Lead Opinion
Opinion
In People v. Mijares (1971)
To date, with the exception of one published decision that, in dicta, seemingly accepted the rationale and holding of Cole (see People v. Spry (1997)
Facts and Procedural History
On June 3, 1997, defendant Robert Louis Martin was living with his girlfriend, Janelle Davis, and her 19-year-old son, Guy Davis, in Hemet, California. Sometime in the late afternoon a family altercation commenced at the home during a visit by Janelle’s nephew, Charles Trip, and his wife, Nicole Trip. Defendant returned home with his three young children shortly after Charles and Nicole arrived. According to Janelle, who testified for the
The melee escalated. Guy Davis entered the argument and, according to his mother’s testimony, hit defendant with a pipe, accidentally hitting her as well. Nicole Trip testified Guy was wielding a small “bat” and defendant had picked up a chair and was holding it over his head in a threatening manner. As the visitors and a neighbor, Kenneth Biggs, became involved in the fracas, defendant yelled for everyone to get out of the house. Defendant’s children ran from the house, and most of the adults also exited, including defendant. Ultimately, defendant wound up outside in the alley behind the house, facing a group of adults comprised of family members and neighbors as he screamed and swung a metal pipe around himself in an arc, as one would swing a baseball bat. Defendant also picked up and threw rocks at the group, hitting a neighbor, Naomi Biggs, in the leg. Nicole Trip testified that as she tried to go past defendant to enter the house to call police,
Police officers Randy Jahn and Scott Jernagan arrived on the scene at 7:00 p.m. They found defendant and a neighbor, Kenneth Biggs, in a fighting stance with others standing around. A three-foot length of pipe was recovered from the ground six inches from where defendant was standing. After questioning defendant and the others at the scene for approximately 30 minutes, Officer Jahn handcuffed defendant and took him into custody, and Officer Jernagan transported him to the Hemet police station. At the station Officer Jernagan searched defendant’s pants pockets and discovered a “bindle” containing .12 grams of methamphetamine. When Officer Jahn questioned defendant about the methamphetamine, he responded, “I don’t know how I got it, and it’s not mine. I don’t know how it got there.”
Defendant was charged with two felonies and two misdemeanors: assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)
Defendant was found guilty by a jury of the three remaining charges. In the second bifurcated phase of trial, the court found all the enhancement allegations true. Thereafter, at sentencing, the court expressly declined to exercise discretion under section 1385 to strike any of the prior convictions. Defendant was sentenced to four terms: two concurrent prison terms of 25 years to life, one for each of the felony convictions; one concurrent term of six months in county jail for the misdemeanor battery conviction; and a one-year consecutive prison term for not having remained free of imprisonment or felony convictions for five years.
The Court of Appeal reversed defendant’s conviction of assault with a deadly weapon for insufficiency of evidence and vacated the 25-year-to-life indeterminate term for that offense. It rejected his claim that the trial court erred in refusing to give a defense-requested version of CALJIC No. 12.06 pertaining to the possession of methamphetamine charge (the standard version was given) and affirmed the judgment and sentence in all other respects.
Discussion
The essential elements of unlawful possession of a controlled substance are “dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.” (People v. Camp (1980)
Intent to possess the controlled substance for a minimally prescribed period of time has never been an element of the statutes criminalizing simple possession. Nonetheless, in Mijares, supra, 6 Cal.3d at pages 420-422, we held that, under limited circumstances, facts showing only a “brief,” “transitory” or “momentary” possession could constitute a complete defense to the crime.
In Mijares the principal question presented was whether the act of momentarily handling a narcotic for the sole purpose of disposal constituted unlawful “possession” within the meaning of Health and Safety Code former section 11500. Defendant Mijares was observed by a woman bystander as he leaned inside a parked car and slapped the passenger (his friend) across the face. Moments later he was seen removing an object from the passenger compartment of the car, which he threw into a nearby field. He then drove his friend, who was suffering from a heroin overdose, to a fire station. The friend, who was not breathing, was revived and taken away by ambulance while Mijares waited at the station for the police. The authorities recovered the object tossed into the field and determined it contained heroin and related paraphernalia, whereupon Mijares was arrested for possession of narcotics. At trial Mijares claimed he believed his friend was overdosing and needed medical help. Suspecting the friend might still have narcotics on his person if he had recently taken drugs, Mijares looked inside the friend’s pockets, found the narcotics outfit, and threw it out of the car before driving to the fire station for help. (Mijares, supra, 6 Cal.3d at pp. 417-419.)
We explained in Mijares that “in throwing the heroin out of the car, defendant Mijares maintained momentary possession for the sole purpose of
Our decision in Mijares gave rise to the initial version of CALJIC No. 12.06, entitled Momentary Possession as Not Unlawful.
