Spry

Introduction

Appellant was charged and convicted of possession of heroin. He relied on the defense that he lawfully possessed the heroin for the limited purpose of disposal, and the jury was instructed pursuant to CALJIC No. 12.06 concerning the elements of this defense. On appeal, he asserts the instruction failed to define the allocation and magnitude of the burden of proving this defense. Appellant also raises additional challenges to his conviction on appeal and through a petition for writ of habeas corpus.

In the published portion of this opinion, we will review CALJIC No. 12.06 and conclude the jury was not correctly instructed as to the magnitude of appellant’s burden of proving his affirmative defense, and reverse his conviction. In the nonpublished portion of this opinion, we will address appellant’s remaining issues for the guidance of the trial court on remand.

Statement of the Case

On September 28, 1994, an information was filed in Fresno County Superior Court charging appellant Matthew Vincent Spry with count I, possession of heroin, a felony (Health & Saf. Code, § 11350), and count H, being under the influence of a controlled substance, a misdemeanor…