People v. Cole

• Decision Date: 25 July 1988
• Citation: 202 Cal.App.3d 1439,249 Cal.Rptr. 601
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Richard Andrew COLE, Defendant and Appellant. Crim. B025404.

Page 601

249 Cal.Rptr. 601

202 Cal.App.3d 1439

The PEOPLE, Plaintiff and Respondent, v. Richard Andrew COLE, Defendant and Appellant.

Crim. B025404.

Court of Appeal, Second District, Division 6, California.

July 25, 1988.

Certified for Partial Publication ^*.

[202 Cal.App.3d 1441] Dennis A. Fischer, Santa Monica, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Supervising Deputy Atty. Gen., Sharon R. Wooden and Mark Alan Hart, Deputy Atty. Gen., for plaintiff and respondent.

STEVEN J. STONE, Presiding Justice.

Richard Andrew Cole appeals from a judgment of conviction for unlawful possession of cocaine (Health & Saf. Code, § 11350). ¹ We find merit in his assertion that a special defense instruction could have misled the jury concerning a material factor in his defense and that the trial court had a duty to correct it. Consequently, because of prejudicial error in jury instructions, we reverse and remand the case for retrial. ²

FACTS

July 3, 1985, Officer Floriano, Detective Loniero, Sergeant James, and other officers searched appellant's house and garage pursuant to a search warrant, and uncovered a safe containing $6,354.55 in currency, weights for a small scale, razor blades, a straw, a gold ring, a plastic ziplock bag of white powder and a similar bag containing white residue. When Officer Floriano, in Sergeant James' presence, showed appellant the bag containing white powder, appellant said, "That's for my personal use." The bag contained .651 grams of an approximate 48 percent cocaine mixture. On a nearby workbench, Officer Floriano found a scale, a white powder covered microscope, several pieces of paper resembling bindles used to package cocaine, and a box of ziplock baggies. Also, in the garage, they observed large cans of coffee, candy bars, and similar food items, as well as a large copying machine and computer equipment.

Officer Loniero testified that he found four paper bindles, pre-cut bindles, a sifter and a small scale in the upstairs bedroom and three bindles of cocaine in a purse belonging to appellant's daughter Jennifer.

Jennifer, 18 years old at trial one and a half years after the search, admitted the cocaine found in the upstairs room was hers and testified that the cocaine found in the safe also belonged to her. She said her father confiscated it the day before the search when he caught her using it in the bathroom. According to Jennifer, appellant took the cocaine, stormed out of the bathroom, and threatened to call the police. She was already on juvenile court probation for drug use. When the police arrived the next day, she initially assumed they were responding to a call from her father. She identified the baggies seized from the safe as those her father took from her and said he also seized other items, such as the razor blades and straw. At time of trial, she was still on juvenile court probation for admitting possession of the cocaine.

Appellant testified to the same sequence of events and explained that Jennifer had had a drug problem for some time. He told his wife, when he seized the baggies from Jennifer, that he was going to call the police, but his wife urged him not to do so. She wanted to dispose of the drugs immediately but later agreed to discuss the matter with him over the weekend and then to decide whether to discard the cocaine or turn it over to the police. He acquiesced and put the cocaine in the safe until they decided which course to pursue. The following day, the police arrived with the search warrant.

Appellant is in the vending machine and computer business and explained that he uses the scale to weigh various foods such as cheesecake, coffee, and sandwich meat. He purchased the microscope, he said, to study pond microorganisms with his youngest daughter, and the cash was for the purchase of a computer, the invoice for which he gave to his former attorney, Matisoff. Appellant's bank statement showed a corresponding withdrawal and Matisoff testified appellant did, in fact, give him the invoice but that he had misplaced it. Appellant said he used razor blades to scrape adhesive off his vending machines and had placed a large quantity in the safe when he purchased them several years earlier to keep them safely away from his youngest daughter. He said he told the officer the cocaine in the safe was "for personal use" or "for her personal use" as he was afraid they would arrest Jennifer for sales.

Appellant's wife, Tamara Cole, said she asked appellant not to call the police because she feared Jennifer would be removed from their home since she was already on probation. They knew she had a drug problem and the entire family had been in counseling.

