Filed 9/30/16 P. v. Espudo 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                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                           SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                                  H042639
                                                                            (Santa Cruz County
          Plaintiff and Respondent,                                          Super. Ct. No. F28335)

          v.

ANTHONY DAVID ESPUDO,

          Defendant and Appellant.


          Defendant Anthony David Espudo was convicted by a jury of a count of simple
possession of controlled substances in jail (Pen. Code, § 4573.6).1 The trial court
suspended imposition of sentence and placed him on probation for three years subject to
various terms and conditions. On appeal, defendant argues the court erred when it failed
to instruct the jury with the defense of transitory possession and the lesser included
offense of simple possession. We find no error and affirm the judgment.
                                                         BACKGROUND
     1. The Information
          On May 4, 2015, defendant was charged by information with a count of bringing
controlled substances into a jail in violation of section 4573. Defendant pleaded not
guilty to the offense. On June 26, 2015, the prosecution amended the information,
reducing the count of bringing drugs into a jail to a lesser charge of simple possession of
controlled substances in jail (§ 4573.6).
          1
              Unspecified statutory references are to the Penal Code.
   2. The Evidence at Trial
       On March 7, 2015, Santa Cruz Police Officer Erich Hoppe was assigned to the
Neighborhood Enforcement Team. At around 10:30 p.m., Hoppe was investigating
suspected drug activity at a residence located at 356-A Ocean Street. When he arrived at
the house, Hoppe observed indications of drug use, including used hypodermic needles,
used drug packaging, small metal cookers used to heat heroin for ingestion, and at least
one glass methamphetamine pipe. There were approximately five to six individuals at the
house, including defendant. Hoppe arrested defendant, walked defendant to his patrol
car, conducted a pat search, and emptied out defendant’s pockets. Hoppe then placed
defendant in the rear of his patrol car and transported him to jail. Hoppe’s patrol car had
a divider between the front passenger compartment and the rear, and the back seat was a
hard plastic molded seat with no openings. There was no contraband in the back seat
before and after defendant was in the car.
       After arriving at the jail, Officer Hoppe completed defendant’s booking
paperwork, searched defendant again, and asked him if he was holding anything he
should not have such as contraband. When searching individuals being taken inside the
jail, Hoppe explained that he typically checks the individual’s pockets, waistline, pant
legs, socks, and shoes. Hoppe cannot do a more thorough strip search at that time.
Hoppe warned defendant that he could face an additional criminal charge if he brought
contraband inside the jail. Defendant did not indicate he was in possession of
contraband. Afterwards, Hoppe accompanied defendant to the intake room. At that
point, a member of the jail staff took custody of defendant. Hoppe explained that once a
member of the jail staff takes custody of a defendant, the staff completes a medical
screening and searches the defendant again.
       Leonel Martinez was employed as a correctional officer for the Santa Cruz County
Sheriff’s Office at the time of defendant’s arrest. Officer Martinez explained that once an
arresting officer brings someone into the jail facility, correctional officers conduct a pat
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down search. Once the individual is admitted to the main jail, they undergo a strip search
before they are housed.
       Officer Martinez first encountered defendant in the open seating area of the
booking platform. Earlier, defendant had been inside a holding room for approximately
nine to 10 hours. Other individuals may have been inside the same room as defendant.
The holding rooms are monitored by a security camera, and there were no reports that
defendant had acted suspiciously while he was inside the holding room. When Martinez
encountered defendant, he was still wearing his personal clothing. Martinez instructed
defendant to walk to the shower room where he could get dressed. Martinez opened the
door to the shower room and told defendant to step inside and remove his clothing for a
search. At that point, defendant began taking his clothing off. As defendant removed his
sweater, Martinez saw defendant motion as if he was throwing something from near his
waist area. Martinez heard something fall against the stainless steel shower. Defendant
was facing Martinez at the time.
       Officer Martinez called for another correctional officer to stand guard while he
went inside the shower room to find the object that had struck the shower. Martinez
asked defendant to step outside the room. Martinez then found a plastic bindle on the
floor of the shower. Although this information was not included in his written report,
Martinez said he noticed the bindle smelled like vinegar and feces. The substance inside
the bindle tested positive for heroin. When asked, defendant told Martinez the bindle
must have fallen out of his pocket.
   3. Verdict and Sentencing
       After the trial, the jury found defendant guilty of one count of possession of drugs
in jail (§ 4573.6). On July 14, 2015, the trial court suspended imposition of sentence and
placed defendant on three years’ probation subject to various terms and conditions.




