People v. Sullivan, D008507

• Decision Date: 22 November 1989
• Docket Number: No. D008507,D008507
• Citation: 215 Cal.App.3d 1446,264 Cal.Rptr. 284
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lon Albert SULLIVAN, Defendant and Appellant.

Page 284

264 Cal.Rptr. 284

215 Cal.App.3d 1446

The PEOPLE, Plaintiff and Respondent, v. Lon Albert SULLIVAN, Defendant and Appellant.

No. D008507.

Court of Appeal, Fourth District, Division 1, California.

Nov. 22, 1989.

Certified for Partial Publication ¹

[215 Cal.App.3d 1448] Ronald K. Olson, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Senior Asst. Atty. Gen., Pat Zaharopoulos and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Lon Albert Sullivan appeals his convictions for manufacturing methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)), possessing methamphetamine (Health & Saf.Code, § 11377, subd. (a)), possessing methamphetamine for sale (Health & Saf.Code, § 11378), and driving without a license (Veh.Code, § 14601.1, subd. (a)). On appeal, he contends the court committed instructional and sentencing errors. We conclude Sullivan's requested instruction was properly refused, his conviction of possession of methamphetamine must be reversed because it is a lesser included offense of his conviction of possession of methamphetamine for sale and that his sentence for possession of methamphetamine for sale must be stayed pursuant to Penal Code section 654.

FACTS

At about 7:20 p.m. on November 24, 1987, Sheriff's Deputy Donald Phelps stopped Sullivan for driving a vehicle without a rear license plate and for having a right turn indicator light that flashed white instead of red. Sullivan got out of his truck and walked back to the deputy. Deputy Phelps asked Sullivan for his name and driver's license. Sullivan told the deputy his name and stated his license had been suspended.

Phelps approached Sullivan's Land Cruiser and smelled chemicals he associated with methamphetamine labs. After Phelps arrested Sullivan for driving without a license, he opened the back of the vehicle and was "assailed" with an overpowering chemical odor. In the vehicle he found an amber fluid and other items associated with methamphetamine labs. He radioed for a narcotics task force officer to come to the site.

A search of Sullivan's person yielded a plastic bag containing 6.7 grams of 53 percent pure methamphetamine. The search of his vehicle yielded chemicals and equipment used for producing methamphetamine. There were containers of liquid containing trace amounts of methamphetamine which were consistent with the waste product generated by the second step of methamphetamine production. The materials did not constitute a complete methamphetamine lab; a chemical necessary for the final step was not present.

In the front seat of the vehicle, the police seized a gram scale, numerous small plastic baggies and Sullivan's address book which had notations consistent with the purchase of a chemical necessary for methamphetamine manufacture and with the sale of methamphetamine.

The police proceeded to Sullivan's house and searched the interior but found nothing. The officers noticed a shed in the back which had a lock on the door. They asked Sullivan's girlfriend for a key to the shed. She said Sullivan had the key. The officers unsuccessfully attempted to open the lock with her keys and then obtained Sullivan's key rings. One of his keys opened the lock.

Inside, the officers found an orange metal container labeled Freon, a chemical used in processing methamphetamine, as well as a separator funnel and other paraphernalia associated with the manufacture of methamphetamine.

In his defense, Sullivan presented testimony that while he was in custody, his girlfriend had rented out a shed behind their house to Thomas Siegor. Her friend had drawn up a written rental receipt which was produced at trial. After several months had lapsed without Siegor paying any rent, Sullivan borrowed a pair of bolt cutters from a friend and cut Siegor's lock off the shed. Sullivan and his friend entered the shed where they found the methamphetamine, chemicals and paraphernalia. The friend urged Sullivan to call the police. Sullivan was afraid to call the police because he was on probation for a drug offense. Instead, he decided to take the chemicals and equipment to an industrial park and dispose of them in a dumpster there. He wanted to remove the chemicals from the property immediately because he knew they were dangerous and he was afraid for his children.

He loaded the Land Cruiser with the chemicals and equipment from the shed, put his own lock on the shed's door and told his girlfriend he was going to the store. He was pulled over by the sheriff's deputy about a quarter mile from his house.

