PEOPLE v. BALLARD (1989)

OPINION

Douglas Ballard was convicted of possessing a controlled substance for sale in violation of Health and Safety Code section 11378.   On appeal, he contends that the trial court erred in refusing to instruct the jury that momentary handling of a controlled substance for purposes of disposal is not illegal possession.   His proposed instruction was based on People v. Mijares (1971) 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115.   The instruction states:  “Momentary handling of a narcotic is insufficient possession for conviction of the crime of possession of a narcotic if the purpose of the momentary handling is for disposal purposes and nothing more.”   The trial court refused to give the instruction on grounds that it was not supported by the facts here.

FACTS

On August 17, 1987, officers responding to a disturbing the peace call found defendant and his wife, Terry, arguing on the street.   Terry had a suitcase with her.   After talking to Terry, an officer took her to a bus stop.   The officers ran a warrant check on defendant, found he was wanted, and arrested him.   Defendant was standing near a blue duffel bag which he said was his bag.   He adamantly requested that the bag accompany him to the police station.   On a booking search, officers discovered over nine grams of amphetamines in two bags in defendant's pocket.   The duffel bag contained defendant's clothing and narcotics paraphernalia, including two bottles of Inositol, a substance used to dilute amphetamines, a scale, several boxes of bags, and a strainer.   An officer experienced in narcotics transactions testified how narcotics sellers use these items in their business.

In his defense, defendant testified that he did not use or sell drugs, and that he had been arguing with Terry over her use of drugs.   He said that he had broken up with her over the issue and that she had gone to Texas in July with their three-year-old son.   He had paid for their return, and they had returned the previous day and checked into a nearby motel.   When he arrived at the motel that afternoon, the son was asleep on the bed and his wife was taking drugs.   A fight began and he grabbed the bags of drugs and put them in his pocket.   Terry took her suitcase, the duffel bag, and the child and left the room.   Defendant then followed her from the motel and the fight continued in the street.   He told the officers to take the duffel bag because he thought that there were drugs in the bag and he did not want his wife to have them.   He told officers he had found the drugs because he did not want Terry arrested and his son sent to a foster home.   On cross-examination, defendant testified that he did not try to destroy the drugs he took from his wife.

Defendant's mother and sister testified that he did not use or sell drugs, but that Terry did.   They also testified that defendant and Terry fought several times over the drug issue.   Defendant's testimony was partially corroborated by a man who had given him a ride to the motel.   This man saw Terry taking drugs, and saw defendant take the bags from her.   He left as the argument began.

POSSESSION OF A CONTROLLED SUBSTANCE

In this case, defendant rejected an instruction on the lesser offense of possession of a controlled substance and instead gambled that the jury would find him innocent of possession for sale.   Nevertheless, since the issue is possession, we will consider the lesser offense before considering the greater.

 Health & Safety Code section 11350 proscribes possession of certain controlled substances.   The elements of possession of a controlled substance are (1) that the accused exercised dominion and control over the substance;  (2) that he had knowledge of its presence;  and (3) that he had knowledge of its narcotic character.  (People v. Williams (1971) 5 Cal.3d 211, 95 Cal.Rptr. 530, 485 P.2d 1146;  People v. Garcia (1970) 4 Cal.App.3d 904, 84 Cal.Rptr. 624;  People v. Martinez (1953) 117 Cal.App.2d 701, 256 P.2d 1028.)

 The element of dominion and control requires that the defendant have the narcotic under his control and that he have the general intent to exercise control over it.  (Pen.Code, § 20;  People v. Batwin (1953) 120 Cal.App.2d 825, 262 P.2d 88;  People v. Martinez, supra, 117 Cal.App.2d 701, 256 P.2d 1028.)   Narcotics found in a person's clothing are within the person's dominion and control.  (People v. MacCagnan (1954) 129 Cal.App.2d 100, 276 P.2d 679.)

 It is well established that possession is not a specific intent crime, and the prosecution does not have to prove a specific intent to commit the crime.  (People v. Winston (1956) 46 Cal.2d 151, 293 P.2d 40;  People v. Sills (1958) 156 Cal.App.2d 618, 320 P.2d 224;  People v. Lapin (1956) 138 Cal.App.2d 251, 291 P.2d 575.)

