Opinion
C085573
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. TODD WESLEY DUPREE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF17-00094)
Defendant Todd Wesley Dupree appeals a judgment entered after a jury convicted him of possession of a controlled substance while armed (Health & Saf. Code, § 11370.1, subd. (a)), giving false information to a peace officer (Pen. Code, § 148.9, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant contends the trial court erred in refusing to instruct the jury on the defense of transitory possession of both the gun and drugs requiring reversal.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of the facts to the issues raised on appeal. Deputies responded to a complaint of a White male—who was possibly armed—with a tattoo on his neck harassing people. They saw a group of three men, one of whom had a tattoo on his neck, who one deputy suspected was defendant. That deputy called out defendant's name, and defendant fled. The deputy did not see defendant grab anything or put anything in his pockets before he took off, nor did he see anything in defendant's hands. The deputies gave chase, ultimately finding defendant hiding under an SUV. A search of defendant yielded a bag of methamphetamine (meth) in his pants pocket and a meth pipe in his shirt pocket. Later, one of the deputies retraced defendant's path and found a loaded handgun.
A recording of defendant's interview as he was transported to jail was played for the jury, but was not transcribed by the court reporter. We have reviewed the previously prepared transcript of the recording, which reflects that according to defendant, there was a gun in the trunk of defendant's car when he arrived at the apartments where the deputies later contacted him. Defendant was unclear who removed the gun from the trunk, but a person named "Dave" who was with defendant had the gun when the deputies arrived in an unmarked car. Defendant took the gun from Dave after seeing the unmarked car, but before defendant suspected the occupants were police. Dave said it might be the police, and defendant grabbed the drugs and pipe because Dave wanted to go smoke marijuana. When a deputy called his name, defendant took off running with the gun, meth, and meth pipe. Defendant dropped the gun after he rounded a corner, but forgot to "ditch that other stuff."
Defendant did not testify in his defense.
After the close of evidence, but before closing arguments, defense counsel made a record of his request that the trial court instruct the jury with CALCRIM No. 2305 regarding transitory possession. He argued defendant's statement to authorities showed a transfer of the gun and drugs from Dave to defendant and that the gun was discarded when defendant rounded the corner, thus necessitating a transitory possession instruction. The People argued against the instruction because the evidence showed defendant, rather than intending to give the drugs and gun to police, ran so that he could dispose of and not be caught with them. The trial court refused to give the requested instruction, finding there was no evidence regarding why defendant took the drugs and gun from Dave and ran.
DISCUSSION
"[T]he trial court must instruct on the general principles of law applicable to the case. [Citation.] The general principles of law governing a case are those that are commonly connected with the facts adduced at trial and that are necessary for the jury's understanding of the case. [Citation.] The trial court must give instructions on every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citation.] Evidence is 'substantial' only if a reasonable jury could find it persuasive. [Citation.] The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence. [Citation.] The trial court need not give instructions based solely on conjecture and speculation." (People v. Young (2005) 34 Cal.4th 1149, 1200.) We review the trial court's refusal to instruct on a defense de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581.)
Defendant contends the trial court prejudicially erred in refusing to instruct the jury on the defense of transitory possession, also known as momentary possession. Defendant analogizes his case to the defendant in People v. Mijares (1971) 6 Cal.3d 415 (Mijares), where the defendant argued he should not be legally responsible for momentarily possessing a heroin setup he discovered on his friend who was overdosing in the defendant's car for the limited purpose of throwing the drugs into a field to dispossess the friend of the drugs prior to seeking medical assistance at a fire station (id. at pp. 418-419).
As recognized in People v. Martin (2001) 25 Cal.4th 1180, 1182, Mijares "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." This defense " 'offers a judicially created exception of lawful possession under certain specific circumstances as a matter of public policy, similar to the defenses of entrapment and necessity.' " (Martin, at p. 1191, quoting People v. Spry (1997) 58 Cal.App.4th 1345, 1369.) "[R]ecognition of a 'momentary possession' defense serves the salutary purpose and sound public policy of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms." (Martin, at p. 1191.) Nonetheless, the Mijares decision was clear that this rule "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." (Mijares, supra, 6 Cal.3d at p. 422.)
Consistent with this, the Judicial Council jury instruction for "Momentary Possession of Controlled Substance," CALCRIM No. 2305, explains that a defendant is not guilty of possession if the defendant proves by a preponderance of the evidence that he or she possessed the drug: (1) "only for a momentary or transitory period;" (2) in order to "abandon," "dispose of," or "destroy" it; and further proves (3) "[t]he defendant did not intend to prevent law enforcement officials from obtaining" the drug. CALCRIM No. 2510 recognizes a similar defense for "momentary possession" of a firearm.
Here, the trial court refused to give the momentary possession instruction, finding there was no evidence regarding why defendant took the drugs and gun from Dave and ran. We agree that defendant was not entitled to the momentary possession instruction.
There was no evidence defendant took only momentary possession of the gun and drugs to abandon, dispose of, or destroy them, as opposed to evading authorities. Rather, there was evidence to the contrary. If one credits defendant's statement to the deputies, he took possession of the gun after seeing the unmarked car, but before he suspected the occupants were police. Dave said it might be the police, and defendant grabbed the drugs and pipe because Dave wanted to go smoke marijuana. After the deputy called his name, defendant took off running with the gun, meth, and meth pipe. Defendant dropped the gun after he rounded a corner, but forgot to "ditch that other stuff."
Defendant's statement supports that he took possession of the gun, meth, and meth pipe in response to seeing a car pull up and because Dave wanted to smoke marijuana. Once a deputy called defendant's name, his plan shifted to "ditching" the illicit items. Neither of these factual scenarios falls within the momentary possession defense, and thus, no substantial evidence supported giving the requested instruction.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. DUARTE, J.