Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura Super. Ct. No. 2006002960, Allan L. Steele, Judge.
Esther R. Sorkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, J.
Hugo Angel Chavez appeals from the judgment entered following a jury trial that resulted in his conviction of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and the attempted destruction of evidence. (Pen. Code, § 135.) The trial court suspended the imposition of sentence and placed appellant on probation. One of the conditions of probation was that he serve 240 days in county jail.
Appellant contends that the trial court erroneously failed to instruct the jury sua sponte that he could not be convicted of transporting methamphetamine if he had momentarily possessed it for the purpose of throwing it away. Appellant also contends that the trial court erroneously failed to give sua sponte a unanimity instruction requiring the jury to agree on one act as the basis for the transporting offense. We affirm.
Facts
Officer Edward Kasaba made a traffic stop of a Ford Mustang. Kasaba saw the vehicle travel approximately four-tenths of a mile before it stopped. Two females were in the front seats, and two males were in the rear seats. Appellant was seated behind the driver.
Kasaba saw appellant throw "a clear plastic baggie containing a white substance" out of the window. After the baggie left appellant's hand, Kasaba saw "a white trail of dust coming from the bag." The dust was carried away by the wind. The baggie landed next to a parked vehicle. When it landed, some of the white substance inside the baggie fell out onto the pavement. After the occupants exited the vehicle, a white substance was also found inside the car on the floormat where appellant had been seated. In addition, two small baggies containing a white substance were found in the area of appellant's seat.
The baggie thrown from the vehicle by appellant, the substance that had fallen out of the baggie onto the pavement, the substance found on the floormat, and the two small baggies found in the area of appellant's seat all contained methamphetamine.
Appellant testified as follows: The male seated next to him (Juan Pineda) took a baggie out of his right pants pocket and handed it to appellant. Some of the substance inside the baggie spilled on the floorboard. Pineda told appellant to throw the baggie out the window because Pineda was on parole and was concerned that he would be searched. Appellant assumed that the baggie contained methamphetamine. As Pineda directed, appellant threw it out the window. Appellant hoped that Officer Kasaba would not see the baggie. Before Pineda retrieved the baggie from his pocket, appellant did not know that Pineda possessed methamphetamine. Appellant knew nothing about the two small baggies that were found in the area of his seat. Appellant did not see the baggies when he entered the vehicle.
Momentary Possession
At appellant's request, the trial court instructed the jury on the defense of momentary possession of a controlled substance. The instruction, which followed the language of CALCRIM No. 2305, was as follows: "If you conclude that the defendant possessed methamphetamine, that possession was not illegal if the defendant can prove the defense of momentary possession. In order to establish this defense, the defendant must prove that: [¶] 1. The defendant possessed methamphetamine only for a momentary or transitory period; [¶] 2. The defendant possessed methamphetamine in order to abandon it; AND [¶] 3. The defendant did not intend to prevent law enforcement officials from obtaining the methamphetamine. [¶] The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the three listed items is true." (Italics added.)
Appellant failed to prove the third italicized item of the instruction because he admittedly had intended to prevent Officer Kasaba from discovering the methamphetamine. But he contends that the trial court nevertheless had a duty to instruct the jury sua sponte that, regardless of whether his purpose was to prevent imminent seizure by law enforcement, he could not be convicted of transportation if he had momentarily possessed the methamphetamine in order to throw it away. Appellant contends that such an instruction was required by People v. Mijares (1971) 6 Cal.3d 415, (Mijares).
In Mijares the defendant claimed that he had tried to revive a friend who had overdosed on heroin. The defendant found a narcotics outfit in his friend's pocket and threw it into a field. No police officer was present at this time, but a witness observed the events. The defendant then drove his friend to a fire station and sought emergency medical assistance. A police officer later retrieved the narcotics outfit, which contained heroin, and the defendant was charged with possession of heroin. The Mijares court held that, in these circumstances, the trial court was required to instruct the jury sua sponte that the offense of possessing heroin "does not include merely handling for only brief moments prior to abandoning the narcotic." (Id., at p. 423.)
Mijares is distinguishable. In Mijares there was no evidence that the defendant had thrown the narcotics outfit into the field to prevent law enforcement officials from discovering it. No law enforcement official was present when the defendant took this action. The Mijares court emphasized that 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. [Citations.] We leave intact the rule that from such conduct 'it could be inferred that defendant at one time exercised physical dominion' over the narcotic. [Citation.]" (Id., at p. 422.)
