Does momentary handling of a controlled substance constitute possession?

[108 Cal.Rptr.2d 610]

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, 99 Cal.Rptr. 139, 491 P.2d 1115.) 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, 108 Cal.Rptr.2d at pp. 600, 602, 604, 607-609, 25 P.3d at pp. 1082, 1084, 1085, 1088-1089), 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, 99 Cal.Rptr. 139, 491 P.2d 1115.) Thus, unlike the majority, I would reaffirm Mijares without modification.

[108 Cal.Rptr.2d 610]