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                                        DISCUSSION
       On appeal, defendant argues the court erred when it failed to instruct on the
defense of transitory possession. Defendant also argues that because the defense of
transitory possession was supported by substantial evidence, the trial court should have
also instructed on the lesser included offense of simple possession.
   1. Instruction on Transitory Possession
       a. Overview and Standard of Review
       “A judge must instruct on the law applicable to the facts of the case and a
defendant has a right to an instruction that pinpoints the theory of the defense [citations];
however, a trial judge must only give those instructions which are supported by
substantial evidence. [Citations.] Further, a trial judge has the authority to refuse
requested instructions on a defense theory for which there is no supporting evidence.”
(People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) “Evidence is ‘substantial’ only if a
reasonable jury could find it persuasive. [Citation.] The trial court’s determination of
whether an instruction should be given must be made without reference to the credibility
of the evidence. [Citation.] The trial court need not give instructions based solely on
conjecture and speculation.” (People v. Young (2005) 34 Cal.4th 1149, 1200.) “On
appeal, we independently review the court’s refusal to instruct on a defense.” (People v.
Orlosky (2015) 233 Cal.App.4th 257, 270.)
       b. Analysis
       Defendant requested the trial court instruct the jury with CALCRIM No. 2305, the
defense of momentary or transitory possession of a controlled substance. CALCRIM
No. 2305 lists three elements for the defense: (1) the defendant must have possessed the
controlled substance only for a momentary or transitory period, (2) the defendant
possessed the controlled substance in order to abandon, destroy, or dispose of it, and
(3) the defendant did not intend to prevent law enforcement officials from obtaining the
controlled substance.
                                              4
       The California Supreme Court has recognized the defense of transitory possession.
In People v. Mijares (1971) 6 Cal.3d 415, 418-419 (Mijares), the court held that in
certain limited circumstances, criminal defendants whose sole contact with a controlled
substance was for the limited purpose of disposal would not be liable for the crime of
possession. For example, in Mijares, the defendant drove over and picked his friend up
at a street corner. The friend lost consciousness while in the defendant’s car. The
defendant attempted to revive his friend and thought he might be overdosing on drugs.
(Id. at p. 419.) The defendant looked inside his friend’s pocket, found drugs, threw the
drugs out of the car, and drove his friend to a fire station. (Ibid.) The Supreme Court
reversed the defendant’s conviction for possession of drugs, finding the jury should have
been instructed that the defendant’s brief handling of the drugs in that particular situation
did not constitute possession. (Id. at p. 423.)
       The rule set forth in Mijares was clarified by the Supreme Court in People v.
Martin (2001) 25 Cal.4th 1180, 1191 (Martin), which held that “the defense of transitory
possession devised in Mijares applies only to momentary or transitory possession of
contraband for the purpose of disposal . . . .” Additionally, the defense does not apply to
“possession and control for the purpose of preventing imminent seizure by law
enforcement.” (People v. Padilla (2002) 98 Cal.App.4th 127, 137.)
       Defendant argues he was entitled to an instruction on transitory possession,
because there was substantial evidence supporting the defense. He argues that a
reasonable interpretation of the evidence is that he did not know he was in possession of
any contraband at the time of his arrest and only discovered he was in possession of drugs
when Officer Martinez conducted the search in the shower area. And when he
discovered the drugs, he immediately threw the bindle away from his body under the
continuous surveillance of Officer Martinez, which guaranteed law enforcement would
find the bindle.


