In 2001, I represented a client who was charged with possession of concentrated cannabis in violation of California Health and Safety Code section 11357(a), a felony. Despite the fact that my client had obtained, before he was arrested in possession of hash, a letter from his physician recommending the use of “medical cannabis,” the Santa Barbara County District Attorney claimed that because section 11362.5 (CUA) refers only to “marijuana,” it does not include “concentrated cannabis,” and therefore a medical marijuana patient is subject to felony punishment for possession of hash, and presumably, oil or edibles.
I am happy to report that the judge rejected this argument and dismissed the charge against my client. Health and Safety Code section 11018 defines marijuana to include “the resin extracted from any part of the plant [Cannabis sativa L.] and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.” “‘Concentrated cannabis’ means the separated resin, whether crude or purified, obtained from marijuana.” (Section 11006.5) The lesser is included in the greater. (The federal definition of marijuana in 21 U.S.C. 802(16) also includes both derivatives and preparations of marijuana.) For the purposes of criminal punishment only, section 11357 differentiates concentrated cannabis, marijuana by weight, whether the offender possessed marijuana on school grounds and, if so, whether the offender was a minor. This distinction has nothing to do with a lawful possessor or cultivator of “marijuana for medical purposes.”
Thereafter, an Opinion of the Attorney General of California, issued on October 21, 2003, stated that: “Concentrated cannabis or hashish is included within the meaning of “marijuana” as that term is used in the Compassionate Use Act of 1996.” (Attorney General Opinion No. 03-411) Furthermore, in 2004, with the enactment of Health and Safety Code section 11362.77(d), the legislature clarified that the possession of concentrated cannabis, within limits, by qualified patients is immune from prosecution. That section provides that: “Only the dried mature processed flowers of the female cannabis plant or the plant conversion shall be considered when determining allowable quantities of marijuana under this section.” (emphasis added)
Since then, two cases have been decided that, while not directly on point, support an inclusive definition of marijuana. In People v. Bergen (2008) 166 Cal.App.4th 161, 167-168, the Court concluded that “section 11358 applies as a general matter to the extraction of marijuana resin to produce concentrated cannabis,” but the manufacture of concentrated cannabis by chemical extraction was still prohibited by section 11379.6(a).
Likewise, in People v. Harris (2006) 145 Cal.App.4th 1456, the defendant surrendered to do jail time in possession of 72 wafers containing cannabis extract, three ounces of cannabis extract in olive oil, and proof that he was a qualified medical marijuana patient. The Court treated the cannabis as “marijuana” and therefore a “controlled substance.” Although Harris’ felony conviction was reversed, the Court reserved judgment on whether he might have been prosecuted under a different statute.
My impression is that qualified patients and caregivers are no longer being prosecuted in California for possession and manufacture of concentrated cannabis, within limits and not by chemical extraction. Please let me know if you know otherwise.
Seymour
