Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. (Super. Ct. No. 07CF0639).
The opinion of the court was delivered by: Bedsworth, J.
CERTIFIED FOR PUBLICATION
We deal here with a previously unreported variation on the theme of People v. Mijares (1971) 6 Cal.3d 415, that, under certain limited circumstances, momentary possession of contraband is not legally culpable. While we are confronted with the always disconcerting pageant of both parties relying on the same language from the same cases to arrive at conclusions that are polar opposites, we conclude the Attorney General's reading of the cases more closely comports with California law. We therefore hold a defendant who disposes of contraband not out of scruple, but because of the threat of bodily harm or police apprehension cannot invoke Mijares.
Since the issue in this case is so narrowly defined, the facts necessary to its determination can be quickly related. Appellant Efrain Negrete Paz and Jose Salazar got into an argument involving territorial claims of Paz's gang. Essentially, Salazar testified Paz was mouthy and belligerent so he punched him and a fight ensued.
During the battle, Paz threatened that his "homies" were going to come and help him "kick [Salazar's] ass." Salazar yelled to his girlfriend to call 911, then clamped a choke hold on Paz, who responded by throwing a round metal item under a nearby car. When Salazar let go, Paz left the scene.
Police arrived, and Salazar pointed out the object under the car. Retrieved by police, it turned out to be an Altoids tin containing two empty baggies and one with 13.5 grams of methamphetamine. A search warrant was obtained and executed at appellant's home, where a baggie containing 1.12 grams of methamphetamine was found.
Appellant's explanation for all this was that in fact he had been negotiating to buy methamphetamine from Salazar, then changed his mind and stole it from him instead, only to have Salazar catch him and wrestle with him to retrieve the drugs. When Salazar put a choke hold on him, Paz threw the tin down on the street, and when Salazar let go of him, he fled because he was on parole. He said the methamphetamine found in his home belonged to his brother Eddie.
Appellant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378) (the Altoids tin) simple possession of methamphetamine (Health & Saf. Code, § 11377 (the baggie at his home), and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). He was convicted of all three offenses, two prior prison term allegations were found to be true, and he was sentenced to imprisonment for a term of five years, eight months.
Paz's appeal is based upon his contention the jury was inadequately instructed. He feels the trial court should have instructed the jury, sua sponte, on the legal principle that "transitory possession" is insufficient to establish legally culpable possession of a controlled substance. He contends that since he had the Altoids tin only moments before it was thrown under the car, the jury should have been told that such transitory possession would not constitute a criminal offense. We are convinced this is not the law.
In People v. Mijares, supra, 6 Cal.3d 415, the California Supreme Court "held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance." (People v. Martin (2001) 25 Cal.4th 1180, 1182.) A long line of cases has since recognized this defense (but see conc. opn. of Kennard, J., People v. Martin, supra, 25 Cal.4th at p. 1193 [questioning whether the issue should be treated as a defense or merely a failure to prove up the elements of the charge]). Not surprisingly, most of them have dealt with situations very much like the one in Mijares, in which the charged possessor had taken the drugs from a friend merely to throw them out the window of a car, thus disposing of them. In situations such as that, there seems to be a consensus that the conduct is not legally culpable.
Paz attempts to apply the Mijares rule to his case. He contends that he had only momentary possession of the methamphetamine in question and not only intended to dispose of it, but did so - he threw it under a car. ...