People v. Mijares

• Decision Date: 31 December 1971
• Docket Number: Cr. 15641
• Court: California Supreme Court
• Parties: , 491 P.2d 1115 The PEOPLE, Plaintiff and Respondent, v. Andrew Mares MIJARES, Defendant and Appellant. In Bank

Page 139

99 Cal.Rptr. 139

6 Cal.3d 415, 491 P.2d 1115

The PEOPLE, Plaintiff and Respondent, v. Andrew Mares MIJARES, Defendant and Appellant.

Cr. 15641.

Supreme Court of California,

In Bank.

Dec. 31, 1971.

Marshall Miles, San Bernardino, under appointment by the Supreme Court, and Arthwell C. Hayton, San Bernardino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Gaye W. Herrington, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Associate Justice.

A jury found defendant Andrew Mares Mijares guilty of possession of heroin in violation of section 11500 of the Health and Safety Code. He admitted two prior felony convictions, one of possessing and one of furnishing heroin, and was therefore sentenced to prison for the 15-year minimum term prescribed by law. ¹ He appeals from the judgment of conviction.

The principal question presented is whether the act of handling a narcotic for the sole purpose of disposal constitutes 'possession' within the meaning of section 11500. We do not here reach the question of whether the sentence imposed pursuant to statute constitutes cruel or unusual punishment. (Cal.Const., art. I, § 6.)

Defendant was observed by Mrs. Francine Beard as he leaned inside a parked car and slapped a passenger across the face. Moments later Mrs. Beard further observed defendant remove something resembling a farmer's red handkerchief from the car and throw the object into a nearby field. Defendant returned to the automobile and drove off. Mrs. Beard telephoned the Ontario Police Department and reported the events and the license number of the vehicle.

Meanwhile, defendant had driven his car with the passenger, one Johnny Rodriguez, to the Ontario Fire Department. Defendant ran to the door of the fire station and announced: 'I have got a guy out here that needs oxygen or needs air.' Rodriguez was removed from the car and placed on the ground; he was described as blue and not breathing. When breathing was finally restored by means of resuscitation, Rodriguez was taken to a hospital by ambulance. Defendant, after shouting his license number to one of the firemen, left the station, but returned in less than a minute and waited until the police arrived.

Deputy Henry of the San Bernardino County Sheriff's office arrived at the station shortly thereafter. He had been summoned to the field where Mrs. Beard had observed the handkerchief-wrapped object thrown from the car. Deputy Henry's investigation uncovered two handkerchiefs, a piece of white cloth which contained an eyedropper, and a piece of yellow tissue paper. Inside the paper was a teaspoon; the bowl of the spoon contained a white powder and a white-greyish paste-type substance adhering to the bottom of the bowl, and chemical analysis confirmed the presence of heroin. The officer also discovered four hypodermic needles, two of which were covered by a plastic case to keep the needle portion sterile; one was exposed, and the fourth had cardboard or paper wrapped around the point. He proceeded to the fire station and arrested defendant, who fitted the description provided by Mrs. Beard.

At trial, the jury could have believed either of two accounts of events which had purportedly transpired prior to the time Mrs. Beard observed defendant slapping Rodriguez. First, there was sufficient evidence to conclude that both defendant and Rodriguez had taken heroin on the day in question. Sergeant Wickum testified he noted that defendant had two partially scabbed puncture wounds in the area above his left elbow and that defendant had some of the characteristics of a person under the influence of heroin. There was also testimony, though conflicting, that defendant and Rodriguez admitted both had 'fixed' that day. ²

On the other hand, an equally credible account of the day's events indicated that defendant had picked up his friend Rodriguez on a street corner; that Rodriguez appeared drowsy, about to lose consciousness; that defendant drove him around for a few minutes hoping to revive; him but that when they stopped the car Rodriguez became unconscious. At that moment defendant began to slap Rodriguez, again for the purpose of reviving him. When that failed, he believed medical help was necessary because he thought his friend was overdosing. He looked inside Rodriguez' pockets and found the narcotics outfit which he believed might still be in Rodriguez' possession if he had recently taken drugs. He then threw the outfit out of the car, and drove to the fire station.

