P. v. Schultz
Filed 5/20/13 P. v. Schultz CA1/1
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. RYAN ANDREW SCHULTZ, Defendant and Appellant. | A134582 (Sonoma County Super. Ct. No. SCR-585133) |
Defendant
Ryan Andrew Schultz was charged under Health and Safety Code
section 11379.6 with manufacturing hash oil, a marijuana derivative, after
his vehicle was found to contain cans of a chemical solvent and lengths of
marijuana-filled pipe. He contends he
should have been prosecuted under section 11358, which prohibits the
cultivation and processing of marijuana.
We affirm.
BACKGROUND
Defendant
and two others were charged in an information, filed November 9, 2011, with manufacturing “hash oilâ€
(§ 11379.6, subd. (a)), cultivating or processing marijuana
(§ 11358), possessing marijuana for sale (§ 11359), and transporting
marijuana (§ 11360, subd. (a)).
Prior to trial, the court dismissed all but the manufacturing
charge.
The
case was submitted for court trial on the basis of police reports and a
declaration from an expert witness
retained by the defense. Defendant
contested the applicability to his conduct of section 11379.6, which prohibits
the processing of controlled substances by “chemical extraction†or “chemical
synthesis.â€
According
to the police reports, defendant was seen driving away from his residence as
the fire department arrived to extinguish a chemical fire. When police located defendant’s vehicle, it
was found to contain several cases of butane, lengths of PVC pipe covered with
a honey-colored substance, some of which were filled with marijuana, and
several pounds of marijuana. The
honey-colored substance was later identified as “butane honey oil,†a
concentrated form of tetrahydrocannabinol (THC), the psychoactive component of
marijuana. A police officer explained
that butane honey oil is manufactured using tubes formed from PVC pipe with a
cap on either end. The pipe is filled
with marijuana, into which butane is injected and then drained. When the drained butane, which dissolves THC
from the marijuana plant material, is evaporated, it leaves “hash oil,â€
essentially a concentrated form of marijuana.
The officer opined, based on his experience, that “the suspect(s) in
this case were manufacturing Hash Oil, by means of a chemical extraction using
Butane.â€
The
defense expert, a research chemist with a Ph.D. in entomology, stated, “The
term ‘chemical extraction’ is not generally accepted as a precise scientific
term, and does not appear in the scientific dictionaries or other literature
with which I am familiar.†He confirmed
that butane, as well as a number of other substances, is used to separate THC
from marijuana plant material. When used
in this manner, however, butane “act[s] to separate the THC from the vegetable
matter without chemically modifying the THC.â€
Accordingly, “the method can be fairly described as physically
separating the THC from the vegetable matter,†rather than chemical
extraction. The expert also stated that,
among scientists, “[t]he term ‘chemical’ is defined as any substance with a
distinct molecular composition,†including butane.
On
this record, the trial court found defendant guilty, suspended imposition of
sentence, and placed him on three years’ probation.
II. DISCUSSION
Defendant
contends his activities should have been prosecuted under section 11358,
which prohibits the processing of marijuana, because section 11379.6 is a more
general statute or, alternatively, does not apply to his conduct at all. In evaluating this contention, we are not
writing on a clean slate. Defendant’s
arguments, as he acknowledges, were rejected in People v. Bergen (2008) 166 Cal.App.4th 161 (
v. Milstein (2012) 211 Cal.App.4th 1158, 1164.)
Section
11379.6, subdivision (a), provides, “[E]very person who manufactures,
compounds, converts, produces, derives, processes, or prepares, either directly
or indirectly by chemical extraction or independently by means of chemical
synthesis, any controlled substance specified in Section 11054, 11055, 11056,
11057, or 11058 shall be punished by imprisonment . . . .†Section 11054 includes “marijuana†as a
schedule I controlled substance (id., subd.
