Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F07715
NICHOLSON, Acting P. J.
A jury convicted defendant Alan Richard Ferger of one count of unlawful possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).) The trial court also determined defendant had been convicted previously of two serious felonies. (Pen. Code, §§ 667, subds. (b)-(i); 1170.12.) It sentenced defendant to prison for 25 years to life.
Defendant raises only one contention on appeal. He claims the trial court erred when it refused to instruct on his defense of momentary possession. We disagree with defendant’s claim and affirm the judgment.
FACTS
In 2004, the Federal Bureau of Investigation (FBI) began investigating a Sacramento mosque for possible criminal activity. The investigation’s targets were Sifudeen Mateen (also known as Steve Hernandez), the leader of the mosque, and Richard Pulley. FBI Agent Vincent George went undercover and began attending the mosque as Malik McGee, a used car dealer. During that time, he sold cars to both Hernandez and Pulley.
George became acquainted with defendant, whom he knew as Amen. George recorded all of his conversations with defendant. He also wore a transmitter which allowed other agents to hear his conversations. There were usually at least six other agents in the area when George was at the mosque.
On April 30, 2004, defendant asked George if he knew anyone who was looking for a firearm. George said he was interested in one. Defendant told him he had a.380 to sell. He had another weapon, a.22, but that was for someone else. He told George he had to go home to get the.380. George said he had to make a run to get some money. They agreed to meet at the furniture warehouse where defendant worked. Defendant told George the gun had cost him $350 and he would sell it to George for the same amount.
George stated a.380 is a semi-automatic handgun that takes a magazine.
About two-and-a-half hours later, the two met at the furniture warehouse, which was located near the mosque. Defendant said that others in the warehouse had told him the “feds” were in the area. George asked him if he no longer wanted to do the deal. Defendant said he would still go forward.
George went out to his car to get the money. When he returned, defendant had a backpack. He unzipped the backpack and took out the contents: a box containing the.380, a test fire target, a cleaning kit, and some rounds. Defendant explained everything that was in the backpack. He handled the firearm for George to see. After he explained everything, he put the gun back in the box, and put it and the rest of the materials back inside the backpack.
George gave defendant $360. With defendant’s permission, George used the backpack to take the gun and other materials to his car. He then returned the empty backpack.
Defendant attempted to sell George more guns afterward. A few days after selling the.380, defendant offered to sell George two Glock semi-automatic pistols. They agreed on a price of $1,600. That deal, however, fell through. In November 2004, defendant offered to sell George a semi-automatic assault rifle. They agreed on a price of $800. That sale also did not occur.
Defendant was not arrested until August 2005 so that the investigation at the mosque could continue.
Defense case
Defendant testified on his own behalf. He had suspected illegal activity was occurring at the mosque, but he was not privy to it or to those in charge of the mosque. When Agent George showed up as Malik McGee, defendant viewed him as an outsider. Later, defendant was informed by others to avoid George for fear he might have been a law enforcement officer.
Defendant claimed George was the first person to bring up the subject of guns. George allegedly raised the subject on at least two separate occasions before April 30, 2004. At those times, defendant did not tell George anything about obtaining guns.
On a couple of occasions, defendant saw firearms at the furniture warehouse. When asked if it occurred to him at that time what would happen if police found him, a felon, in a warehouse with guns, defendant responded, “Yeah, and I’m going to prison for a long time.”
On April 29, 2004, one of defendant’s coworkers, Abdul, told defendant he needed to sell some guns to raise some cash, and he asked if defendant knew anyone who wanted to buy guns. Defendant thought of at least two people who might be interested, both of whom he suspected of being involved with law enforcement. One of them was George. Abdul gave defendant a gun, which defendant put in his backpack. He then put the backpack inside a buffet in the warehouse.
The next day, April 30, defendant spoke with the first person about the gun. After a later meeting with the first person fell through, defendant saw George and decided to try to sell the gun to him. Assuming George was a law enforcement officer, defendant believed selling the gun to George would result in officers shutting down the illegal activity occurring at the mosque and warehouse and perhaps helping defendant get some money and get out of the state.
Defendant told George he had the gun that he would sell to him for cost. Defendant said the gun was at his house because if he was arrested there, it would not involve the mosque.
When he met George back at the warehouse, defendant retrieved his backpack with the gun inside. He placed the backpack on a mattress where the two were sitting. He opened up the backpack, but he did not touch the gun. He described the gun’s features to George, and sold him the gun. He thought he was going to be arrested right then.
Defendant admitted he was convicted of felony assault in 1999 and robbery in 1994, that both crimes involved guns, and that he knew he was not permitted to possess guns.
