Filed 9/15/15 P. v. Wallace CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DAVID NELSON WALLACE, Defendant and Appellant. H040770 (Santa Clara County Super. Ct. No. C1360483)

I. INTRODUCTION Defendant David Nelson Wallace appeals after a jury convicted him of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court found true allegations that defendant had two prior convictions that qualified as “strikes” (§§ 667, subds. (b)

- (i), 1170.12) and an allegation that defendant had served one prior prison term (§ 667.5, subd. (b)). At the sentencing hearing, the trial court dismissed one
of the strikes and struck the prior prison term allegation, imposing a 32

- month sentence. On appeal, defendant contends the trial court gave an erroneous instruction on the defense of transitory possession. (See People v. Martin (2001) 25 Cal.4th 1180, 1182 ( M artin ); People v. Mijares (1971) 6 Cal.3d 415 , 422 ( Mijares ).) Defendant also requests that this court independently examine the in camera proceedings related to his
Pitchess motion ( Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ) ).
For the re asons explained below, we will affirm the judgment.2 II. BACKGROUND
A. Defendant’s Arrest At about 3:47 p.m. on June 28, 2013, Santa Clara County Sheriff’s Deputy Joseph Piazza was on patrol, driving his police vehicle. He saw defendant riding his bicycle . After he passed defendant, Deputy Piazza saw defendant stop abruptly. Defendant appeared to be adjusting his bicycle. Deputy Piazza parked and got out of his vehicle in order to see if defendant needed any assistance. Defendant told Deputy Piazza
tha t he did not need any help. Defendant then began rummaging through a laundry bag that he had been carrying. Defendant’s hands were shaking, and he told the deputy he

was nervous. Deputy Piazza asked defendant for identification, which defendant provided

. Deputy Piazza then asked defendant if he had anything illegal on him. Defendant said,
“I have some meth[amphetamine] and my girlfriend’s pills in my pocket.” Deputy Piazza searched defendant, finding a baggie of methamphetamine and a separate baggie

c ontaining seven oval pills. Both baggies were in defendant’s front pocket. The methamphetamine weighed 5.07 grams and the pills were metronidazole, which is used

to treat bacterial infections and is not a controlled substance.
B. Defendant’s Trial Testim ony At the time of the incident, defendant lived with Jessie Rowan, a paraplegic; he was Rowan’s boyfriend and also her caretaker. On the day of his arrest, defendant had been helping Rowan to clean up and organize her “clutter.” Defendant found the pills and the methamphetamine buried in a bin of clothing. Rowan told defendant that she wanted to get rid of the pills. Defendant decided not to throw the methamphetamine or pills away at the house because he did not want those item s there. 1

1 Defendant was asked if he decided not to dispose of the items at the house because he was afraid that Rowan would use the pills and methamphetamine. He (continued)3

When he was contacted by Deputy Piazza, defendant was in the process of going to City Team Ministries, where he planned to donate the items in the bag. Defendant was also intending to “get rid of some personal things that [he] found.” Defendan t had been riding the bicycle for about seven minutes prior to his contact with Deputy Piazza. Defendant had explained to the deputy that he was “getting rid of some medication and stuff that [Rowan] had and some donation clothes.”
C. Trial Proceedings
A jury found defendant guilty, as charged, of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Defendant waived jury trial as to allegations that he had two prior convictions that qualified as “strikes” (§§ 667, subds. (b)

- (i),
117 0.12) and an allegation that he had served one prior prison term (§ 667.5, subd. (b)), and the trial court found those allegations true. At the sentencing hearing, the trial court dismissed one of the strikes and struck the prior prison term allegation, a nd it imposed

a 32

- month sentence.

III. DISCUSSION
A. Instruction on Transitory Possession Defense Defendant contends the trial court erred by instructing the jury on the defense of transitory possession with CALJIC No. 12.06 rather than with CALCRIM No. 2305.
Defendant contends that CALJIC No. 12.06 contains an additional element that is not required by Mijares , supra, 6 Cal.3d 415 , the California Supreme Court case establishing that transitory possession may be a defense to possession of a controlled su bstance. Defendant contends the error violated his federal constitutional right to due process.

responded, “Well, you know, she sa[id] she didn’t use it, and I don’t use, you know, so why keep stuff around that neith er one of us mess around with.”4 1. Instruction Given The trial court instructed the jury on transitory possession pursuant to CALJIC
No. 12.06 (Spring 2011 Rev. ) , as follows:

“ A person is n ot guilty of a crime when his possessi on of a controlled substance is
shown to be lawful. The defendant has the burden of proving by a preponderance of the evidence all the facts necessary to establish that his possession of the controlled
substance is la wful.