                                              5
       First, defendant has not cited to any cases applying the Mijares defense to a
situation where an individual had the drugs in their possession for an extended period of
time, did not realize the drugs were in his or her possession, then reflexively abandoned
the drugs after becoming aware of the drugs. As stated in Mijares and Martinez, the
defense applies only to momentary or transitory possession of contraband for the
purposes of disposal. (Mijares, supra, 6 Cal.3d at p. 423; Martin, supra, 25 Cal.4th at
p. 1191.) In essence, defendant concedes that he was in physical possession of the drugs
for a prolonged period of time, but argues he only knew he was in possession of the drugs
for a fleeting moment before he disposed of the bindle. If, however, it is proven that
defendant did not knowingly possess drugs in jail, he would not be found guilty of
violating section 4573.6. Possession requires that a defendant both know of the presence
of the substance and know of the character of the substance that is possessed. (People v.
Carrasco (1981) 118 Cal.App.3d 936, 944.) Regardless, even if we assume the defense
of transitory possession applies in the circumstances described by defendant here, we
would find the instruction was not warranted.
       In part, defendant relies on People v. Burnham (1986) 176 Cal.App.3d 1134. In
Burnham, the appellate court found the trial court erred when it failed to sua sponte
instruct on the defense of belief as to consent for rape. (Id. at p. 1139.) There, the
defendant’s theory of defense was that his wife voluntarily participated in the alleged
acts. During trial, the defendant repeatedly asserted his wife was a willing participant.
(Id. at p. 1143.) There was also circumstantial evidence from which the jury could infer
the defendant believed his wife consented, including letters written to the defendant from
his wife professing her love, testimony that the wife had orally professed her love for the
defendant, and testimony that the wife carried a loaded pistol in her purse and could have
threatened the defendant with it if necessary. (Id. at p. 1148.) Based on the foregoing,
the court concluded that although the defendant’s testimony regarding his wife’s consent
could be characterized as unreasonable or incredible, “[t]he fact that evidence may be
                                              6
incredible, or is not of a character to inspire belief, does not authorize the refusal of an
instruction based thereon, for that is a question within the exclusive province of the jury.”
(Id. at p. 1143.)
       We do not agree with defendant that Burnham is instructive. We find defendant’s
argument that he discovered the drugs were in his possession only moments before he
disposed of them in the shower room based purely on speculation. It is possible that he
did in fact discover he was in possession of the drugs right before he attempted to dispose
of the bindle. This version of events does not contradict the evidence presented at trial.
We do not, however, believe that this was a reasonable inference that logically flows
from the facts that were presented.2 “By definition, ‘substantial evidence’ requires
evidence and not mere speculation. In any given case, one ‘may speculate about any
number of scenarios that may have occurred . . . . A reasonable inference, however,
“may not be based on suspicion alone, or on imagination, speculation, supposition,
surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn
from evidence rather than . . . a mere speculation as to probabilities without evidence.” ’ ”
(People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
       A jury instruction on a defense is only warranted if there is substantial enough
evidence for a reasonable jury to find it persuasive. (People v. Young, supra, 34 Cal.4th
at p. 1200 [“Evidence is ‘substantial’ only if a reasonable jury could find it
persuasive.”].) Here defendant’s theory of transitory possession is premised on
guesswork and imagination. Therefore, no jury instruction was warranted.

       2
         Defendant argues the following facts support an inference that he discovered he
had the drugs in his possession only moments before he disposed of the bindle and did
not intend to prevent law enforcement from discovering the drugs: (1) he was a known
drug user and was found in a home with indicia of drug use, (2) he was in a holding area
for an extended period of time where he did not attempt to dispose of the bindle even
though he was not under the scrutiny of correctional officers, (3) he threw the bindle
away while under the supervision of Officer Martinez.