The Cole court opined that trial courts had a duty to correct CALJIC No. 12.06 either by deleting the “only brief moments” language or by further instructing that the length of time a defendant had the narcotics in his actual or constructive possession was only one factor in the jury’s determination of whether possession was unlawful. (Cole, supra, 202 Cal.App.3d at p. 1446.) The court held: “For guidance on retrial, we suggest the instruction could be tailored as follows: If the defendant physically controlled the substance solely for the purpose of its disposal, such possession would not be unlawful even though he knew its nature as a controlled substance. Length of time of possession is one of the factors which may be considered when deciding whether the defendant physically handled the substance solely for disposal.” (Id. at pp. 1446-1447.)
Accordingly, CALJIC No. 12.06 was revised in the wake of Cole. The instruction was renamed Possession—Not Unlawful, reference to “momentary possession” was deleted, and a paragraph was added pursuant to the suggested language in Cole stating that, “Length of time of possession is one of the factors that may be considered in deciding whether the defendant physically handled the substance solely for abandonment, disposal, or destruction.” (CALJIC No. 12.06 (1989 rev.) (5th ed. 1988).)
The Comment to the 1989 version of CALJIC No. 12.06 advises that the revision is based on Cole’s conclusion that “while People v. Mijares factually only involved a momentary handling, ... the critical issue was not the length of time of the handling but whether the defendant physically handled the substance solely for the purpose of disposal.” (Com. to CALJIC No. 12.06 (1989 rev.) (5th ed. 1988) p. 8.) However, the Use Note to the 1989 version of the instruction (added in 1991) further advises that “[i]n People v. Sullivan[, supra,]
As reported in the Use Note, within one year after Cole was decided the court in Sullivan, supra,
Sullivan contended on appeal that the trial court had erred in refusing his requested instruction, purportedly derived from the holding of Mijares, that “ ‘Limited handling of contraband, such as for the purpose of abandonment, will not support a conviction for possession.’ ” (Sullivan, supra,
The Sullivan court disagreed, reasoning as follows: “The Mijares decision was premised on the fleeting nature of the possession. Cole has read the fleeting nature of the possession out of the Mijares formula and expanded the scope of the defense. RQ We think the Cole court, by abandoning the requirement the possession be ‘fleeting,’ has unreasonably expanded the Mijares rule. Mijares's rule arose from a situation involving a fleeting, de minimis possession and a reflexive act of abandonment. The Supreme Court’s holding was that this de minimis possession and reflexive response was not a criminal possession!)] [T]his rule is one which is an understandable and simple rule. Cole complicates the rule by bringing in inquiries into
More recently, the court in People v. Frazier, supra,
The Frazier court quoted with approval Sullivan’s discussion rejecting the rationale of Cole. (Frazier, supra,
Frazier also placed reliance on People v. Hurtado, supra,
We agree with the decisions in Sullivan, Frazier and Hurtado that reject Cole’s, expansive reading of our opinion in Mijares. As noted, the statutes (past and present) at issue in the cases we have reviewed all make unlawful the possession of enumerated controlled substances “without regard to the [possessor’s] specific intent in possessing the substance.” (Sullivan, supra,
We agree with the Hurtado court that recognition of a “momentary possession” defense serves the salutary purpose and sound public policy of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms. (Hurtado, supra,
We conclude that the defense of transitory possession devised in Mijares applies only to momentary or transitory possession of contraband for the purpose of disposal, and that the trial court did not err in refusing
Returning to the facts of this case, even assuming arguendo the jury fully credited Janelle Davis’s testimony that she found the methamphetamine bindle in her son Guy’s room and handed it over to defendant with a request that he dispose of it, defendant was still not entitled to even the pre-Cole version of the Mijares transitory possession instruction that he received. The Court of Appeal concluded as much as four hours had elapsed between the time Davis first gave the narcotics to defendant (when he first returned to the home at approximately 3:00 p.m., 20 minutes after the Tripps had arrived) and the time of the arrival of the officers on the scene of the altercation at 7:00 p.m. Defendant vigorously contested the Court of Appeal’s conclusion that the time of possession was as long as four hours. We agree that the testimony in the record upon which that conclusion was based is equivocal. We note, however, that at the instruction-settling conference, defense counsel conceded the relevant time of possession was “not a fleeting
Conclusion
The judgment of the Court of Appeal is affirmed.
George, C. J., Werdegar, J., Chin, J., and Brown, J., concurred.
Notes
Janelle Davis testified that she herself had used cocaine and methamphetamine in the past, had on one occasion been stopped by the police on suspicion of being under the influence of methamphetamine, and had lied to them to stay out of trouble.
There was also evidence that defendant himself, at Janelle’s request, had called the police when the argument first erupted.
All further statutory references are to this code unless otherwise indicated.
