Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 08F10413
CANTIL-SAKAUYE, J.
A jury convicted defendant of possession of a sharp instrument while in prison (Pen. Code, § 4502, subd. (a)) and found true the allegation that defendant had a prior serious felony conviction (Pen. Code, §§ 667, subds. (b)-(i); 1170.12). The court sentenced defendant to a consecutive six-year term in prison and imposed a $30 court facilities fee (Gov. Code, § 70373). On appeal, defendant contends the trial court erred in failing to instruct sua sponte on the defense of momentary possession. He also contends the retroactive imposition of the court facilities fee was unauthorized. We affirm.
Because defendant has a conviction for a serious felony, he is not entitled to any additional presentence credit under recent amendments to Penal Code sections 4019 and 2933. (Pen. Code, § 4019, former subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50; Pen. Code, § 2933, subd. (e)(3); Stats. 2010, ch. 426.)
FACTS
On the evening in question, defendant, an inmate in Folsom State Prison, was escorted to a holding cell for an unclothed body search. Correctional Officer Mark Suetta unlocked the cell and took a quick look for contraband before placing defendant in the cell and locking it. Suetta instructed defendant to remove all of his clothing. As defendant removed his pants, Suetta saw an object fall from the area of defendant’s waist to the floor. Defendant immediately put his foot over the object. The object appeared to be about six or seven inches long; it was straight, skinny and cylindrical.
Suetta asked defendant what the object was and received no answer. Defendant reached down and picked up the object; he placed it underneath his buttocks on the bench in the cell.
Suetta ordered defendant to drop the object, but defendant ignored the order. Suetta sprayed defendant with pepper spray. Defendant stood up, with his back to Suetta, and appeared to be manipulating or bending the object. Suetta gave a second order to drop the object. Again, defendant ignored the order and Suetta used pepper spray on defendant. After the second spraying, defendant dropped the object outside the holding cell.
The object was a six- or seven-inch-long piece of metal with a sharp point and tape on one end. It was bent like a boomerang. On the floor of the holding cell was a sheath or handle made out of plastic wrap.
At trial, defendant testified in his defense. He claimed the object was already in the holding cell and looked like a piece of trash. When ordered to pick it up and pass it to Suetta, defendant refused because it was not his. After Suetta sprayed him, defendant gave in and picked it up. After the second spray, he put the object through the slot in the cell door.
DISCUSSION
I. No Instruction on Momentary Possession Was Required
Defendant contends the trial court erred in failing to instruct sua sponte on the momentary possession defense. Defendant contends the error was prejudicial because a juror could have believed defendant’s version of events, that he merely picked up the sharp instrument in response to the correctional officer’s demand and dropped it outside the cell, but still have convicted defendant because there was no instruction that momentary possession for disposal was not a crime.
In People v. Martin (2001) 25 Cal.4th 1180, 1191, the California Supreme Court held “recognition 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. [Citation.] The theory of defense to unlawful possession of narcotics announced in [People v.] Mijares [(1971) 6 Cal.3d 415] ‘arose from a situation involving a fleeting, de minimis possession and a reflexive act of abandonment. [Our] holding was that this de minimis possession and reflexive response was not a criminal possession.’ [Citation.]”
In People v. Brown (2000) 82 Cal.App.4th 736, 740, the court rejected a momentary possession defense to a charge of possessing a weapon by a prisoner. “The factors which may militate toward temporary possession for disposal purposes or for the protection of others as recognized in People v. Hurtado [(1996)] 47 Cal.App.4th [805] at page 814, do not apply in a penal institution. Defendant could have simply alerted a guard to the existence of the weapon without picking it up. We do not believe the Legislature, by the enactment of Penal Code section 4502, sanctioned self-help or knowing possession of weapons under the circumstances presented here. Whether there can ever be a circumstance justifying temporary possession in a penal institution is a question not presently before us.” (People v. Brown, supra, at p. 740.)
Defendant contends the facts of this case justify temporary possession and therefore an instruction on the defense of momentary possession was required. We disagree. The defense and the evidence here was not, as it was in People v. Mijares, supra, 6 Cal.3d 415, that defendant possessed the sharp instrument only for a moment while he disposed of it. Rather, defendant claimed he did not possess it; the instrument was not his, and he touched it only after being ordered to do so and sprayed with pepper spray following his refusal to follow the orders. That scenario, essentially a denial of possession and an ordered touching, is not a defense of momentary possession.
Here, the case was tried in recognition that if defendant threw the sharp object out of the holding cell only after being ordered to do so by the officer, defendant was not guilty of violating Penal Code section 4502. The People and the defense presented the jury two separate, conflicting versions of events. In the prosecutor’s version defendant had secreted and carried a sharp instrument on his person and thus was guilty of violating Penal Code section 4502. If the jury believed defendant’s testimony that the sharp instrument was already in the holding cell and he removed it only after Suetta ordered him to and pepper sprayed him, the defense argued he was not guilty.
Although not explicitly articulated, under the defense version, defendant was not guilty because he did not possess the sharp instrument. “Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.]” (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) The right to exercise control necessarily implies the act of control is voluntary. (Cf. People v. Paz (2010) 181 Cal.App.4th 1413 [instruction on transitory possession not required where abandonment involuntary].)
In defendant’s version, he did not exercise control over the sharp instrument. While he picked it up and threw it out of the cell, he did so only upon the order of a correctional officer, an agent of the state. That order was enforced by two bursts of pepper spray. Defendant’s “possession” was completely involuntary; he was only submitting to the officer’s lawful authority. Had the People attempted to prosecute defendant for this “possession”--and here the People did not as they sought to prove defendant carried the weapon on his person--the defense of entrapment would apply (see generally People v. Barraza (1979) 23 Cal.3d 675, 689-691) and perhaps also the defense of necessity (see generally People v. Miceli (2002) 104 Cal.App.4th 256, 267).
There was no evidence of momentary possession of contraband for purposes of disposal. Accordingly, the trial court did not err in failing to give sua sponte such an instruction.
II. Imposition of the Court Facilities Fee Was Authorized
Defendant committed his crime on September 23, 2008. At sentencing the following year, the court imposed a $30 court facilities fee pursuant to newly enacted Government Code section 70373, subdivision (a)(1). That statute “requires courts to impose an assessment effective January 1, 2009, ‘on every conviction for a criminal offense....’ [Citations.]” (People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 5.) Imposing the fee on convictions for offenses that occurred prior to the enactment of Government Code section 70373 has been upheld against the challenges that it is an ex post facto law. (People v. Fleury (2010) 182 Cal.App.4th 1486, 1494; People v. Brooks, supra, at p. 7.)
Defendant contends imposing the fee was unauthorized because absent a clear legislative intent to the contrary, statutory enactments apply prospectively only. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1193-1194.) He contends that nothing in Government Code section 70373 indicates the Legislature intended retroactive application of the new law. This court rejected the same contention in People v. Castillo (2010) 182 Cal.App.4th 1410. Noting the assessment fee was levied not on defendant’s offense, but on his conviction, which occurred after the statute’s effective date, we found the language of the statute indicated the Legislature intended the fee be imposed on all convictions after the statute’s effective date. (Id. at p. 1414.)
Defendant asks this court to reconsider its decision in Castillo because, unlike the statute at issue in People v. Alford (2007) 42 Cal.4th 749, on which Castillo relied, here the legislation was not passed to address an emergency. We decline to reconsider Castillo because defendant presents no convincing argument that it was wrongly decided. The absence of an emergency does not alter the conclusion that the Legislature intended the assessment fee be imposed on all subsequent convictions.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.