People v. Poston CA2/5 ( 2021 )

Filed 11/19/21 P. v. Poston CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305105
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474074)
v.
ORDER MODIFYING
CASSIDY POSTON, OPINION
Defendant and Appellant. [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed on October 28, 2021, is
modified as follows: on page 8, in line 4, “1. Mijares” is deleted.
There is no change in judgment.
___________________________________________________________
BAKER, Acting P. J. MOOR, J. KIM, J.
Filed 10/28/21 P. v. Poston CA2/5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305105
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474074)
v.
CASSIDY POSTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Reversed.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Noah P. Hill,
Supervising Deputy Attorney General, and Nima Razfar, Deputy
Attorney General, for Plaintiff and Respondent.
After police made a U-turn to follow a car in which
defendant Cassidy Poston (defendant) was a passenger,
defendant’s friend tossed a gun into her lap. Defendant initially
“froze” and then opened her door and dropped the gun on the
ground—no later than 20 seconds after it first landed in her lap.
Officers recovered the gun, arrested defendant and the car’s two
other occupants, and the trial court (after a bench trial)
ultimately convicted defendant of two firearm possession
offenses. We consider whether the trial court properly rejected
defendant’s temporary possession defense. In particular, we
consider whether the trial court’s finding that defendant did not
voluntarily discard the weapon is supported by substantial
evidence and whether the trial court misunderstood the law in
alternatively concluding the defense is unavailable to a defendant
who seeks to prevent seizure of another person’s contraband.
I. BACKGROUND
A. The Evidence at Trial
Los Angeles Police Department (LAPD) Officer Brandon
Bolen testified that he and his partner, Officer Kumlander, were
on patrol near 8th Avenue and Slauson Avenue in the afternoon
of January 1, 2019. The officers drove a “dual purpose vehicle”
that had front-facing red and blue emergency lights behind the
windshield rather than on the roof. The vehicle was black and
white with the LAPD logo on both sides. Officer Kumlander was
driving and Officer Bolen rode in the passenger seat.
The officers noticed a black BMW heading in the opposite
direction with a paper license plate, a non-functioning headlight,
and tinted front windows. Officer Kumlander made a U-turn to
conduct a traffic stop, and the BMW “[took] off at a high rate of
2
speed and roll[ed] [a] stop sign.” By this time, Officer Kumlander
had not yet activated his emergency lights and siren. As the
pursuit continued, the BMW slowed in traffic and defendant
opened the front passenger door and dropped something on the
ground. Officer Bolen briefly exited his police vehicle and
retrieved the object: a handgun.1
After Officer Bolen picked up the gun, Officer Kumlander
activated the car’s lights and siren. They called for backup and,
about ten minutes into the pursuit, a police car with an
“overhead light bar” (as opposed to the “forward-facing”
emergency lights in the vehicle Officers Kumlander and Bolen
were driving) took over as the lead pursuit vehicle. Officers
Kumlander and Bolen continued to participate in the pursuit,
which ended a few minutes later in a multi-car collision. All
three occupants of the car were arrested.
Both defendant and the driver of the car, Jarika Donner
(Donner), testified at trial. Defendant had recently purchased
the BMW and took possession of it only a few days earlier.
Donner was driving because “[s]he has better . . . vision.”
Defendant testified that she and Donner were “look[ing] for
something to eat” when defendant’s friend, a male juvenile
identified only as “Johnson,” asked her to pick him up. They did
so and continued looking for something to eat.
Defendant testified she saw Officers Kumlander and Bolen
driving in the opposite direction and realized they were behind
1
Video footage from Officer Bolen’s body-worn camera and
Officer Kumlander and Bolen’s vehicle was admitted into
evidence. The body-worn video shows Officer Bolen taking a
couple steps out of the vehicle to pick the gun up from the street.
The gun is seen in the roadway between the police vehicle and
other vehicles parked along the curb.
3
the BMW when Donner rolled through a stop sign and began to
accelerate. After defendant turned and saw the police car,
Johnson told Donner to keep going and tossed a gun into
defendant’s lap. Defendant had never seen Johnson with a gun
before, and she did not know he had a gun until that moment.
