Martin

In People v. Mijares (1971) 6 Cal.3d 415 [ 99 Cal.Rptr. 139 , 491 P.2d 1115 ] (Mijares), this court held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. (Id. at p. 419.) Nearly two decades later, the court in People v. Cole (1988) 202 Cal.App.3d 1439 [ 249 Cal.Rptr. 601 ] (Cole) read our decision in Mijares as holding that “possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession,” and further concluded the defense “is not limited to possession for ‘brief moments’ only.” (Id. at p. 1445, italics in original.)

To date, with the exception of one published decision that, in dicta, seemingly accepted the rationale and holding of Cole (see People v. Spry (1997) 58 Cal.App.4th 1345 [ 68 Cal.Rptr.2d 691 ]), every court that has considered the issue has rejected Cole's expansive reading of Mijares's transitory possession defense. We granted review to clarify the nature and scope of the affirmative defense of transitory possession for disposal first announced in…

I concur in the result.

In People v. Mijares (1971) 6 Cal.3d 415 [ 99 Cal.Rptr. 139 , 491 P.2d 1115 ], this court held that momentary handling of a controlled substance for the sole purpose of disposal is not possession. (Id. at pp. 420-422.) Although the majority repeatedly states that in Mijares this court held that momentary handling of a controlled substance is a “defense” to a charge of possessing that substance (maj. opn., ante, at pp. 1182, 1185, 1186, 1190-1192), this court did not there create or recognize any affirmative defense to such a charge. Rather, this court in Mijares simply noted that the issue of momentary handling “goes to the very essence of the offense.” ( 6 Cal.3d at p. 423 .) Thus, unlike the majority, I would reaffirm Mijares without modification.

In People v. Mijares (1971) 6 Cal.3d 415 , 99 Cal.Rptr. 139 , 491 P.2d 1115 ( Mijares ), this court held that, under limited circumstances, momentary or transitory possession of an unlawful narcotic for the sole purpose of disposing of it can constitute a defense to a charge of criminal possession of the controlled substance. ( Id. at p. 419, 99 Cal.Rptr. 139 , 491 P.2d 1115 .) Nearly two decades later, the court in People v. Cole (1988) 202 Cal.App.3d 1439 , 249 Cal. Rptr. 601 ( Cole ) read our decision in Mijares as holding that "possession of illegal drugs solely for the purpose of disposal does not constitute unlawful possession," and further concluded the defense "is not limited to possession for `brief moments' only." ( Id. at p. 1445, 249 Cal.Rptr. 601 , italics in original.)

To date, with the exception of one published decision that, in dicta, seemingly accepted the rationale and holding of Cole (see People v. Spry (1997) 58 Cal.App.4th 1345 , 68 Cal.Rptr.2d 691 ), every court that has considered the issue has rejected Cole's expansive reading of Mijares's transitory possession defense. We granted review to clarify the nature and scope of the affirmative…