Unlike the defendant in Mijares, appellant falls within the rule that the Mijares court left intact. Appellant testified that he had thrown the methamphetamine out the window in the hope that Officer Kasaba would not see it. "It has always been the rule under Mijares . . . that such a defense [momentary possession] does not extend to possession and control for the purpose of preventing imminent seizure by law enforcement. [Citations.]" (People v. Padilla (2002) 98 Cal.App.4th 127, 136-137; see also People v. Sonleitner (1986) 183 Cal.App.3d 364, 370 [Mijares does not apply where defendant momentarily possessed cocaine for the purpose of destroying it to prevent imminent seizure by law enforcement officials].)
At trial, the prosecutor's theory was based on appellant's actual possession of the methamphetamine while it was being transported in the Ford Mustang. It was not based on his aiding and abetting the other occupants of the vehicle in transporting methamphetamine that was exclusively in their possession. The jury was never given instructions on aiding and abetting. During closing argument, the prosecutor stated: "So when [appellant] has methamphetamine in his possession in that moving car, traveling . . . four[-]tenths of a mile perhaps, . . . that's transportation right there." "[Appellant] . . . possessed methamphetamine in a car that traveled over some distance that you've heard. According to the law . . ., that means he's guilty of transporting a controlled substance." "[T]he reasonable interpretation of the evidence in this case is that the methamphetamine in the car belonged to [appellant], and that he . . . did throw it out the window. He didn't want to get caught. It was his methamphetamine."
Thus, to prove appellant guilty of transporting methamphetamine, respondent had to prove that appellant possessed the methamphetamine. But the trial court had no sua sponte duty to give an instruction on momentary possession in addition to the standard instruction of CALCRIM No. 2305.
It is questionable whether the trial court was required to give CALCRIM No. 2305 even though appellant requested the instruction. The instruction was based on appellant's act of throwing the baggie containing methamphetamine out the window after the Ford Mustang had been stopped by Officer Kasaba. The prosecutor, however, made it clear to the jury that the transportation offense was based not on this act but rather on the transportation of methamphetamine in the Ford Mustang before it was stopped. CALCRIM No. 2305, therefore, appears to have been irrelevant to the transportation offense.
Appellant contends that, if the trial court did not have a sua sponte duty to so instruct, his counsel's failure to request such an instruction resulted in the denial of his right to the effective assistance of counsel. But under Mijares appellant was not entitled to an instruction in addition to CALCRIM No. 2305 even if his counsel had requested it. Appellant, therefore, was not denied the effective assistance of counsel.
Unanimity Instruction
"Where the jury receives evidence of more than one factual basis for a conviction, the prosecution must select one act to prove the offense, or the court must instruct the jury that it must unanimously agree on one particular act as the offense. [Citations.]" (People v. Jantz (2006) 137 Cal.App.4th 1283, 1292.) Appellant contends that his conviction of transportation of methamphetamine could have been based on any one of two separate acts. One act "was his transportation of the drugs found in the car, on the floormat, and, in the seat area." The other act was the transportation of the methamphetamine that appellant threw out the window. "His defense to the drugs found in the car was . . . that he did not know the drugs were present. . . . His defense to the other was 'momentary possession.' " Because there were two separate acts with separate defenses, appellant argues that the trial court was required to give a unanimity instruction sua sponte.
We disagree. "The unanimity instruction is not required where the criminal acts are so closely connected that they form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.]" (People v. Rae (2002) 102 Cal.App.4th 116, 122.) All of the methamphetamine was transported at the same time in the Ford Mustang. The acts underlying this transportation were so closely connected that they formed a single transaction. The transportation offense was based on the transportation of the methamphetamine in the Ford Mustang before it was stopped, not on appellant's act of throwing the baggie out the window after the vehicle was stopped.
We reject appellant's contention that the jury could have convicted him of transportation "on the theory that he moved the drugs inside the car to outside the car by throwing them out the window." This theory was never presented to the jury, and appellant maintains that "the movement was insufficient in and of itself to support a conviction." The prosecutor unequivocally told the jury that the transportation offense was based on the transportation of the methamphetamine while it was inside the Ford Mustang. Even if appellant's act of throwing the drugs out the window could have been a basis for the transportation conviction, that act and the transportation of the methamphetamine in the Ford Mustang were part of a continuous course of conduct.
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.