Defendant “froze” when the gun landed in her lap. She
testified that she “took . . . a second” to pick up the gun “because
[she] didn’t want to touch it.” Johnson told her to throw it out of
the car, and that is what she did. The gun was in defendant’s lap
for “[p]robably no more than 20 seconds.” When the prosecution
asked why she discarded the gun, defendant responded, “Because
why would I want a loaded firearm sitting on my lap?” When
asked why she threw it from the car as Johnson directed,
defendant responded, “What else was I going to do with it?”
Donner testified she saw Johnson toss the gun into
defendant’s lap when the officers made a U-turn. Donner heard
Johnson “order[ ]” defendant to discard the gun as he threw it
into her lap. After rolling through a stop sign to evade the
officers, Donner slowed in traffic and defendant discarded the
gun.
The gun that Officer Bolen recovered was loaded. It was
not registered to defendant and it had been reported stolen in
San Bernardino County a couple months earlier.
Defendant was charged with carrying a concealed, loaded,
and unregistered firearm in a vehicle (Pen. Code,2 § 25400, subds.
(a)(1), (c)(6)) and carrying a loaded, stolen firearm in public
(§ 25850, subds. (a), (c)(2)).
2
Undesignated statutory references that follow are to the
Penal Code.
4
B. The Trial Court’s Verdict and Sentencing
At the conclusion of defendant’s bench trial, her attorney
argued defendant should be found not guilty because she
established the defense of temporary possession. The prosecution
maintained she could not rely on such a defense because, in its
view, a Court of Appeal case (People v. Paz (2010) 181
Cal.App.4th 1413 (Paz)) “specifically says that if you’re going to
get rid of it to get away from the police or for some other limited
reasons, that you cannot claim that you had temporary control of
the contraband or the firearm.”
After a several-day pause in the proceedings to “take a look
at a few things,” the trial court relied on CALCRIM No. 2305,
which sets forth the elements of such a defense in the context of
narcotics offenses, for guidance. As stated by CALCRIM No.
2305, a defendant must prove she possessed the controlled
substance for a momentary or transitory period; the possession
occurred in order to abandon, dispose of, or destroy the
substance; and the defendant did not intend to prevent law
enforcement officials from obtaining the controlled substance.
(CALCRIM No. 2510, which defines the elements of this defense
in the context of possession of a firearm by a prohibited person, is
substantially similar.) The trial court also reviewed several cases
discussing the temporary possession defense, including the Paz
case cited by the prosecution.
The trial court then explained how it viewed the evidence
“against this legal background.” In the court’s words: “I have
assessed the facts of our case to determine if defendant has
carried her burden of proof establishing the application of the
subject offense. In doing so, the court will analyze the facts solely
through the very testimony of [defendant].”
5
Even viewed solely through the lens of defendant’s own
account of what happened, the court found the temporary
possession defense did not apply for two reasons. First, the court
found defendant did not voluntarily dispose of the firearm
because “[t]he evidence establishes that [defendant] disposed of
the gun only after . . . Johnson told her to get rid of it.” Second,
and apparently in the alternative, the trial court found defendant
could not rely on a temporary possession defense because she
“intended to prevent law enforcement from obtaining the firearm.
It was either that, or she would simply have exited the car and
thrown it towards the police vehicle or given the firearm to the
police. That sounds ridiculous, but that’s what the law says. She
did not exit the car and present it to the police as opposed to
intending to prevent law enforcement from obtaining the
firearm.”
Having rejected defendant’s temporary possession defense,
the trial court found defendant guilty on both charges and
sentenced her to three years in prison pursuant to section 25850,
subdivision (c)(2).3 The trial court further found defendant
committed these offenses while released on bail or on her own
recognizance in three other cases and imposed, consecutively,
three two-year enhancements pursuant to section 12022.1. The
total aggregate sentence was accordingly nine years in prison.
3
The trial court found Donner guilty of violating Vehicle
Code section 2800.2, which prohibits driving in willful or wanton
disregard for safety of persons or property while fleeing from
pursuing police officers.
6
II. DISCUSSION
California courts recognize temporary possession for
purposes of disposal as a defense to unlawful possession of
narcotics and firearms. (People v. Mijares (1971) 6 Cal.3d 415,
421-424 (Mijares) [articulating defense in narcotics context];
People v. Martin (2001) 25 Cal.4th 1180, 1191 (Martin) [firearms
context].) Here, defendant’s prompt disposal of a gun tossed into
her lap at the outset of a police pursuit falls squarely within the
underlying policy “of encouraging disposal and discouraging
retention of dangerous items such as controlled substances and
firearms.” (Martin, supra, at 1191.) The trial court’s verdict,
which we shall reverse, rests on evidentiary and legal
misunderstandings.