(d)(13)), and “marijuana†is defined to include “the resin extracted from any
part of the plant†and “every compound, . . . derivative, mixture, or
preparation of the plant, its seeds or resin†(§ 11018). Under this definition, concentrated
derivatives of marijuana, such as hash oil, are “controlled substances†for
purposes of section 11379.6.
name="_ftnref2" title="">[2] Section 11358 states, “Every person who
plants, cultivates, harvests, dries, or processes any marijuana or any part
thereof, except as otherwise provided by law, shall be punished by imprisonment
. . . .†As a result,
both statutes prohibit the “process[ing]†of marijuana, but section 11379.6
contains the additional requirement of processing “either directly or
indirectly by chemical extraction or independently by means of chemical
synthesis.†The penalties for violation
of section 11379.6 are more severe than for violation of section 11358.
The
activities of the defendant in Bergen were identical to those of
defendant. Using PVC pipe and butane, he
separated concentrated TCH from marijuana plant material. (Bergen,
supra, 166 Cal.App.4th at p. 165.)
Just as defendant does, the Bergen
defendant argued he should have been charged under section 11358 because it
more specifically described his criminal activities. (See In
re Williamson (1954) 43 Cal.2d 651, 654 (Williamson) [where conduct is described by a more general and more
specific statute, the specific statute is regarded as an exception to the more
general statute].)
In
rejecting the argument, Bergen began
by observing section 11379.6 focuses on the particular processes used to produce
controlled substances, specified as “chemical extraction†or “chemical
synthesis,†and punishes these particular means when they are used to process
marijuana or other controlled substances.
As a result, the court concluded section 11379.6 is a narrower statute
than section 11358, which punishes any type of manufacture or processing of
marijuana or concentrated THC. (
p. 169.) The court then reviewed
the legislative history of the statute, concluding the Legislature’s concern in
enacting the statute was to punish more severely the use of chemicals in the
processing of controlled substances because this use posed dangers of its own,
such as fire, environmental damage, and explosion. (Bergen,
at pp. 170–172.) As the court
noted, at the time section 11379.6 was enacted, section 11358 already made it a
felony to cultivate or process marijuana.
Section 11379.6 imposed a more severe penalty when this activity
involved the use of chemical extraction or chemical synthesis. (Bergen,
at pp. 170–171.)
Regarding
the definition of “chemical extraction,†the court noted the term had been
defined in an opinion of the Attorney General as “ ‘the process of
removing a particular component of a mixture from others present,’ †using
as an example the extraction of THC from marijuana. (Bergen,
supra, 166 Cal.App.4th at p. 170;
74 Ops.Cal.Atty.Gen. 70, 76 (1991).)
Bergen noted this included the
use of solvents to extract THC, covering precisely the criminal activities of
the defendant. (Id. at pp. 172–173.)
Defendant
appears to argue his activities did not constitute “chemical extractionâ€
because, according to the defense expert, the scientific community would
characterize this type of processing as “physical separation.†In interpreting the meaning of the terms in
section 11379.6, our concern is not what a scientist would make of the words
but what the Legislature meant when it used them. In determining intent, we begin with the
words themselves, giving them a commonsense meaning, and proceed to extrinsic
materials only if necessary. Our
objective is to “ ‘ “select the construction that comports most closely with the
apparent intent of the Legislature, with a view to promoting rather than
defeating the general purpose of the statute, and avoid an interpretation
that would lead to absurd consequences.†’ †(Lopez
v. Superior Court (2010) 50 Cal.4th 1055, 1063.) The definition adopted by
the plain meaning of the term “chemical extraction,†and any doubt is resolved
by the legislative history, which confirms this reading. It is immaterial that the scientific
community might have chosen a different term.
Defendant
next argues Bergen erred in finding
section 11379.6 to be the more specific statute because all of the processing
activities covered by 11358 are also covered by section 11379.6. The argument is premised on the observation
of the defense expert that, when used as a noun, “chemical†refers to any pure
molecular substance, not merely to the type of flammable or toxic substances
envisioned by Bergen. Accordingly, he argues, any type of marijuana
processing must be accomplished by means of a “chemical,†making the two
statutes coextensive on this score.
Because section 11358 relates only to marijuana, defendant argues, it is
the more specific.