Defendant does not assert there was insufficient evidence to justify a finding that he was in momentary 'possession' of the heroin. Defendant contends, rather, the jury should have been instructed that if it believed he did not himself use heroin on the day in question or handle it in furnishing narcotics to Rodriguez but instead had no contact with the narcotic other than to remove it from Rodriguez' pocket for the purpose of disposal, such handling is insufficient for conviction of the crime of possession as defined by section 11500. We find this contention persuasive.

While neither this court nor the Courts of Appeal have had the opportunity to decide the question of whether a momentary handling of drugs is sufficient to constitute possession within the meaning of section 11500 or section 11530 (possession of marijuana) of the Health and Safety Code, both the Second and Seventh Circuits have rejected the notion that possession under the federal statutes includes such transitory activity. ³

In United States v. Santore (2d Cir. 1960) 290 F.2d 51, the only evidence of possession introduced against one defendant was his furtive attempt to remove a package of narcotics from the trunk of a parked automobile, but after grabbing the package he was firghtened away, leaving the narcotics behind. The court stated: 'The Government argues that Narducci's momentary grasp of the package constituted 'possession' of it by him, and that at that moment the crimes with which he and Tarlentino were charged were completed. We cannot agree.' (290 F.2d at p. 64; see on rehg. en banc, 290 F.2d at p. 79; see also United States v. Gregory (2d Cir. 1962) 309 F.2d 536, 538--540 (Kaufman, J., dissenting).) ⁴ In United States v. Landry (7th Cir. 1958) 257 F.2d 425, 431, the Seventh Circuit likewise 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.'

Further support for the conclusion that the conduct of defendant does not constitute possession can be found by analogy to certain of the prohibition cases. Thus, in Garland v. State (1933) 165 Miss. 136, 146 So. 637, the defendant was convicted of illegally possessing intoxicating liquor. Police officers broke into the defendant's home, whereupon she picked up a homemade jug, ran to the back door, and threw the jug onto the steps, breaking it. The Supreme Court of Mississippi, in reversing, assumed that any possession before the defendant picked up the jug rested in her husband; and then declared: 'It is true the evidence showed that (defendant) in trying to destroy the jug of whisky had the manual possession of it, but under the law it does not conclusively follow that such possession is unlawful. . . . Her possession was for the sole purpose of putting an end to the unlawful possession of the liquor by her husband.' (146 So. at p. 638.) To paraphrase Garland, 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 Rodrigeuz. (See also State ex rel. Atty. Gen. (Harbin v. State) (1923) 210 Ala. 55, 97 So. 426.)

Courts of this state have spoken on the issue of momentary possession on three occasions, and each time there was the clear implication that given the proper factual surroundings, such limited handling would not support a conviction. Thus, in Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304, the defendant maintained he ran with and discarded a narcotics kit because he sensed he was being framed by his female companion, and attempted 'to get out of the frame' by throwing the object over a fence. We granted a writ directing the magistrate to permit defendant, as a defense to possession, to introduce evidence concerning the fleeting purpose of his taking the narcotics outfit and casting it over the fence.

In People v. Widener (1963) 220 Cal.App.2d 826, 34 Cal.Rptr. 130, the defendant was arrested in his car in which police officers found two partially burned marijuana cigarettes and a quantity of illegal pills. The defendant explained at trial that during a Halloween party in his home the previous week these items had been left behind, and he had taken them with him that evening for disposal. Rather than flatly holding that possession for disposal is nevertheless possession under the statute, the court said, 'Even if it be assumed that defendant's own explanation of his reasons for carrying the narcotic constituted a defense, the jury was not required to believe it.' (220 Cal.App.2d at p. 829, 34 Cal.Rptr. at p. 132.)

In People v. Landry (1951) 106 Cal.App.2d 8, 234 P.2d 763, the court in affirming a conviction of possession of heroin rejected the defendant's contention that he should have been able to introduce evidence that a third person had 'planted' the drugs to entrap him. The defendant claimed that he only possessed the heroin for a few moments after its discovery, during which he attempted to flush the drugs down the toilet. The implication of the opinion was that had the defendant made a better offer of proof to demonstrate the possibility that a third person had in fact planted the drugs, his handling solely for the purpose of flushing the heroin down the toilet would have been...