First, the evidence. The trial court correctly read precedent
to require a defendant’s disposal of contraband must be voluntary
to make out a temporary possession defense; a defendant who
otherwise would have maintained possession of contraband
cannot assert a temporary possession defense simply because
another party compelled him or her to relinquish it. In this case,
however, substantial evidence does not support the implicit
inference drawn by the trial court, i.e., that defendant did not
voluntarily dispose of the firearm because she would have
maintained possession of the gun but for Johnson telling her to
discard it.
Second, the law. In suggesting defendant should “simply
have exited the car and thrown [the gun] towards the police,” the
trial court misunderstood what Mijares requires to establish the
defense. A defendant disposing of someone else’s contraband
need not do so by surrendering it to police. For purposes of a
temporary possession defense on facts like the facts here, fleeting
7
possession for disposal is sufficient even if done with the police
bearing down on the disposing defendant.
A. Overview of the Temporary Possession Defense
1. Mijares
Our Supreme Court first recognized the temporary
possession defense in Mijares.4 The defendant, who was
convicted of possession of heroin, contended his possession was
limited to removing heroin and related paraphernalia from an
unconscious, overdosing friend’s pockets and throwing the
contraband into a field before driving the friend to a fire station
for help. (Mijares, supra, 6 Cal.3d at 418-419.) A witness
observed the defendant dispose of the contraband, and it was
recovered without assistance from the defendant. (Id. at 418.)
The Supreme Court held the jury should have been
instructed that if it believed the defendant “had no contact with
the narcotic other than to remove it from [his friend’s] pocket for
the purpose of disposal,” it should find him not guilty. (Mijares,
supra, 6 Cal.3d at 419.) The Supreme Court reasoned that
allowing a conviction to rest on these facts “could result in
manifest injustice to admittedly innocent individuals.” (Id. at
422.) To illustrate, the Court considered a hypothetical scenario
in which a witness who saw the defendant dispose of the
contraband “briefly picked up the package and identified the
substance as heroin and then placed the outfit back on the
ground.” (Ibid.) The Court held it could not “read the possession
4
This defense “has been alternately described as the
‘temporary possession defense,’ the ‘momentary possession
defense,’ the ‘transitory possession defense,’ and the ‘disposal
defense.’ [Citations.]” (Martin, supra, 25 Cal.4th at 1185, fn. 5.)
8
statutes to authorize convictions under such guileless
circumstances.” (Ibid.)
Recognizing Mijares’s circumstances were not entirely
guileless—his presumed motive for removing contraband from his
unconscious friend’s pockets was to protect the friend from a
potential possession charge—the Supreme Court emphasized
that “certain actions relating to abandonment of narcotics
may . . . fall within the proscription of section 135 of the Penal
Code, forbidding the destruction or concealment of evidence.”
(Mijares, supra, 6 Cal.3d at 422.) Nonetheless, “[t]he logic is
inescapable and the rule is well-settled that actual abandonment
of an object terminates possession thereof. [Citations.] It would
be incongruous to adhere to cases declaring that abandonment
concludes an existing narcotic possession and then hold that
during the brief moment involved in abandoning the narcotic, a
sufficient possession which did not previously exist somehow
comes into being to support a conviction for possession of
contraband.” (Ibid.)
