P. v. Panlaqui

Filed 5/12/06  P. v. Panlaqui C4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Jan I. Goldsmith, Judge.  Affirmed and remanded with instructions.

            A jury convicted Junar Panlaqui of furnishing a controlled substance (Health & Saf. Code, §  11379, subd. (a)) and possession of a controlled substance (Health & Saf. Code, §  11377, subd. (a)).  At sentencing the court suspended the imposition of sentence for the conviction for furnishing a controlled substance and granted Panlaqui probation.  The court stayed the sentence for the possession conviction (count 3) under Penal Code section 654.

            Panlaqui appeals contending the court erred in failing, sua sponte, to give an instruction on possession of a controlled substance for purposes of disposal consistent with the defense approved in People v. Mijares (1971) 6 Cal.3d  415 (Mijares).  He also contends the stayed sentence on count 3 must be clarified because the trial court purported to stay a lower term sentence of two years for that count.  The parties agree the lower term for that offense is 16 months.  The middle term for count 3 would be two years.  It appears from the record that both the probation officer and the trial court mistakenly believed the lower term was two years.  We will affirm the convictions and remand the case to the trial court to clarify the sentence for count 3.

STATEMENT OF FACTS

            On the morning of October 18, 2004, Panlaqui and a friend, Mr. Magbuana, were outside the Sycuan Tribal Gaming Casino.  Since Magbuana had been excluded from the casino, security officers were observing the two men on a surveillance camera.  A video tape of the events that morning was made and played for the jury.  The tape showed contact between Panlaqui and Magbuana in which Panlaqui handed Magbuana a small white object and Magbuana handed him money.

            The security officer contacted the two men outside the casino regarding the officer's observations.  Panlaqui was asked if he had any more meth (methamphetamine), to which he replied, " I never sell drugs."   Upon further questioning Panlaqui said he did not sell drugs, he " use[d] them."   When asked how much he was given for the " dope" Panlaqui said, " He gave me $8, he had 8 bucks."   When the officer told Panlaqui he had viewed the events on the video Panlaqui said, " I'm not denying it.  I'm not denying it at all."    A search of Magbuana produced a small package of methamphetamine in the cuff of his pants.

            Panlaqui was also interviewed by William McFarland, assistant shift supervisor for Sycuan security.  Panlaqui told McFarland that he had been approached by Magbuana who asked if Panlaqui wanted to buy drugs.  Panlaqui purchased a package from Magbuana for $10.  Panlaqui said he immediately changed his mind and returned the drugs.  Since Magbuana needed money he only gave Panlaqui $8 back.

Defense

            Panlaqui testified in defense.  He offered a third version of the events in this case.  He testified he had loaned Magbuana $10 while inside the casino.  Later, outside the casino, he asked for his money back.  Magbuana handed him a white paper which Panlaqui believed contained methamphetamine.  Panlaqui attempted to hand the paper back, but was asked by his companion to move to the bench.  Once at the bench Panlaqui handed the paper back and asked for his money.  Magbuana gave him $8.

            On cross-examination Panlaqui acknowledged he handed the paper back in a " nimble" fashion because he did not want to be caught with drugs.

DISCUSSION

            Panlaqui argues, for the first time on appeal, that the trial court should have instructed the jury, in accordance with Mijares, supra, 6 Cal.3d  415, that possession of drugs for purposes of disposal is not a crime.  He contends the failure of the court to give such instruction, even without request, constitutes prejudicial error.  We do not believe the trial court in this case had a sua sponte duty to instruct on the Mijares doctrine.

            The duty of trial courts to instruct on the applicable principles of law in a criminal case is well established.  In some instances the court may be required to instruct on principles necessary for the jury's understanding of the case, even though no request is made by the defendant for such instruction.  (People v. St. Martin (1970) 1 Cal.3d  524, 531.)  The real question presented here, however, is whether the rule established in Mijares is applicable to the facts in this case.  In conducting our analysis we do not weigh the credibility of the evidence offered by the defendant.  We merely look to see if there is substantial evidence in the record which would justify the giving of an instruction on the principle at issue.

            In Mijares, supra, 6 Cal.3d  415, the court established that it would not be just to convict a person of unlawful possession of drugs when that possession is fleeting and merely for purposes of immediate disposal of the illegal substance.  Panlaqui seeks to dramatically expand the rule of Mijares in a fashion contrary to the California Supreme Court's recent limitation of the Mijares doctrine.  We decline to extend the Mijares doctrine to the facts of this case, even if we were not compelled to do otherwise by governing precedent.

