Metropolitan News-Enterprise


Thursday, February 11, 2010


Page 3


Court Clarifies Doctrine Excusing Transitory Possession of Contraband


By STEVEN M. ELLIS, Staff Writer


A man who abandoned drugs he had just stolen was not entitled to a jury instruction excusing momentary possession where he only threw them away because he faced strangulation by an alleged drug dealer or arrest, the Fourth District Court of Appeal ruled yesterday.

Affirming Efrain Negrete Paz’s methamphetamine possession convictions, Div. Three said he was ineligible for an exemption from culpability for “transitory possession” where there was no evidence he possessed the drugs only to dispose of them, or abandoned them voluntarily.

Justice William W. Bedsworth wrote that “a defendant who disposes of contraband not out of scruple, but because of the threat of bodily harm or police apprehension cannot invoke” the exemption identified by the California Supreme Court in People v. Mijares (1971) 6 Cal.3d 415.

Paz was arrested after the 13.5 grams of methamphetamine police found in an Altoids tin he threw under a car during a struggle with Jose Salazar led to a search warrant for Paz’s home, which uncovered another 1.12 grams.

Salazar testified the struggle started when he punched Paz for being mouthy and belligerent, and Paz threatened that his “homies” were going to come and help him “kick [Salazar’s] ass.” Salazar told his girlfriend to call 911 and put Paz in a choke hold, but let him go after Paz threw the tin under the car.

Paz, however, claimed he had been negotiating to buy the drugs from Salazar, then changed his mind and stole them instead, only to have Salazar catch him and wrestle with him to retrieve them. He claimed he fled because he was on parole, and said the drugs found in his home belonged to his brother.

Paz was convicted in 2008 of two methamphetamine possession counts and one count of active participation in a criminal street gang, and Orange Superior Court Judge M. Marc Kelly sentenced him to five years and eight months in prison.

On appeal, Paz said Kelly should have instructed the jury, sua sponte, that transitory possession is insufficient to establish legally culpable possession of a controlled substance. He argued that his possession was not a criminal offense because he only held the tin for moments before throwing it, but Bedsworth flatly rejected the contention.

Examining cases applying Mijares, the justice wrote that “there seems to be a consensus” that individuals who take drugs from a friend merely to throw them out a car window are “not legally culpable,” but said the defense did not apply because Paz’s abandonment was not voluntary.

“There is nothing in Paz’s testimony or that of his witnesses to suggest he tossed the Altoids tin for any reason other than to avoid strangulation or arrest,” Bedsworth said. “We see no reason that should be a basis for exoneration any more than it would be if a mugger, chased by police into a cul-de-sac, threw down the victim’s wallet.”

The justice also rejected any contention that Paz possessed the methamphetamine solely to dispose of it, and rebuffed Paz’s argument that a defense under Mijares is based on the length of time the item is possessed, not the defendant’s mental state.

“No case that we have found suggests that transitory possession cannot be punished on the basis of its brevity alone,” Bedsworth wrote. “A purchaser of drugs can be arrested for possession the moment he takes delivery, no matter ‘the length of time the item is possessed.’ ”

Justices William F. Rylaarsdam and Richard D. Fybel joined Bedsworth in his opinion.

The case is People v. Paz, G041327.


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