Our Supreme Court in Mijares made clear that the
temporary possession defense is available to defendants disposing
of other people’s contraband when seizure is imminent. Indeed,
three of the cases from which the Supreme Court derived the
defense involved precisely those facts. (Mijares, supra, 6 Cal.3d
at 420-421.) In Garland v. State (Miss. 1933) 146 So. 637(Garland), the Supreme Court of Mississippi reversed a woman’s
conviction for possession of an intoxicating liquor based on her
smashing her husband’s jug of whiskey as police raided their
home. (Id. at 138-140.) Our Supreme Court analogized the
conduct of the defendant in Mijares to that of the defendant in
Garland, who took possession of the jug “for the sole purpose of
9
putting an end to the unlawful possession of” another. (Mijares,
supra, 6 Cal.3d at 420.) In People v. Landry (1951) 106
Cal.App.2d 8 (Landry), the defendant nightclub owner attempted
to flush narcotics down a toilet “just before . . . officers entered
the building.” (Landry, supra, at 10.) Our Supreme Court read
Landry to suggest that “had the defendant made a better offer of
proof to demonstrate the possibility that a third person had in
fact planted the drugs, his handling solely for the purpose of
flushing the heroin down the toilet would have been insufficient
for conviction of possession.” (Mijares, supra, at 421.) In
Jennings v. Superior Court (1967) 66 Cal.2d 867 (Jennings), the
defendant ran and threw a “narcotics injection kit” over a fence
when he saw police officers approaching. (Jennings, supra, at
871.) As summarized in Mijares, the Supreme Court in Jennings
“granted a writ directing the magistrate to permit [the]
defendant, as a defense to possession, to introduce evidence
concerning the fleeting purpose of his taking the narcotics outfit
and casting it over the fence.” (Mijares, supra, at 421.)
Although our Supreme Court held in Mijares that a third
party’s disposal of evidence that frustrates discovery by the
authorities does not foreclose a temporary possession defense,5
the Supreme Court also observed, understandably, that the
temporary possession defense “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.” (Mijares, supra, 6 Cal.3d at
422.) In context (including the cases just reviewed), the Supreme
5
By “third party,” we mean someone other than the party
who is initially in possession of contraband that is later
transitorily possessed by another disposing of it.
10
Court’s remark concerning individuals fearing imminent
apprehension underscores the defense is obviously unavailable to
persons who are already in possession of contraband and decide
to discard it as law enforcement closes in. (See, e.g., People v.
Groom (1964) 60 Cal.2d 694 [the defendant’s disposal of
marijuana as police drew near established his dominion and
control over the drug as well as his knowledge of its illicit
character]; People v. Perez (1963) 213 Cal.App.2d 436, 440 [the
defendant’s “attempt to get rid of the narcotic establishes not only
his knowledge and control of the contraband but also his
awareness of its illicit character”]; People v. Rodrigues (1938) 25
Cal.App.2d 393, 393 [“Here the facts fully justify the inference
that appellant was in possession of so much of the drug as he
threw out of the window, and that is sufficient to sustain the
judgment”].)
Following Mijares, temporary possession was first
recognized as a defense to offenses relating to possession of a
firearm, just like narcotics possession offenses, in People v.
Hurtado (1996) 47 Cal.App.4th 805 (Hurtado). In a later case,
Martin, our Supreme Court approved of Hurtado’s extension of
the defense to firearms cases. (Martin, supra, 25 Cal.4th at 1191[“We agree with the Hurtado court that 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”].)
The Martin case was followed by the Court of Appeal’s
decision in Paz, supra, 181 Cal.App.4th 1413. Paz holds that
fleeting possession alone is insufficient to support a temporary
possession defense. (Id. at 1417 [“No case that we have found
11
suggests that transitory possession cannot be punished on the
basis of its brevity alone”].) In its discussion of what more is
required, Paz explained that the disposal must be “voluntary.”
(Id. at 1416.) Specifically, the defendant in Paz was convicted,
among other things, of possession of methamphetamine for sale.
(Id. at 1415.) The evidence at trial indicated the defendant came
into possession of a small container of methamphetamine and
then discarded it during a fight with another person who had the
defendant in a chokehold and was directing a bystander to call
the police. (Id. at 1415, 1417.) The Court of Appeal held these
facts did not support a temporary possession defense for two
reasons: there was no evidence the defendant took possession of
the drugs to dispose of them (“he possessed [them] with every
intention of keeping [them] for himself”) and there was no
evidence that he discarded them “for any reason other than to
avoid strangulation or arrest.” (Id. at 1417.) Under these
circumstances, the defendant was no more entitled to the
temporary possession defense than “a mugger, chased by police
into a cul-de-sac, [who] threw down the victim’s wallet.” (Ibid.)
B. No Substantial Evidence Supports the Trial Court’s
Conclusion that Defendant’s Disposal of the Firearm
Was Involuntary
The trial court was clear that it was accepting defendant’s
testimony as true in rendering its verdict. That testimony, in our
view, establishes both elements of a temporary possession
defense: (1) she possessed the gun for no longer than 20 seconds
and, for at least some of this time, she was “froze[n]” with the gun
sitting where it landed in her lap, and (2) she did not want the
12
gun in her lap, and when she eventually picked it up, she did so
solely to dispose of it.