            After Mijares, supra, 6 Cal.3d  415was decided the courts of appeal struggled with defining the circumstances in which the doctrine should be applied.  People v. Cole (1988) 202 Cal.App.3d  1439 (Cole) held that possession of drugs solely for disposal was not a crime and that the possession need not be fleeting.  This court rejected the analysis of the court in Cole in People v. Sullivan (1989) 215 Cal.App.3d  1446, 1453 (Sullivan).  In Sullivan we held that such possession must be for no longer than the instant it takes to dispose of the illegal item.  Later opinions of the appellate courts followed our analysis in Sullivan and held possession of illegal items for anything other than the very brief time necessary for disposal remained unlawful and that an instruction based on Mijares was not necessary. (People v. Brown (2000) 82 Cal.App.4th  736, 738-740; People v. Frazier (1998) 63 Cal.App.4th  1307, 1310.)

            The Supreme Court returned to the Mijares doctrine in People v. Martin (2001) 25 Cal.4th  1180 (Martin).  There the court explained the Mijares doctrine does not serve to negate the element of possession of narcotics.  " Instead, it offers a judicially created exception of lawful possession under certain specific circumstances as a matter of public policy, similar to the defenses of entrapment and necessity."   (Martin, supra, 25 Cal.4th  at p. 1191.)

            The court in Martin also disapproved Cole, supra, 202 Cal.App.3d  1439 and agreed with this court's analysis in Sullivan, supra, 215 Cal.App.3d  at page 1453.  Thus it is clear the Supreme Court's recent analysis of the Mijares doctrine has retained the defense in the narrow circumstances for which it was originally crafted.

            Even if we view the testimony of Panlaqui without reference to any contrary evidence, his conduct does not come within the Mijares exception to unlawful possession.  He did not testify he possessed the drugs for purposes of disposal.  Rather his version of the facts shows a transaction between him and Magbuana.  His version of the transaction shows he first received the drugs when his companion gave the package to him in lieu of paying the $10 owed.  The evidence does not show Panlaqui then disposed of the drugs.  Rather he gave it back to his companion for whatever illegal use the companion desired.  That is not the same circumstance as described in Mijares, supra, 6 Cal.3d 415, where the suspect threw the drugs out the window to allegedly dispose of it.

            We think this case is more akin to the circumstances described in People v. Brown, supra, 82 Cal.App.4th  736.  In that case the defendant was a prison inmate who said he found a weapon, described as a " shank" on the floor.  The defendant said he was taking the weapon to an outside toilet in order to dispose of it.  The court rejected his Mijares claim because he could have simply left the item and reported it to a guard.  Panlaqui claimed he knew the " paper" presented by Magbuana contained methamphetamine before he accepted it, that security was watching and he did not want to get caught with drugs.  Handing the drugs back to his friend does not appear to be the kind of disposal contemplated by the Mijares defense.

            No case cited by Panlaqui involves the Mijares defense to the crime of furnishing a controlled substance to another.  Where one does not turn the drugs over to police, but instead gives them to another addict, it is difficult to perceive how such scenario might fit into the court's restatement of the defense in Martin, supra, 25 Cal.4th  1180.

            Perhaps recognizing the difficulty of forcing these facts into the Mijares defense, Panlaqui argues the defense really is a challenge to the mens rea for the crime.  We think the short answer to the novel contention in this case is found in the language we have quoted from the Martin opinion.  (Martin, supra, 25 Cal.4th at p. 1191.)  The court has clearly recast the Mijares defense into a limited, public policy defense, similar to entrapment and necessity.  Panlaqui has not identified, nor do we perceive any sound public policy for expanding this defense into the furnishing of illegal substances to others.

            Under the facts of this case we conclude the trial court did not have an obligation to give an unrequested instruction on the Mijares defense and would have been required to reject such instruction had one been offered.

DISPOSITION

            The judgment is affirmed.  The case is remanded to the trial court with directions to clarify the sentence imposed for the stayed offense and to reflect that clarification in the court minutes.

HUFFMAN, Acting P. J.

WE CONCUR:

  McINTYRE, J.

   AARON, J.

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