People v. Martin

• Decision Date: 02 July 2001
• Docket Number: No. S087880.,S087880.
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Louis MARTIN, Defendant and Appellant.

108 Cal.Rptr.2d 599

25 Cal.4th 1180

25 P.3d 1081

The PEOPLE, Plaintiff and Respondent, v. Robert Louis MARTIN, Defendant and Appellant.

No. S087880.

Supreme Court of California.

July 2, 2001.

Sharon M. Jones, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kyle Niki Shaffer and Susan E. Miller, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

In People v. Mijares (1971) 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115 (Mijares), this court held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. (Id. at p. 419, 99 Cal.Rptr. 139, 491 P.2d 1115.) Nearly two decades later, the court in People v. Cole (1988) 202 Cal.App.3d 1439, 249 Cal. Rptr. 601 (Cole) read our decision in Mijares as holding that "possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession," and further concluded the defense "is not limited to possession for `brief moments' only." (Id. at p. 1445, 249 Cal.Rptr. 601, italics in original.)

To date, with the exception of one published decision that, in dicta, seemingly accepted the rationale and holding of Cole (see People v. Spry (1997) 58 Cal.App.4th 1345, 68 Cal.Rptr.2d 691), every court that has considered the issue has rejected Cole's expansive reading of Mijares's transitory possession defense. We granted review to clarify the nature and scope of the affirmative defense of transitory possession for disposal first announced in Mijares. We conclude the rationale and holding of Cole misconstrues the defense as devised in Mijares, and that Cole should therefore be disapproved. Accordingly, the judgment of the Court of Appeal will be affirmed.

Facts and Procedural History

On June 3, 1997, defendant Robert Louis Martin was living with his girlfriend, Janelle Davis, and her 19-year-old son, Guy Davis, in Hemet, California. Sometime in the late afternoon a family altercation commenced at the home during a visit by Janelle's nephew, Charles Trip, and his wife, Nicole Trip. Defendant returned home with his three young children shortly after Charles and Nicole arrived. According to Janelle, who testified for the defense, when defendant entered the house she called him into the kitchen, handed him a small packet of white powder she had just discovered in Guy's room, which she suspected to be drugs, and asked defendant to "[g]et rid of it."¹ The two then returned to the living room and began arguing with the visitors.

The melee escalated. Guy Davis entered the argument and, according to his mother's testimony, hit defendant with a pipe, accidentally hitting her as well. Nicole Trip testified Guy was wielding a small "bat" and defendant had picked up a chair and was holding it over his head in a threatening manner. As the visitors and a neighbor, Kenneth Biggs, became involved in the fracas, defendant yelled for everyone to get out of the house. Defendant's children ran from the house, and most of the adults also exited, including defendant. Ultimately, defendant wound up outside in the alley behind the house, facing a group of adults comprised of family members and neighbors as he screamed and swung a metal pipe around himself in an arc, as one would swing a baseball bat. Defendant also picked up and threw rocks at the group, hitting a neighbor, Naomi Biggs, in the leg. Nicole Trip testified that as she tried to go past defendant to enter the house to call police,² defendant stepped in her direction and took a "full swing" at her with the pipe. She "jump[ed] back" and the pipe missed her by three or four feet. Defendant did not actually hit anyone with the pipe during the episode.

Police officers Randy Jahn and Scott Jernagan arrived on the scene at 7:00 p.m. They found defendant and a neighbor, Kenneth Biggs, in a fighting stance with others standing around. A three-foot length of pipe was recovered from the ground six inches from where defendant was standing. After questioning defendant and the others at the scene for approximately 30 minutes, Officer Jahn handcuffed defendant and took him into custody, and Officer Jernagan transported him to the Hemet police station. At the station Officer Jernagan searched defendant's pants pockets and discovered a "bindle" containing .12 grams of methamphetamine. When Officer Jahn questioned defendant about the methamphetamine, he responded, "I don't know how I got it, and it's not mine. I don't know how it got there."

Defendant was charged with two felonies and two misdemeanors: assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)³ [swinging the pipe at victim Nicole Trip]); possession of methamphetamine (Health & Saf.Code, § 11377, subd. (a)); misdemeanor battery (§ 242 [ (hitting Naomi Biggs with rocks) ]); and misdemeanor fighting in public (§ 415, subd. (1)). The amended information further alleged defendant had not remained free of convictions for five years after serving a prison term (§ 667.5, subd. (b)) and had previously been convicted of three serious and violent felonies. (§§ 667, subds.(c) & (e), 1170.12, subd. (c).) Defendant pled not guilty and denied all enhancement allegations. The misdemeanor charge of fighting in public was dismissed pursuant to section 1385 prior to the start of trial.

Defendant was found guilty by a jury of the three remaining charges. In the second bifurcated phase of trial, the court found all the enhancement allegations true. Thereafter, at sentencing, the court expressly declined to exercise discretion under section 1385 to strike any of the prior convictions. Defendant was sentenced to four terms: two concurrent prison terms of 25 years to life, one for each of the felony convictions; one concurrent term of six months in county jail for the misdemeanor battery conviction; and a one-year consecutive prison term for not having remained free of imprisonment or felony convictions for five years.

The Court of Appeal reversed defendant's conviction of assault with a deadly weapon for insufficiency of evidence and vacated the 25-year-to life indeterminate term for that offense. It rejected his claim that the trial court erred in refusing to give a defense-requested version of CALJIC No. 12.06 pertaining to the possession of methamphetamine charge (the standard version was given) and affirmed the judgment and sentence in all other respects.

Discussion

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." (People v. Camp (1980) 104 Cal.App.3d 244, 247-248, 163 Cal.Rptr. 510; see People v. Palaschak (1995) 9 Cal.4th 1236, 1241-1242, 40 Cal.Rptr.2d 722, 893 P.2d 717.) It has been observed that the statute proscribing the unlawful possession of controlled substances (Health & Saf.Code, § 11377, subd. (a); see also Health and Saf.Code, § 11350, former § 11500, Stats.1970, ch. 1098, § 1, p.1945, repealed by Stats.1972, ch. 1407, § 2, p. 2987) "makes possession illegal without regard to the specific intent in possessing the substance." (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1452, 264 Cal.Rptr. 284 (Sullivan).)

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. (Ibid.)⁴

Intent to possess the controlled substance for a minimally prescribed period of time has never been an element of the statutes criminalizing simple possession. Nonetheless, in Mijares, supra, 6 Cal.3d at pages 420-422, 99 Cal.Rptr. 139, 491 P.2d 1115, we held that, under limited circumstances, facts showing only a "brief," "transitory" or "momentary" possession could constitute a complete defense to the crime.⁵ 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 friend's pockets, found the narcotics outfit, and threw it out of the car before driving to the fire station for help. (Mijares, supra, 6 Cal.3d at pp. 417-419,99 Cal.Rptr. 139,491 P.2d 1115.)

We 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]." (Mijares, supra, 6 Cal.3d at p. 420, 99 Cal.Rptr. 139, 491 P.2d 1115.) We concluded that the physical control inherent "during the brief moment involved in abandoning the narcotic" was not possession for purposes of the statute. (Id., at p. 422, 99 Cal.Rptr. 139, 491 P.2d 1115.) We reasoned that if...