In People v. Mijares, supra, 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115, our Supreme Court discussed “possession” in an unusual fact situation.   A witness observed defendant lean inside a parked car and slap a passenger across the face.   Defendant then removed an object from the car and threw it into a field.   When retrieved, the object contained narcotics.   Defendant was tried for possession of narcotics.   The court agreed with defendant that the jury should have been instructed that if it believed that he had no contact with the narcotic except to take it from the passenger's pocket for the purpose of disposal it should acquit him, since such handling is insufficient to constitute possession of narcotics.  (Id., at p. 419, 99 Cal.Rptr. 139, 491 P.2d 1115.)   The court reviewed cases in which limited handling did not constitute possession and held that transitory handling prior to abandonment of the drugs is not illegal possession, apparently because a person in the process of disposing of drugs does not intend to exercise dominion and control over them.   As the court points out, literal application of the statute could lead to absurd results, such as conviction of the bystander who picked up the discarded narcotics out of curiosity.   Accordingly, the court refused to read the possession statute to apply to such “guileless circumstances.”  (Id., at p. 422, 99 Cal.Rptr. 139, 491 P.2d 1115.)   The court made it clear, however, that it was not creating a loophole for persons who discard contraband when they are about to be arrested, or persons who destroy or conceal evidence.   In such cases, the prior physical dominion over the narcotic is sufficient for conviction.  (Ibid.)  With regard to instructions, the court found a sua sponte duty to give an instruction on momentary handling prior to abandonment if the facts warranted it.  (Id., at p. 423, 99 Cal.Rptr. 139, 491 P.2d 1115.)

Cases following Mijares applied the momentary possession for purposes of disposal standard.   For example, People v. Rand (1972) 23 Cal.App.3d 579, 100 Cal.Rptr. 473, involved a telephone call by police that caused persons to flee a house carrying narcotics.   When stopped by police, they threw away the narcotics.   The court found Mijares inapplicable because the circumstances showed knowing possession before they left the house, and “a control both longer in time and greater in degree than the momentary and technical possession proved against Mijares.”  (Id., at p. 584, 100 Cal.Rptr. 473.)

In People v. Grantham (1972) 26 Cal.App.3d 661, 103 Cal.Rptr. 262, Mijares was held inapplicable because, even accepting defendant's version of the facts, his possession was not for the purpose of disposal.

Mijares was also held inapplicable in People v. Booker (1978) 77 Cal.App.3d 223, 143 Cal.Rptr. 482.   In that case, defendant was charged with being a felon in possession of a firearm.   He admitted receiving the weapon from his sister, walking four blocks to a pawn shop and pawning it.   The court held that such possession was not momentary since “defendant intentionally exercised dominion and control over the revolver for his own purpose and for a significant period of time.”  (Id., at p. 225, 143 Cal.Rptr. 482.)   Accordingly, the trial court in that case properly refused to give the requested instruction.

Mijares was also distinguished in People v. Hampton (1981) 115 Cal.App.3d 515, 171 Cal.Rptr. 312.   In Hampton, defendant took delivery of an air freight shipment of marijuana, and indicated he knew what was in the footlocker.   He was arrested as soon as he put the footlocker in his car.   Although he argued that momentary contact with a drug does not necessarily constitute possession, citing Mijares, the court rejected the argument because there was no evidence that he took possession of the drugs in order to dispose of them.  (Id., at p. 523, 171 Cal.Rptr. 312.)

Similarly, a Mijares defense was rejected in People v. Sonleitner (1986) 183 Cal.App.3d 364, 228 Cal.Rptr. 96.   Mr. Sonleitner flushed an alleged narcotic down the toilet when police raided a residence.   The court pointed out that Mijares specifically does not apply to persons destroying evidence as officers approach.

As the cases subsequent to Mijares indicate, its holding is not a license to avoid the plain meaning of the possession statute.   A Mijares instruction is required only when defendant's evidence clearly supports his theory that his possession was innocent because it was only a momentary possession for the purpose of disposal.

 In this case, defendant did not testify that he possessed the drugs only for the purpose of disposal, and there is no evidence that he tried to turn them over to the police, or intended to do so.   His possession would presumably have continued if the police had not arrested him on the outstanding warrants.   We therefore agree with the trial court that the evidence did not support the giving of the Mijares instruction in this case.