In finding that defendant did not voluntarily discard the
gun, the trial court focused on her testimony that she did so only
after Johnson directed (or, in Donner’s words, ordered) her to do
so. This is not substantial evidence that defendant’s actions were
involuntary, however, because Johnson’s “order” corresponded
with defendant’s own purpose in handling the gun, namely, to get
rid of it; as she put it, “What else was [she] going to do with it?”
In finding otherwise, the trial court appears to have erroneously
construed defendant’s initial reluctance to touch the gun, which
gave Johnson time to speak up, as reluctance to dispose of it.
This case is therefore unlike Paz where there were external
forces overcoming the defendant’s desire to maintain control of
contraband. Here, there is no evidence, like there was in Paz,
that defendant had “every intention of keeping [the gun] for
[her]self.”6 (Paz, supra, 181 Cal.App.4th at 1417.) There is no
reason to believe, for example, that defendant did as Johnson
said because she feared him; he was her friend and, at the
relevant moment, she was armed and he was not. Put simply,
Johnson ordering defendant to do what she would have otherwise
done does not establish what she did was involuntary.
6
In arguing the contrary, the Attorney General relies on
Officer Bolen’s testimony and the dash camera video footage.
Neither, however, can illuminate what happened in the car
before defendant disposed of the firearm. Put differently, the
officer’s testimony and the video recording cannot as a logical
matter suggest defendant possessed the gun in a manner other
than the temporary manner in which she testified—testimony
the trial court accepted.
13
C. The Trial Court’s Alternative Rationale
Misunderstands What Must Be Proven to Establish
Temporary Possession
The trial court’s alternative ruling that defendant’s
temporary possession defense fails because she intended to
prevent the police from obtaining the gun has no basis in the
governing case law. The possibility that defendant might have
disposed of the gun in a more direct or conspicuous manner might
conceivably bear on her credibility as to how long she possessed
the gun and her purpose in discarding it,7 but it does not preclude
a temporary possession defense.
The Supreme Court in Mijares did not inquire as to why
the defendant threw his unconscious friend’s heroin stash into a
field rather than surrendering it at the fire station where he
sought help. Further, as we have discussed, the Supreme Court
derived the defense from a line of cases including Garland,
Landry, and Jennings, that involved the intentional destruction
of contraband during police raids. A defendant’s intent to
prevent law enforcement from obtaining contraband ordinarily
bars a temporary possession defense only when the defendant
previously possessed the contraband for purposes other than
disposal.8 That condition was not satisfied when the defendant in
7
Although the trial court did not question defendant’s
credibility in its analysis of her temporary possession defense, the
fact that the officers were able to recover the gun without
breaking off the pursuit is consistent with her testimony that she
only wanted to dispose of it as quickly as possible.
8
Defendant was not charged with destroying or concealing
evidence and we therefore do not reach the question of whether or
14
Mijares sought to protect his overdosing friend from a possession
charge, and it is not satisfied in this case by defendant’s disposal
of a gun that landed unannounced and uninvited in her lap at the
outset of a police pursuit. Regardless of whether defendant
hoped the pursuing officers would not notice her drop the gun,
the crucial facts are that she possessed the gun only briefly and
for the sole purpose (once put in the position by Johnson) of
dropping it out of the car.
The trial court seems to have apprehended the rather
absurd result its understanding of the law would require—
conceding its suggestion that defendant should “simply have
exited the car and thrown it towards the police” was “ridiculous.”
Our Supreme Court’s development of the temporary possession
defense does not compel such a result that would run contrary to
weighty policy concerns. Specifically, in Martin, our Supreme
Court emphasized that the temporary possession defense
furthers the important policy of encouraging disposal of
dangerous items such as controlled substances and firearms.
(Martin, supra, 25 Cal.4th at 1191.) The trial court’s belief that
defendant must have leapt out of the BMW with gun in hand and
quickly motioned to toss the gun in the direction of pursuing
officers would require a course of conduct likely to have been
more dangerous to herself, the police, and her friends than
disposing of the gun in the manner which she did. We believe no
such course of conduct was required to establish temporary
possession barring conviction, as it would undercut the very
public policy that the temporary possession defense is designed to
further.
when such a conviction could be had in circumstances indicative
of temporary possession.
15
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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