California Criminal Jury Instructions (CALCRIM) (2017)

2305. Defense: Momentary Possession of Controlled Substance

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2305.Defense: Momentary Possession of Controlled Substance
If you conclude that the defendant possessed <insert name
of controlled substance>, that possession was not illegal 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
controlled 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 defendant must prove that it is
more likely than not that each of the three listed items is true.
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the defense of transitory possession
when supported by the evidence. (People v. Mijares (1971) 6 Cal.3d 415, 423 [99
Cal.Rptr. 139, 491 P.2d 1115].)
This defense “applies only to momentary or transitory possession of contraband for
the purpose of disposal . . . .” (People v. Martin (2001) 25 Cal.4th 1180, 1191
[108 Cal.Rptr.2d 599, 25 P.3d 1081] [disapproving of People v. Cole (1988) 202
Cal.App.3d 1439, 1445 [249 Cal.Rptr. 601], which had held that the length of time
the contraband was possessed was just one factor to consider].) As the Martin court
explained, the defense is established if the evidence shows “brief or transitory
possession of narcotics with the intent to dispose of the contraband.” (Id. at p.
1191, fn. 9.) The Martin court did not state that the defendant must also
specifically intend to end someone else’s unlawful possession of the contraband or
prevent someone else from obtaining the contraband. Thus, the committee has not
included this as an element.
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AUTHORITY
• Momentary Possession. People v. Martin (2001) 25 Cal.4th 1180, 1191 [108
Cal.Rptr.2d 599, 25 P.3d 1081]; People v. Mijares (1971) 6 Cal.3d 415, 423 [99
Cal.Rptr. 139, 491 P.2d 1115].
• Burden on Defendant to Establish by Preponderance. People v. Spry (1997) 58
Cal.App.4th 1345, 1369 [68 Cal.Rptr.2d 691] [noted as valid authority on this
holding in People v. Martin (2001) 25 Cal.4th 1180, 1192, fn. 10 [108
Cal.Rptr.2d 599, 25 P.3d 1081]]; see also People v. Mower (2002) 28 Cal.4th
457, 480, fn. 8 [122 Cal.Rptr.2d 326, 49 P.3d 1067].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public
Peace and Welfare, § 93.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 145,
Narcotics and Alcohol Offenses, § 145.01[1][d] (Matthew Bender).
2306–2314. Reserved for Future Use
CALCRIM No. 2305 CONTROLLED SUBSTANCES
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