As explained more fully below, this passage in Sullivan merely acknowledges that there is no specific intent required for the crime of simple possession of controlled substances. Transitory possession coupled with intent to dispose of the contraband can, however, serve to establish the affirmative defense of transitory possession for purposes of disposal.
The Mijares theory has been alternately described as the “temporary possession defense,” the “momentary possession defense,” the “transitory possession defense,” and the “disposal defense.” (People v. Frazier (1998)
We also found support for defendant Mijares’s position in a Prohibition era case, Garland v. State (1933)
The instruction provided that possession of an item is not unlawful where (1) possession is “momentary” and “based on neither ownership nor the right to exercise control over” the item; (2) the item is “possessed in furtherance of its abandonment or destruction”; (3) the item is possessed “for the purpose of terminating the unlawful possession of it by another person or preventing another person from acquiring possession of it”; and (4) “control is not exercised over the [item] for the purpose of preventing its imminent seizure by law enforcement.” (CALJIC No. 12.06 (5th ed. 1988).)
The Sullivan court went on to explain why the facts before it did not show a “fleeting handling of contraband” for the purpose of destroying or abandoning it: “Here, Sullivan’s own version of the facts show he made a conscious decision to exercise control and dominion over the methamphetamine for an extended period of time. He did not take merely momentary possession of the methamphetamine while disposing of it, e.g., his possession was not limited to handling the methamphetamine for the few moments it would take to carry it into the house and flush it down the toilet. Instead, Sullivan, as shown by his version of the facts, elected to remove the methamphetamine from the shed and place it in the front seat of his truck, separate from the chemicals and equipment. Later, when stopped by the deputy, Sullivan did not attempt to turn the methamphetamine over to the police but moved the methamphetamine from the front seat of the truck to his pocket to conceal it from the deputy and to retain possession of it. This evidence did not justify Sullivan’s requested Mijares instruction since the instruction applies only where there is a brief handling of the contraband while disposing of it.” (Sullivan, supra,
We reiterate: although there is no such specific intent element in the crime of simple possession of controlled substances, brief or transitory possession of narcotics with the intent to dispose of the contraband can establish the Mijares defense of transitory possession.
In Spry, the defendant was charged with possession of heroin and asserted he possessed the narcotics for the limited purpose of disposal. The jury was instructed pursuant to the post-Cote version of CALJIC No. 12.06 and the defendant convicted as charged. (Spry, supra, 58 Cal.App.4th at pp. 1348, 1357.) On appeal he contended the standard instruction failed to define the allocation and magnitude of the burden of proving the defense. (Id. at p. 1348.) The Court of Appeal agreed,' holding that the defendant bears the burden of establishing the Mijares affirmative defense of possession for the purpose of disposal by a preponderance of the evidence. (Id. at p. 1369.)
Interestingly, the Spry court nonetheless found the instructional error prejudicial and reversed. (Spry, supra, 58 Cal.App.4th at pp. 1371-1372.) Accordingly, the court did not have occasion to directly consider the simmering controversy between Cole, on the one hand, and Sullivan and Hurtado on the other (Frazier was decided after Spry) on the nature and scope of the elements of the Mijares momentary possession defense. In dicta, however, the Spry court did briefly discuss Cole and Sullivan, and seemingly accepted Cole’s expansive treatment of the defense. (Spry, supra, 58 Cal.App.4th at pp. 1363, 1367.) But the discussion is confusing, for although the court acknowledged that Spry’s jury was instructed with the post-Co/e version of CALJIC Ño. 12.06 (58 Cal.App.4th at pp. 1363-1364), elsewhere in its opinion the court wrote: “CALJIC No. 12.06 correctly states the elements of the Mijares defense of lawful possession of narcotics: The defendant’s possession must be momentary’, the narcotics must be possessed solely for the purpose of abandonment, disposal, or destruction; the narcotics must be possessed for the purpose of terminating another person’s unlawful possession; and control is not exercised over the narcotics to prevent their imminent seizure by law enforcement. The instruction also contains Cole’s expansive language concerning length of time of possession as another variable factor. [fl] The instruction additionally provides possession of a controlled substance is not unlawful where all four stated conditions ‘are met.’ ” (Spry, at pp. 1369-1370, italics added.) Although Spry is thus good authority for the proposition directly considered therein—the allocation of the burden of proof under the Mijares affirmative defense instruction—a close reading of the opinion only adds to the confusion concerning whether momentary possession is an element of the Mijares defense.
In oral argument before this court, appellate counsel likewise acknowledged that as far as Mijares’s brief or momentary time requirement, the facts of this case do not meet the Mijares test. Appellate counsel urged that we instead follow Cole and conclude “it all boils down to an issue of intent.”
Concurrence Opinion
I concur in the result.
In People v. Mijares (1971)