“ The possession of [ a ] controlled substance is lawful where all of the following
conditions are met: “One, t he possession is momentary and is not based on either ownership or the right to exercise control over the controlled substance ; “Two, the controlled substance is possessed solely for the purpose of abandonment, disposal or destruction; “Three, t he controlled substance is possessed with the purpose of terminating the unlawful possession of it by another person or preventing another person fr om acquiring possession of it; and “Four, co ntrol is not exercised over the controlled substance for the purpose of preventing its immin ent seizure by law enforcement.” 2 (Italics added.)

2 All of the jury instructions in this case were from CALJIC rather than CALCRIM. Although the CALCRIM instructions “ are the official instructions for use in the state of California” and use of those inst ructions is “strongly encouraged” (Cal. Rules of Court, rule 2.1050(a)&(e)), this “ does not establish that the prior CALJIC instructions were constitutionally defective.” ( People v. Lucas (2014) 60 Cal.4th 153, 294 , disapproved on other ground in People v . Romero and Self ( Aug. 27, 2015, S055856)

__ Cal.4th __ [ 2015 Cal. LEXIS 5759] .) “ ‘ Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Council’ s adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. ’ [Citation.]” ( Ibid. )5

Defendant challenges the italicized portion of the instruction, cl aiming that in order for the transitory possession defense to apply, California law does not require a defendant to prove his or her possession was “ not based on either ownership or the right
to exercise control over the controlled substance .”

2. Forfeitur e The Attorney General contends that defendant forfeited this claim because he
did not object below. Defendant contends that the instruction was an incorrect statement of the law, and that the instructional error affect ed his substantial rights , such tha t his failure to object in the trial court did not result in forfeiture of this claim on appeal

. ( See People v. Hudson (2006) 38 Cal.4th 1002, 1012 [forfeiture rule does not apply when “the trial court gives an instruction that is an incorrect statement o f the law”]; Pen. Code, § 1259 [“The appellate court may .

. . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].)
If defenda nt is correct that the instruction was incorrect because it added an erroneous element to the transitory possession defense, his substantial rights would be affected. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503 .) Thus, we will review
the merits o f defendant’s claim.

3. Legal Background
In Mijares , supra, 6 Cal.3d 415 , t he question presented wa s “ whether the act of handling a narcotic for the sole p urpose of disposal constitutes ‘possession’ ” within the meaning of a statute prohibiting possession of a controlled substance

. ( Id. at p. 417.) The defendant had been observed throwing a wrapped object, which contained heroin, from a car. The defendant testified at trial that he had been driving with a companion who appeared to be overdosing. He had removed the heroin from his comp anion’s pocket and thrown it out of the car before taking his companion for emergency medical treatment. ( I

d. at p. 419.) On appeal, the defendant argued that “t he jury should have6

been instructed that if it believed he did not himself use heroin on the day in question or handle it in furnishing narcotics to [his companion] but instead had no contact with the
narcotic other than to remove it from [his companion’s] pocket for the purpose of disposal, such handling is insufficient for conviction of the crim e of possession .” ( Ibid .) The California Supreme Court agreed. The court explained that “[i] n a literal sense, defendant here physically controlled the narcotic when he removed it from the pockets of [his companion] and threw it away,” but that such con duct was not “ includ ed within the ‘dominion and control’ test of possession. ” ( Id. at p. 421 .) The California Supreme Court revisited the transitory possession defense in
Martin , supra, 25 Cal.4th 1180 , where the court rejected the defendant’s claim that the defense “ ‘ is not limited to possession for “brief moments” only. ’ [Citation.]” ( Id. at
p. 1182.) The Martin court reaffirmed “ that the defense of transitory possession devised
in Mijares applies only to momentary or transitory possession of contra ba nd for the purpose of disposal.” ( Id. at p. 1191.) The Martin court further explained: “ ‘ When a
defendant relies on the Mijares defense, he or she essentially admits the commission of the offense of simple possession of narcotics: The defendant exer cised control over the narcotics, he or she knew of its nature and presence, and possessed a usable amount. [Citation.] However, the defendant additionally asserts that he or she possessed the narcotics for the limited purpose of disposal, abandonment, o r destruction. Mijares does not serve to negate an element of the offense of possession of narcotics. Instead, it offers a judicially created exception of lawful possession under certain specific circumstances as a matter of public policy, similar to the defens es of entrapment and necessity.’ ” ( Ibid. )
4. Analysis Defendant contends that no legal authority supports the requirement, in CALJIC
No. 12.06, that in order for the transitory possession defense to apply, the jury must find that a defendant’s possession “ is not based on either ownership or the right to exercise7