Joe Naso, appellant's employee, was present July 2 when appellant came out of the house yelling and screaming. Naso saw him deposit what appeared to be a baggie of white powder in the safe. He said the scales were used for weighing food, such as cheesecake slices, for the vending machines. Two character witnesses from the community testified to appellant's good character and reputation for honesty but were unaware until trial that he had been convicted of selling marijuana in 1965, arrested for burglary in 1967, or arrested in connection with a bottle rocket in 1976.

DISCUSSION

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Special defense instructions

Appellant requested, and the trial court gave, the following jury instruction: "The fact that the defendant physically handled a controlled substance for only brief moments for the purpose of abandoning or disposing of the controlled substance is insufficient evidence to convict the defendant of possession of that controlled substance even though he knew its nature as a controlled substance. [p] If you have a reasonable doubt whether the defendant was handling the controlled substance for only brief moments for the purpose of disposal you must give him the benefit of this doubt and find him not guilty."

This instruction is based upon People v. Mijares (1971) 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115. There, the California Supreme Court was faced with the issue whether handling a narcotic for the purpose of disposal is sufficient for conviction of the crime of possession as defined by former section 11500, now included in section 11350. In Mijares, defendant was seen by a Mrs. Beard to lean into a car, slap the passenger, remove something from him, throw it in a field and drive away. Mrs. Beard called the sheriff. Defendant drove his passenger to a fire station and said his friend needed oxygen. The passenger had overdosed on heroin. A sheriff's deputy retrieved the objects thrown from the car--a hypodermic needle, paper, and spoon with a grey residue. The deputy arrested defendant.

Defendant stated that he picked up his friend who appeared groggy, drove him around to revive him, and when he stopped, the passenger passed out. Suspecting he had overdosed, defendant searched, found the narcotics kit, and threw it away before going for help. He contended on appeal that the jury should have been instructed that if his handling of the narcotic was solely for the purpose of disposal, such handling was insufficient for conviction of the crime of possession.

The Supreme Court declared that federal courts had rejected the notion that criminal possession under federal statutes includes such transitory activity as momentary handling of drugs. The court noted that the Seventh Circuit reversed a federal narcotics conviction, declaring; " ' "To 'possess' means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature." ' " ( Id., at p. 420, 99 Cal.Rptr. 139, 491 P.2d 115.) The Supreme Court also found support for defendant's position in Garland v State (1933) 165 Miss. 136, 146 So. 637 in which the Mississippi Supreme Court declared that a wife who had been arrested for throwing out a jug of illegal alcohol had possessed it for the sole purpose of putting an end to the unlawful possession of the liquor by her husband. (Ibid.) The Mijares court held, in paraphrasing Garland, 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 Rodriguez" (id., 6 Cal.3d at p. 420, 99 Cal.Rptr. 139, 491 P.2d 115) and that the jury should have been instructed that the possession prohibited by section 11500 does not include mere handling for only brief moments prior to abandoning the narcotics. ( Id., at p. 423, 99 Cal.Rptr. 139, 491 P.2d 115.)

Appellant contends that, while the duration of a defendant's control over a substance is certainly relevant, whether possession lasted "only brief moments" is not the sine qua non of innocent possession as discussed in Mijares and the cases cited therein; the ultimate issue is defendant's intent. (See People v. Hampton (1981) 115 Cal.App.3d 515, 523, 171 Cal.Rptr. 312; People v. Grantham (1972) 26 Cal.App.3d 661, 665, 103 Cal.Rptr. 262; People v. Sonleitner (1986) 183 Cal.App.3d 364, 228 Cal.Rptr. 96.)

Respondent argues that Mijares is based upon momentary handling because the Supreme Court stated that "The logic is inescapable and the rule is well-settled that actual abandonment of an object terminates possession thereof. [Citations.] It would be incongruous to adhere to cases declaring that abandonment concludes an existing narcotic possession and then hold that during the brief moment involved in abandoning the narcotic, a sufficient possession which did not previously exist somehow comes into being to support a conviction for possession of contraband." (6 Cal.3d at p. 422, 99 Cal.Rptr. 139, 491 P.2d 115.) Respondent submits that the special instruction correctly set forth the theory relied upon by appellant, i.e., that appellant had physical possession of the cocaine only briefly while he spoke with his wife, and then immediately...