 Defendant relies, however, on People v. Cole (1988) 202 Cal.App.3d 1439, 249 Cal.Rptr. 601.   In Cole, officers searched defendant's house pursuant to a search warrant.   They found narcotics in a safe and elsewhere.   Defendant's daughter, age 18, had a drug problem and defendant testified that he had seized the narcotics from his daughter and put them in the safe until he decided what to do with them.  (Id., at p. 1442, 249 Cal.Rptr. 601.)   The trial court gave the Mijares instruction that momentary possession for the purpose of abandoning or disposing of the narcotic is not sufficient to support a possession conviction.   On appeal, defendant argued the test to be applied was not the length of time the narcotics were held but the intent with which they were held.  (Id., at p. 1444, 249 Cal.Rptr. 601.)   The appellate court agreed with defendant that Mijares is not limited to possession for brief moments, but rather that any holding solely for the purpose of disposal does not constitute unlawful possession.   The court sent the case back for retrial and suggested alternative wording for the instruction:  “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, 249 Cal.Rptr. 601.)

Defendant contends that the trial court here erred in not giving this instruction sua sponte.   We disagree.   In our view the proposed Cole instruction is judicial legislation that is an unsupportable extension of Mijares.   Under Cole, any defendant arrested for possession of drugs could testify that he intended to dispose of the drugs in the future, and he could argue on appeal that the trial court erred if it failed to give the Cole instruction sua sponte.

We disagree with Cole because it focuses entirely on defendant's intent even though possession is not a specific intent crime.   As noted above, the only intent required is a general intent to exercise dominion and control over the drugs.  (People v. Martinez, supra, 117 Cal.App.2d 701, 256 P.2d 1028.)

 We also believe that Cole disregards the well established statutory elements of possession of narcotics.   A possession conviction is proper if the defendant exercised dominion and control over the drugs, knew they were present, and knew they were drugs.  (People v. Williams, supra, 5 Cal.3d at p. 215, 95 Cal.Rptr. 530, 485 P.2d 1146.)   The father in Cole was clearly exercising dominion and control over the drugs by keeping them in his safe.   He also testified that he had not yet decided whether to dispose of the drugs or not.  (People v. Cole, supra, 202 Cal.App.3d at p. 1442, 249 Cal.Rptr. 601.)   Under the Mijares test, his possession was neither momentary nor for the purpose of disposal.

We therefore view the Cole decision as an incorrect decision that tries to eliminate the momentary possession requirement from Mijares.   This is a misinterpretation of the legislative intent and the intent of the Mijares majority.   The proper application of Mijares is to situations of “guileless possession,” in which a person briefly handles a narcotic while disposing of it.

Even if we did not disagree with Cole, it would not help defendant here because there was no testimony here that defendant intended to dispose of the drugs.   The trial court did not err in refusing to give the Mijares instruction.

POSSESSION FOR SALE

 Possession for sale does require a specific intent to sell drugs.  (People v. Hunt (1971) 4 Cal.3d 231, 236, 93 Cal.Rptr. 197, 481 P.2d 205;  People v. Allen (1967) 254 Cal.App.2d 597, 602, 62 Cal.Rptr. 235.)   In this case, the jury was instructed that a specific intent to sell was an element of the crime.  (CALJIC No. 12.01.)   The purpose to sell drugs may be shown by the testimony of an experienced narcotics officer that, in his opinion, the narcotics are held for purposes of sale, based on quantity, packaging, and the normal use of an individual.  (People v. Hunt, supra, 4 Cal.3d at p. 237, 93 Cal.Rptr. 197, 481 P.2d 205.)   In this case an officer testified that the drugs and items in the duffel bag were, in his opinion, used for the sole purpose of manufacturing, adulterating, packaging and sales of narcotics.   Once the defendant was found to be in possession of the drugs, this testimony was sufficient to establish defendant's intent to possess the drugs for sale.  (People v. Grant (1969) 1 Cal.App.3d 563, 570, 81 Cal.Rptr. 812.)

DISPOSITION

The judgment is affirmed.

HOLLENHORST, Associate Justice.

CAMPBELL, P.J., and DABNEY, J., concur.