Defendant’s
argument misses the fundamental difference between the two statutes. Section 11358 is focused on marijuana,
prohibiting essentially any type of manipulation of the plant, including its
cultivation and preparation for sale.
Section 11379.6, in contrast, is concerned only with a particular kind
of activity in connection with controlled substances: their processing and synthesis using
chemicals. It is this use of chemicals
that defines the criminal activity covered by section 11379.6. (Bergen,
supra, 166 Cal.App.4th at p. 169.)
We
agree with Bergen that this focus on
the means of processing makes section 11379.6 the narrower statute, as it
concerns marijuana. In the manner
discussed in Williamson, supra, 43
Cal.2d at page 654, section 11379.6 effectively creates an exception to section
11358 for such activity. The cultivation
and processing of marijuana is punishable under section 11358, unless it
involves the use of chemicals to extract or synthesize. In that case, it is punished under section
11379.6. As explained in
greater penalty, makes sense because the use of chemicals has its own risks
beyond those of marijuana alone. The
fact that most extraction activities using marijuana involve chemicals does not
make section 11358 the more specific statute, since section 11358 covers a wide
range of other marijuana activities in addition to such extraction.
Defendant
also argues Bergen failed to consider
the “preclusion doctrine,†which prevents prosecution under a general statute
when a more specific statute prohibits the same conduct and provides a lesser
penalty. (People v. Rackley (1995) 33 Cal.App.4th 1659, 1665.) The preclusion doctrine is inapplicable here,
since the more general statute, section 11358, provides a lighter penalty than
the more specific statute.
Defendant
further argues Bergen’s conclusion
should be rejected because it would preclude the assertion of a medical use
defense to the manufacture of THC using chemicals and “the baking of medically
infused brownies.†By its terms, the
medical use defense applies only to violations of sections 11357 and 11358,
providing a “limited immunity†from prosecution for cultivation and use of
marijuana. (§ 11362.5, subd. (d);
469–470.) Because defendant cites no
legal authority suggesting a medical use defense was intended for all
activities involving marijuana, we find no legal basis for disagreeing with
to section 11358, and this exception may include the denial of a defense
otherwise available if the offense had been charged under section 11358.
supra, 166 Cal.App.4th at p. 172,
fn. 6.)
Finally,
defendant argues Bergen was
“incorrect†in its review of the legislative history of section 11379.6. Defendant contends the statute was merely
intended to “fix a prior problem with a prior bill regarding PCP†and expand
the definition of manufacture. Whatever
the original inspiration for the bill enacting section 11379.6, contemporary
committee reports demonstrate the statute was intended, as Bergen explains, “ ‘to deter the operation of clandestine drug
laboratories,’ with another purpose of the bill being to ‘create a separate
offense of manufacturing any controlled substance.’ †(Bergen,
supra, 166 Cal.App.4th at p. 171,
quoting Sen. Com. on Judiciary, com. on Assem. Bill No. 3165 (1983–1984 Reg.
Sess.) p. 2.)
Contrary
to defendant’s claim, nothing in the legislative history suggests “the
Legislature’s intent that § 11379.6 would not apply to the manufacture of
hash oil, concentrated cannabis, or any type of marijuana.†Defendant’s argument is based on the failure
of the legislative history specifically to mention marijuana derivatives. In determining legislative intent, however, we
reach extrinsic sources such as legislative history only if the plain language
of the statute is ambiguous. (Lopez v. Superior Court, supra, 50 Cal.4th at p. 1063.) Given the clear reference in
section 11379.6 to the statutes governing schedule I controlled substances
and the similarly unambiguous inclusion of marijuana in schedule I, broadly
defined by section 11018, the fact that the legislative history does not
specifically refer to marijuana or its derivatives is irrelevant to the
interpretation of the statute in this regard.
DISPOSITION
The
judgment of the trial court is affirmed.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
All statutory references are to the Health and Safety Code unless otherwise
indicated.
name="_ftn2" title="">[2]
Although THC is also a schedule I controlled substance under section 11054, the
statute appears to refer only to chemically synthesized THC, rather than the
substance as derived from natural sources.
(Id., subd. (d)(20).)
