Paz

—We deal here with a previously unreported variation on the theme of People v. Mijares (1971) 6 Cal.3d 415 [ 99 Cal.Rptr. 139 , 491 P.2d 1115 ] {Mijares), that, under certain limited circumstances, momentary possession of contraband is not legally culpable. While we are confronted with the always disconcerting pageant of both parties relying on the same language from the same cases to arrive at conclusions that are polar opposites, we conclude the Attorney General’s reading of the cases more closely comports with California law. We therefore hold a defendant who disposes of contraband not out of scruple, but because of the threat of bodily harm or police apprehension, cannot invoke Mijares .

STATEMENT OF FACTS

Since the issue in this case is so narrowly defined, the facts necessary to its determination can be quickly related. Appellant Efrain Negrete Paz and Jose Salazar got into an argument involving territorial claims of Paz’s gang. Essentially, Salazar testified Paz was mouthy and belligerent so he punched him and a fight ensued.

During the battle, Paz threatened that his “homies” were going to come and help him “kick [Salazar’s] ass.” Salazar yelled to his…