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Name: People v. Paz
Case #: G041327
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 02/10/2010

A defendant who disposes of contraband because of threat of bodily injury or of police apprehension cannot claim the defense of transitory possession. Appellant and another man were involved in altercation. The man placed appellant in a choke hold and told his girlfriend to call police. At that point appellant threw a small container under a nearby car. When police arrived, the man pointed out the item to police and they discovered it contained drugs. At appellant’s trial for possession of methamphetamine, his explanation was that he was buying drugs from the man, but then decided to steal them, so they got in a fight, and he discarded the drugs when the man began to choke him. Appellant argued on appeal that the court should have instructed sua sponte on the defense of transitory possession. The court reviewed the holding in People v. Mijares (1971) 6 Cal.3d 415, which established the defense, as well as subsequent case law and held it did not apply to these facts. Transitory possession can only be a defense where contraband is voluntarily disposed. Here appellant abandoned the drugs only when he was choked and when he knew the police were on the way. Moreover, appellant did not possess the drugs to dispose of them, as the law requires. Appellant’s attempt to steal the drugs shows he intended to keep them.