control over the controlled substance .” Defendant points out that this element is not
contained in CALCRIM No. 2305. 3 Based upon our reading of Mijares and Martin , we conclude that the instruction given here was correct insofar as it required defendant to prove that his possession of the methamphetamine was “ not based on

. . . ownership .” Ownership of a controlled substance would be inconsistent with a “ momentary or transitory possessi on of contraband for the purpose of disposal ,” which is required in order for the defense to apply. ( Martin , supra, 25 Cal.4th at p. 1191 .) On the other hand, a “ momentary or transitory possession of contraband for the purpose of disposal ” ( ibid. ) is not necessarily inconsistent with “ the right to exercise control over the controlled substance .” As explained in Martin, a defendant who is rel ying on the Mijares defense “ ‘ essentially admits the commission of the offense of simple possession of narcotics ,’ ” including the fact that he or she “ ‘ exerc ised control over the narcotics.’ ” ( Ibid. ) A defendant may have the right to exercise control over an item during the brief period in which he or she possesses the item for purposes of disposal. However, eve n assuming that the instruction was erroneous because it required defendant to prove that he did not have the right to exercise control over the

3 CALCRIM No. 2305 provides: “ If you conclude that the defendant possessed <insert name of controlled substance> , that possession was not illeg al 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 <insert name of controlled substance> only for a momentary or transitory period; [¶] 2

. The defendant possessed <insert name of controlled substance> in order to (abandon[,]/ [or] dispose of[,]/ [or] destroy) it; [¶] AND [¶] 3

. The defendant did not intend to prevent law enforcement officials from obtaining the <insert name of controlle d substance>

. [¶] 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 d efendant must prove that it is more likely than not that each of the three listed items is true. ”8

methamphetamine, defendant was not prejudiced thereby, because on the facts of this case, he was not entitled t o an instruction on the Mijares defense. The facts of the instant case are closely analogous to People v. Sullivan (1989)
215 Cal.App.3d 1446 ( Sullivan ), which was expressly approved by the California Supreme Court in Martin, supra, 25 Cal.4th at page 1190. In Sullivan, the police stopped the defendant for traffic violations a quarter of a mile from his house. ( Sullivan, supra,

at p. 14 50 .) The defendant’s car contained methamphetamine manufacturing materials,
and a search of his person revealed that he was carrying 6.7 grams of methamphetamine. ( Id. at p. 1449. ) More methamphetamine manufacturing materials were found in a shed located on the defendant’s property. According to the defendant, the methamphetamine and methamphetami ne manufacturing materials belonged to someone who had been renting the shed from the defendant’s girlfriend. Upon finding the materials, the defendant had decided to take them to an industrial park and dispose of them in a dumpster. ( I

bi d .) On appeal f

rom his convictions, which included possession for sale of methamphetamine and manufacturing of methamphetamine, the Sullivan defendant contended that he was entitled to an instruction on the defense of momentary or transitory possession. The court reject ed the claim, explaining that the defendant’s “own version of
the facts show he made a conscious decision to exercise control and dominion over the methamphetamine for an extended period of time.” ( Sullivan, supra, 215 Cal.App.3d at

p. 1453.) The defenda nt had not taken “merely momentary possession of the methamphetamine while disposing of it, e.g., his possession was not limited to handling the methamphetamine for the few moments it would take to carry it into the house and flush it down the toilet.” ( I bid .) The court found it significant that the defendant had kept the methamphetamine “separate from the chemicals and equipment,” that when stopped by the deputy, he “did not attempt to turn the methamphetamine over to the9

police,” and that he had put the methamphetamine in his pocket “to conceal it from the deputy and to retain possession of it.” ( Ibid .) Here, defendant’s “own version of the facts show he made a conscious decision

to exercise control and dominion over the methamphetamine for an extended period of time.” ( Sullivan, supra, 215 Cal.App.3d at p. 1453.) Defendant testified that he had been riding his bicycle for about seven minutes while carrying the methamphetamine in his pocket. The defense also introduced into evidence a map showing tha t defendant traveled a substantial distance of many blocks while possessing the controlled substance. This evidence about the time and distance of defendant’s travel was inconsistent with defendant taking “merely momentary possession of the methamphetamin e while disposing of it

