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Name: People v. Martin
Case #: S087880
Court: CA Supreme Court
District CalSup
Opinion Date: 07/02/2001
Subsequent History: None

In 1971, the Court held in People v. Mijares (1971) 6 Cal.3d 415, that under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it could constitute a defense for possession. In 1988, the appellate court in People v. Cole (1988) 202 Cal.App. 3d 1439 interpreted the decision in Mijares to hold that transitory possession for the sole purpose of disposal did not constitute unlawful possession. In this case, the Court granted review to clarify the nature and scope of the affirmative defense announced in Mijares. The Court held that the rationale and holding of Cole misconstrues the defense as devised in Mijares and disapproved Cole. Recognition of a “momentary possession” defense serves the public policy purpose of encouraging disposal of dangerous items. Mijares did not serve to negate an element of the offense, but instead offered a judicially created exception as a matter of public policy, similar to the defenses of entrapment and necessity. It applies only to momentary or transitory possession of contraband for the purpose of disposal. Here, however, appellant was not entitled to a Mijares instruction. As much as four hours had elapsed between the time appellant received the narcotics and the time he was arrested, and there was no indication that appellant made any attempt to dispose of the contraband prior to his arrest. Therefore, appellant’s conviction was affirmed.