DISCUSSION
The prosecutor moved in limine to exclude an instruction on the defense of momentary or transitory possession. After the presentation of evidence, the trial court agreed with the prosecutor. It determined there were no grounds for the instruction because defendant possessed the gun with the intent to sell it instead of disposing of it, he maintained possession for two days, and the defendant was not completely sure George was an FBI agent when he sold him the gun.
This was a second trial for defendant on this charge. At his first trial, the court gave an instruction on momentary defense. The jury in that trial failed to reach a verdict, and the court declared a mistrial.
Defendant claims the trial court’s ruling was error. He claims the facts of his case justified the instruction on the momentary possession defense and, in particular, his assertion that he possessed the gun in order to dispose of it and alert the police to unlawful dealings at the mosque. We disagree.
A trial court must instruct sua sponte on a defense that is supported by substantial evidence if the defendant is relying on it. (People v. Whitehurst (1992) 9 Cal. App.4th 1045, 1049.) If, however, no substantial evidence supports the defense, “the court does not err in refusing to give instructions based on that defense.” (People v. Mayberry (1975) 15 Cal.3d 143, 151.)
In this matter, no substantial evidence supported a defense of momentary possession. Momentary or transitory possession occurs upon a “fleeting, de minimis possession [of contraband] and a reflexive act of abandonment . . . . [T]he defense of transitory possession . . . applies only to momentary or transitory possession of contraband for the purpose of disposal[.]” (People v. Martin (2001) 25 Cal.4th 1180, 1191 (Martin), citations omitted [no error in refusing request for momentary possession instruction where defendant possessed narcotics for four hours prior to police arriving on the scene and did nothing to dispose of the drugs for 40 minutes after they arrived until the police discovered them in his possession during a search.].)
In People v. Pepper (1996) 41 Cal. App.4th 1029 (Pepper), this court concluded the transitory possession defense was not available to a convicted felon charged with possession under Penal Code section 12021, subdivision (a)(1), such as defendant here, except in cases of self-defense, defense of others, or as a result of legal necessity. (Pepper, supra, at p. 1038.) The Martin court, by citing favorably to People v. Hurtado (1996) 47 Cal. App.4th 805, 814, a case that disagreed with our holding in Pepper, implied the defense was available as a charge of unlawful possession of a firearm by a felon. However, that issue was not before the Martin court, and the Supreme Court has not overruled Pepper. Nevertheless, we assume for purposes of argument only that the momentary or transitory defense is available to persons charged under Penal Code section 12021.
Defendant’s own testimony demonstrated he was not entitled to an instruction on the defense of transitory possession. Defendant stated Abdul gave him the gun on April 29 for him to sell. He put the gun in his backpack, and then stored the backpack inside a piece of furniture at the warehouse where he worked.
The following day, defendant, according to his testimony, attempted to sell the gun first to another person, but that meeting did not occur. He then offered to sell the gun to George. Later in the day, he retrieved the backpack, showed its contents to George, and then sold it to him.
There is no evidence in defendant’s testimony that he possessed the gun for a fleeting or de minimis amount of time and disposed of it reflexively, immediately, or instinctively. Instead, he stored the gun inside his backpack with the intent to possess it as long as necessary until he could sell it. There is nothing in the record indicating defendant possessed the gun just for the fleeting amount of time necessary to dispose of it.
Defendant claims outside factors limited his ability to dispose of the gun quickly and safely, and that we should extend the defense to account for these factors. Specifically, he asserts that a gun, unlike drugs, is more difficult to dispose without posing a risk to public safety. He thus claims the definition of transitory possession must be considered in light of the nature of the contraband and the ease with which one can safely discard it.
Whether or not that is so, placing a gun in a backpack and then storing the backpack so the gun can be sold at a later date, in no way equates with any legitimate definition of a momentary, fleeting, or transitory possession for the purpose of disposal. The purpose of the defense is to discourage retention (Martin, supra, 25 Cal.4th at p. 1191), not encourage retention until the best offer comes along.
Defendant also claims he could not dispose of the gun immediately in this instance because the gun was not his. He allegedly “had to come up with a better plan” for getting rid of the gun to avoid having to give an explanation to the gun’s owner, and he argues the defense should account for that. The argument is nonsense. His supposed need to develop a plan is the very fact that defeats the defense. For the defense to exist, the disposal must be reflexive, not contemplated.
As no substantial evidence supported a defense of transitory possession, the trial court did not err when it denied defendant’s request for an instruction on that defense.
DISPOSITION
The judgment is affirmed.
We concur: ROBIE, J., BUTZ, J.