DISCUSSION

I

Sullivan contends the court erred in refusing his requested instruction that "Limited handling of contraband, such as for the purpose of abandonment, will not support a conviction for possession."

A trial court has a duty to instruct the jury on principles of law which are closely and openly connected with the evidence and which are necessary to the jury's understanding of the case. (People v. Flannel (1979) 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1.) A defendant is entitled to have the court instruct on a defense theory if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed. (People v. Wickersham (1982) 32 Cal.3d 307, 324, 185 Cal.Rptr. 436, 650 P.2d 311; People v. Lemus (1988) 203 Cal.App.3d 470, 477, 249 Cal.Rptr. 897.) The testimony of the defendant alone may constitute substantial evidence to warrant a requested instruction. (People v. Speaks (1981) 120 Cal.App.3d 36, 40, 174 Cal.Rptr. 65.) " ' "The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon." ' [Citations.]" (People v. Burnham (1986) 176 Cal.App.3d 1134, 1143, 222 Cal.Rptr. 630, emphasis omitted.) " ' "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." ' [Citations.]" (Ibid., emphasis omitted.)

Sullivan's requested instruction derives from the Supreme Court's decision in People v. Mijares (1971) 6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115. In Mijares, the defendant reached into his friend's pocket, grabbed a red bandanna containing heroin and tossed it into a field. The defendant then drove his friend, who had apparently overdosed, to a fire station for help. The court reviewed cases suggesting a momentary possession of contraband for disposal would not support a possession conviction, noting well-settled law establishing actual abandonment of an object terminates possession of the object. The court reasoned "[i]t 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." (Id. [215 Cal.App.3d 1451] at p. 422, 99 Cal.Rptr. 139, 491 P.2d 1115.) The court concluded the jury should have been instructed that illegal possession "does not include merely handling for only brief moments prior to abandoning the narcotic." (Id. at p. 423, 99 Cal.Rptr. 139, 491 P.2d 1115.) The Supreme Court also emphasized its "decision in no way insulates from prosecution under the narcotics laws those individuals who, fearing they are about to be apprehended, remove contraband from their immediate possession" nor insulated "certain actions relating to abandonment of narcotics [which] fall within the proscription of section 135 of the Penal Code, forbidding the destruction or concealment of evidence." (Id. at p. 422, 99 Cal.Rptr. 139, 491 P.2d 1115.)

Following the Mijares decision, the instruction has been refused in a number of cases because the evidence did not show the defendant possessed the evidence for the purpose of disposal (see People v. Grantham (1972) 26 Cal.App.3d 661, 103 Cal.Rptr. 262 [defense version showed defendant was keeping illegal drugs in a safe place until claimed by another]; People v. Booker (1978) 77 Cal.App.3d 223, 143 Cal.Rptr. 482 [defense version showed ex-felon defendant was carrying a gun for the purpose of selling it to a pawnbroker]; People v. Hampton (1981) 115 Cal.App.3d 515, 171 Cal.Rptr. 312 [defense version showed defendant only briefly possessed air-freighted shipment of marijuana but nothing indicated his possession was for disposal] ); or because the evidence showed the disposal of contraband was in response to a fear of being apprehended by the police (see People v. Rand (1972) 23 Cal.App.3d 579, 100 Cal.Rptr. 473 [defendant fled with drugs due to phone call by the police]; People v. Sonleitner (1986) 183 Cal.App.3d 364, 228 Cal.Rptr. 96 [defendant flushed drugs down toilet as police raided house] ).

Recently, the court in People v. Cole (1988) 202 Cal.App.3d 1439, 249 Cal.Rptr. 601 held the Mijares defense was not limited to the type of fleeting possession that occurred in Mijares. The Cole court held Mijares was "not limited to possession for 'brief moments' only." (People v. Cole, supra, at p. 1445, 249 Cal.Rptr. 601, emphasis omitted.) The Cole court held "possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession." (Ibid., emphasis omitted.) In Cole, the defendant's house was searched pursuant to a search warrant. Cocaine was found in the defendant's safe and elsewhere in the house. The defendant testified the day before the search he had seized the cocaine from his minor daughter, who was on probation for possessing cocaine, and placed it in his safe, intending either to dispose of the drugs himself or to turn them...