In re Adam F.

Filed 4/17/07 In re Adam F. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 an order of the Superior Court of Los Angeles County, Steff Padilla, Commissioner. Affirmed.

Jonathan B. Steiner and Ann Krausz, under appointments by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

Adam F. appeals from an order of wardship pursuant to Welfare and Institutions Code section 602 upon a finding that he was a minor in possession of a firearm in violation of Penal Code section 12101, subdivision (a)(1). He was placed home on probation and contends the juvenile court erroneously rejected his affirmative defense of transitory possession. For reasons stated in the opinion, we affirm the order.

FACTUAL AND PROCEDURAL SUMMARY

On February 1, 2006, appellants high school classmate brought a handgun to school, stating he feared for his life. Appellant joined his classmate and several others in the schools restroom and retrieved the gun from a vent. Appellant placed the gun in a backpack and then gave the backpack to another student, who then left the restroom.

In defense, appellant testified he retrieved the gun, put it in a backpack, and gave the backpack to Kyle. Appellant gave the backpack to Kyle, believing Kyle would give it to his father. Appellant didnt know, but . . . thought he was going to give it to his dad. Kyles father is a police officer. Appellant possessed the gun for approximately three seconds. He did not go to the principals office or call for security or a teacher when he learned there was a gun on school grounds. When appellant gave Kyle the backpack containing the gun, there were at least a couple more hours until the end of the school day.

In finding appellant violated Penal Code section 12101, subdivision (a)(1), the court observed appellant had not disposed of the gun properly, that he had given the gun to another student who kept the gun on campus. The court stated, however, that it believed appellant was trying to do the right thing.

DISCUSSION

Appellant contends the court erroneously rejected his affirmative defense of transitory possession. He cites People v. Mijares (1971) 6 Cal.3d 415, for the proposition that momentary or transitory possession of an unlawful narcotic or contraband for the sole purpose of disposing it can be a defense. 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 friends 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 ofputting 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, (2001) 25 Cal.4th 1180, 1185-1186.)

[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 at p. 1191.)

In the present case, appellant testified he removed the gun from the vent, put it in a backpack and gave the backpack to his friend Kyle. Appellant testified he believed Kyle would give the gun to his father who was a police officer. Appellant also testified, however, he really did not know what Kyle would do with the gun. As the trial court observed, in giving the gun to another student at the school, appellant did not dispose of the gun or terminate the unlawful possession of the gun by another person. Rather, appellant gave the gun to another student knowing the gun would be on campus for a couple of hours until the end of school. Appellant did not establish the defense of transitory possession. As the juvenile court noted, there was still a gun in a backpack on a school campus; the danger was still there.

DISPOSITION

The order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J. MANELLA, J.

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