P. v. Clair

Filed 8/29/06 P. v. Clair CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

James E. Clair appeals from a judgment entered following a jury trial in which he was convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and the court’s finding that he suffered a prior serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for five years consisting of the middle term of two years doubled pursuant to the Three Strikes law and an additional year for one prior prison term pursuant to Penal Code section 667.5, subdivision (b). He contends the trial court committed instructional error. For reasons explained in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On April 14, 2005 at approximately 4:30 p.m., El Monte Police Officer Albert Martinez responded to a call at a gas station located at Peck and Garvey streets in El Monte. Behind the gas station, he saw two men and one woman sitting on the ground. It looked like the three individuals “were hanging out, not actually in any conversation or anything. Just kind of sitting there.” Appellant was one of the three individuals and he was seated in the middle. The woman was smoking a cigarette and the third individual, who was holding what appeared to be a methamphetamine pipe, stood up and started walking towards the officers as soon as he saw them. Officer Martinez’s partner contacted this third individual, and Officer Martinez walked over to appellant. Appellant’s right hand was closed in a fist, and Officer Martinez told him to stand up and drop whatever he had in his hand. Appellant hesitated a bit and was “fidgeting with something in his right hand.” As he started to stand up, his hand opened and Officer Martinez could see something yellow in it. It appeared that appellant was trying to conceal whatever was in his hand and the officer continued to tell him, “hey, just drop it.” Appellant finally dropped a yellow plastic wrapper on the ground. When Officer Martinez walked up to appellant, the officer noticed there were other small yellow wrappers in front of the female. Officer Martinez picked up the item that appellant had dropped and upon opening it could see that it was a crystal-like substance resembling methamphetamine. There was enough of the substance to put in a pipe and smoke. It was later determined to be .06 of a gram of powder containing methamphetamine. Officer Martinez recovered the other wrappers as well; one was just plastic and had nothing in it and the other wrapper had a minimal amount of a crystal-like residue, which was not sufficient to test. Officer Martinez’s partner, Officer Yanez, recovered the pipe from appellant’s male companion and booked it into evidence. It was Officer Martinez’s opinion that the pipe was the type used to smoke methamphetamine. It did not appear that any of the individuals were under the influence of a controlled substance.

Appellant testified that approximately three days before this incident, he had been released from prison on parole. He had requested that he be assigned to a residential drug program upon his release, but it did not happen. He received a voucher for a motel room for a couple of weeks; but when he arrived at the motel, he was late and was told he could not have the room. He walked around and sat on a bus bench most of the night. When he returned to the motel the next night, he was told that because he had not been on time the previous night he had forfeited the entire voucher. He then ran across a friend of his, Larry Stagmire, at the bus terminal downtown. While walking with Stagmire, appellant met up with a young woman; and after explaining his situation to her, she offered a motel room so he could shower. The three walked down the street, and the woman said she wanted “to stop and smoke some speed behind the gas station.” Appellant does not use methamphetamine. He had tried it once and it was extremely unpleasant. Stagmire and the woman were smoking speed and getting high. The yellow wrappers found in front of the woman were from the substance she and Stagmire had been smoking. Appellant had not been smoking and was not under the influence of any kind of drug. Appellant picked up the yellow wrapper and tried to dump it out because he had just been released from prison and was on parole. Just being “there” would have put him in “jail.” Before picking up the wrapper that contained methamphetamine, he had not touched it in any way and did not want anything to do with it. When he saw the officer pull up, he picked up the bag and tried to “dump it” because he did not want the police to find it. He was trying to “destroy it.” Even though he knew he could get in serious trouble by associating with people smoking methamphetamine, he remained with them because the woman said she was going to get a room and that he could take a shower and sleep there. Appellant had been awake for two days.

DISCUSSION

Appellant contends the trial court erred by instructing the jury over appellant’s objection pursuant to the provisions of CALJIC No. 12.06.[1] Appellant contends because of the unique circumstances of his case, subsection (4) of CALJIC No. 12.06 was inapplicable and the court should have given the instruction without that subsection or should have permitted defense counsel to craft a more accurate pinpoint instruction.

The jury was instructed, “A person is not guilty of a crime when his or her possession of a controlled substance is shown to be lawful. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that his or her possession of the controlled substance is lawful.

The possession of a controlled substance is lawful where all of the following conditions are met:

1. The possession is momentary and is not based on either ownership or the right to exercise control over the methamphetamine;

2. The methamphetamine is possessed solely for the purpose of abandonment, disposal, or destruction;

3. The methamphetamine 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 methamphetamine for the purpose of preventing its imminent seizure by law enforcement.”

“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.’ [Citations.] It has been observed that the statute proscribing the unlawful possession of controlled substances [citations] ‘makes possession illegal without regard to the specific intent in possessing the substance.’ [Citation.] Although the possessor’s knowledge of the presence of the controlled substance and its nature as a restricted dangerous drug must be shown, no further showing of a subjective mental state is required. [Citation.]” (People v. Martin, supra, 25 Cal.4th at pp. 1184-1185.)

“In [People v. Mijares (1971) 6 Cal.3d 415] 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. [Citation.]

[Our Supreme Court] explained in Mijares that ‘in throwing the heroin out of the car, defendant Mijares maintained momentary possession for the sole purpose of putting an end to the unlawful possession of [his friend]. [Citation.] [The Court] concluded that the physical control inherent ‘during the brief moment involved in abandoning the narcotic’ was not possession for purposes of the statute. [Citation.] [The Court] reasoned that if such transitory control were to constitute possession, ‘manifest injustice to admittedly innocent individuals’ could result. [Citation.]” (People v. Martin, supra, 25 Cal.4th at p. 1186.)

“[R]ecognition 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. [Citation.]” (People v. Martin, supra, 25 Cal.4th 1180, 1191.)

In the present case, appellant testified that upon seeing the police officers approach, he picked up the package of methamphetamine and tried to “dump it” because he did not want the police to find it. Appellant’s actions in attempting to destroy the contraband when confronted by the police did not fall within the defense of “momentary possession” recognized in Mijares. Mijares emphasized that its “decision in no way insulates from prosecution under the narcotics laws those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession. [Citations.] [Mijares stated it was leaving] intact the rule that from such conduct ‘it could be inferred that defendant at one time exercised physical dominion’ over the narcotic. [Citation.] [Mijares noted further] certain actions relating to abandonment of narcotics may also fall within the proscription of section 135 of the Penal Code, forbidding the destruction or concealment of evidence.” (People v. Mijares, supra, 6 Cal.3d at p. 422.) According to appellant’s testimony, he exercised physical dominion over the contraband. This momentary possession, however, was not for the sole purpose of putting an end to the unlawful possession of his companions but rather to destroy the evidence so the police would not discover it. These facts do not constitute a defense to the crime and do not warrant a pinpoint instruction or a modified instruction on the defense of momentary possession. (Ibid.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J. MANELLA, J.

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[1] This defense “has been alternately described as the ‘temporary possession defense,’ the ‘momentary possession defense,’ the ‘transitory possession defense,’ and the ‘disposal defense.’ [Citations.]” (People v. Martin (2001) 25 Cal.4th 1180, 1185, fn. 5.)