. ” ( Ibid .) As in Sullivan, defendant’s possession was “not limited to handling the methamphetamine for the few moments it would take to carry it into the [bathroom] and flush it down the toilet. ” ( Ibid .) Moreov er, when defendant produced
the methamphetamine, he did not tell Deputy Piazza that he was planning to dispose of it
and he “did not attempt to turn the met hamphetamine over to the police. ” ( Ibid. ) Finally,
as in Sullivan, defendant had placed the methamphetamine in his po cket, “ separate from ” the other items that he was carrying to the donation center. ( Ibid .) In sum, t he facts of this case failed to support a n instruction on the transitory possession defense. Thus, defendant could not possibly have been prejudiced by t he instruction as given.
B. Review of In Camera Proceedings Defendant requests that this court independently examine the in camera proceedings related to his Pitchess motion

. ( See Pitchess , supra, 11 Cal.3d 531 .) The Attorney General does not oppose this request.

1. Proceedings Below Prior to trial, defendant filed a Pitchess motion seeking discovery of personnel records for Deputy Piazza and a second deputy who had assisted in defendant’s arrest.10

At the hearing on defendant’s Pitchess motion, defen dant’s trial counsel specified that the motion related to defendant’s claims that the encounter was not consensual and that he was stopped without reasonable suspicion or probable cause. The trial court found that defendant established good cause for disc overy of relevant materials as to both officers. The trial court conducted an in camera hearing with the custodian of records, but it found that there were no discoverable materials in the officers’ files.

2. Relevant Legal Principles
In Pitchess , the Ca lifornia Supreme Court held that a criminal defendant is entitled to discovery of officer personnel records if the information contained in the records is relevant to his or her ability to defend against the charge. ( Pitchess, supra, at pp. 536

- 537.)
The California Supreme Court detailed the procedure to be followed in connecti on with a Pitchess motion in People v. Mooc (2001) 26 Cal.4th 1216 ( Mooc ). A fter the
defendant files his or her Pitchess motion, “[i]f the trial court concludes the defendant has
f ulfilled [the statutory] prerequisites and made a showing of good cause, the custodian of records should bring to court all documents ‘potenti ally relevant’ to the defendant’ s motion. [Citation.] The trial court ‘shall exam ine the information in chambers ’ (Evid. Code, § 1045, subd. (b)), ‘out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present’ ( id., § 915, subd. (b); see id., § 1045, subd. (b) [incorporating id., § 915]). Subject to statutory exceptions and limitations .

. . the trial court should then disclose to the defendant ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ ( Id., § 104 5, subd. (a).)” ( Mooc, supra, at p. 1226.)
It is essential that the trial court make a record of the particular files, records, or documents produced by the custodian for the court’ s review. ( Mooc, supra, 26 Cal.4th

at p. 1228.) There should be a court reporter present to document any statements by the custodian, as well as any questions by th e trial court and the custodian’ s responses.11

( Id. at p. 1229.) “The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review.

. . . Without some record of the documents exami ned by the trial court, a party’ s ability to obtain appe llate review of the trial court’ s decision .

. . would be
nonexistent. Of course, to protect the officer’ s privacy, the examination of documents and questioning of the custodian should be done in camera in accordance with the requirements of Evidence Code section 915, and the transcript of the in camera hearing and all copies of the do cuments should be sealed. [Citation.]” ( Id. at pp. 1229

- 1230,
fn. omitted.)
3. Review of the In Camera Hearing Transcript
We have independent ly reviewed the sealed reporter’ s transcript of the in camera hearing regarding the Pitchess discovery of the of ficer’ s personnel records. The record is sufficient to permit appellate review , and we conclude the trial court properly exercised its discretion in denying discovery.

IV. DISPOSITION The judgment is affirmed.___________________________________________ B AMATTRE

- MANOUKIAN, ACTING P. J.

WE CONCUR:

__________________________ M IHA R A , J.

__________________________ GROVER, J.