye or sodium hydroxide) and water are mixed together to form a solution which is poured into the biphasic liquid. The lye travels through the upper fuel layer and falls into the bottom acidic layer. The lye converts the acidic layer into a base, “chasing” the methamphetamine up into the flammable layer. Normally, lye reacts with pseudoephedrine, red phosphorus and iodine, causing it to foam and bubble. By using fuel as the upper layer, it keeps the reaction from bubbling out of the container and traps the rising methamphetamine inside of the fuel layer. A heat source (either electric or an open flame) is then applied to evaporate the fuel portion of the mixture, leaving methamphetamine as the end product.
“[DEFENSE:] . . . What is your occupation, sir?
“[EDWARD:] I’m a lawyer. [¶] . . . [¶]
“[DEFENSE:] . . . is your practice divided into civil and criminal or civil and/or criminal or any of those combinations?
“[EDWARD:] Yes, it is. I would have to say mainly the bulk of my practice has been criminal defense, and I have a civil side that I have always been interested in dealing with fraudulent transactions in real property. [¶] . . . [¶]
“[DEFENSE:] Now, you indicated to us that your practice involved the handling of drug cases and specifically drug lab cases; is that correct?
“[EDWARD:] Well, most of my cases have been drug defense and drug lab cases, yes, that’s true.
“[DEFENSE:] Approximately how many cases involving drug labs have you handled?
“[EDWARD:] Drug labs, per se, probably, oh, a couple dozen.”