                                               7
        Additionally, even if we agree with defendant that the circumstances of the crime
supported an inference that he did not know he was in possession of the drugs until
moments before he attempted to dispose of the bindle, there is still no substantial
evidence supporting the instruction. First, there was no direct evidence of defendant’s
state of mind presented at trial. Therefore, defendant’s argument he possessed the drugs
momentarily for the sole purpose of disposal is, at best, minimally supported. In contrast,
there was evidence at trial indicating that defendant did not possess the drugs only
momentarily. Based on Officers Martinez and Hoppe’s respective testimonies, there was
evidence that defendant was found in possession of the drugs after he had been pat
searched several times, asked if he had narcotics, and placed in a holding room for
approximately nine hours. Furthermore, there is no evidence that defendant only
discovered the bindle at the moment of the strip search. In fact, there was evidence to the
contrary. Officer Martinez testified the bindle had an odor of feces, which was
circumstantial evidence that defendant may have been purposefully hiding the bindle
from officers.
        Regarding the third element of the transitory possession defense, defendant argues
there is substantial evidence he did not intend to prevent law enforcement officials from
obtaining the drugs, because he threw the bindle away while he was being observed by
Officer Martinez in the shower room. Throwing the bindle away, however, is not
substantial evidence defendant intended for law enforcement to find the drugs.
Defendant did not hand the drugs over to Martinez. He also did not alert any of the
officers that he was in possession of drugs. Rather, defendant tossed the bindle away
from himself toward the shower stall. When asked about the bindle by Martinez,
defendant responded that it must have fallen from his pocket. Defendant’s statement to
Martinez is inconsistent with his theory that he possessed the drugs solely to dispose of
them.


                                             8
       Thus, we do not find the trial court erred when it denied defendant’s request to
instruct the jury with the defense of transitory possession based on the minimal evidence
presented in support of the defense. There was no substantial evidence to support the
instruction.
   2. Instruction on Simple Possession
       Defendant was charged with a single count of possession of a controlled substance
in jail (§ 4573.6). The elements of the offense are: (1) the defendant possessed a
controlled substance; (2) the defendant knew he possessed the controlled substance;
(3) the defendant knew the nature of the controlled substance; (4) the defendant
possessed a usable amount; and (5) the defendant was in jail or under the custody of
prison officials at the time of possession. (§ 4573.6; People v. George (1994) 30
Cal.App.4th 262, 277.) Defendant argues that because the defense of transitory
possession was supported by substantial evidence, the trial court should have also
instructed the jury with the lesser included offense of simple possession (Health & Saf.
Code, § 11350).
       As stated in his opening brief, defendant’s argument on this point is contingent on
our finding there was substantial evidence supporting his transitory possession defense.
Defendant claims “an instruction on transitory possession was required given the facts of
this case, which in turn necessitated an instruction on simple possession.” In other
words, defendant argues that if the jury concluded that he was not guilty of possession of
a controlled substance in jail based on the transitory possession defense, the evidence
presented could have reasonably supported a finding that he knowingly possessed the
heroin at some point prior to his arrest and was therefore guilty of simple possession.
       Here, we have found the trial court did not err in refusing to give the instruction on
the transitory possession defense. Accordingly, since defendant’s argument pertaining to
the trial court’s failure to instruct on simple possession is dependent on a finding that


                                              9
substantial evidence supports the transitory possession defense, this argument also
necessarily fails.
   3. Cumulative Error
       Lastly, since we find no merit in defendant’s arguments, we need not address his
claim that the cumulative prejudice of the instructional errors warrants reversal of his
conviction.
                                       DISPOSITION
       The judgment is affirmed.




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                                                           Premo, J.




      WE CONCUR:




             Rushing, P.J.




             Walsh, J.*




      *
        Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
