People v. Pohle

• Decision Date: 17 September 1971
• Docket Number: Cr. 4460
• Citation: 20 Cal.App.3d 78,97 Cal.Rptr. 364
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Harold POHLE, Defendant and Appellant.

Page 364

97 Cal.Rptr. 364

20 Cal.App.3d 78

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Harold POHLE, Defendant and Appellant.

Cr. 4460.

Court of Appeal, Fourth District, Division 1, California.

Sept. 17, 1971.

Patricia M. Doyle, San Diego, under appointment by Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Michael Harold Pohle (defendant) appeals from a judgment imposing a misdemeanor sentence for possession of marijuana of which he had been found guilty in a non-jury trial.

A motion to dismiss under Penal Code, section 1118.1, made at the conclusion of the People's case in chief, had been denied.

The ground of the motion was that the evidence did not show possession of marijuana in a usable quantity.

Defendant defines the question raised on appeal as follows:

'Was there sufficient evidence from which it could be reasonably inferred that the substance identified as marijuana had a narcotic potential; that is, was there a usable (or sufficient) amount of narcotic in this substance to produce a narcotic effect?'

The marijuana possessed by defendant weighed approximately 20.4 grams, a usable quantity in the opinion of an expert, who said the average marijuana cigarette contains approximately .3 of a gram of marijuana. ¹

Section 11530 of the Health and Safety Code declares that 'Every person who possesses any marijuana, except as otherwise provided by law, shall be punished' in the manner defined.

Health and Safety Code, section 11003 defines Cannabis sativa as follows:

"Cannabis sativa,' as used in this division, means the male or female of any species commonly known as cannabis sativa, hemp, Indian hemp, or marihuana.'

Section 11003.1 of the same code defines marijuana as follows:

"Marijuana' as used in this division means all parts of the plant Cannabis sativa L. (commonly known as marijuana), whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compund, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.'

The burden of defendant's argument is that evidence sufficient to convict must show a usable amount of the chemical components of marijuana known as tetrahydrocannabinol and cannabidiol, which the testimony showed produce a narcotic effect. Those components as well as cannabidiolic acid and cannabinol are derived from the resin found in the stems, leaves, and seed pods of the plant. No resin is found in the seeds themselves. More of the such resin is secreted by the female plant than by the male, and the amount of resin secreted by the plant varies with the age of the plant and the climatic conditions under which it is grown.

In support of his argument, defendant relies upon People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665, which held that in penalizing a person who possesses a narcotic, the Legislature proscribed possession of a substance that has a narcotic potential; it condemned the commodity that could be used as such; it did not refer to useless traces or residue of such substance. Hence the possession of a minute crystalline residue of a narcotic useless for either sale or consumption does not constitute sufficient evidence in itself to sustain a conviction. The prosecution proved no more than defendant's possession of traces of narcotics and did not show that such residue was usable for sale or consumption.

In Leal the defendant had been convicted of possession of a narcotic other than marijuana, to wit, heroin, in violation of section 11500 of Health and Safety Code.

In People v. Johnson, 5 Cal.App.3d 844, 85 Cal.Rptr. 238, this court held the jury should have been instructed that they could not convict unless they should find a single pill contained a usable amount of amphetamine. Again what was proscribed was a drug capable of isolation from its inert carrier.

The inclusive definition of narcotics is found in Health and Safety Code, section 11001. It includes diacetylmorphine or heroin. It includes also 'marihuana (Cannabis sativa), its derivatives or compounds.'

The requirement that a chemical compound such as heroin be shown to be present in a usable quantity cannot be transferred to require that marijuana in an amount usable for the making and smoking of a number of cigarettes be shown to possess chemical components in a quantity sufficient to produce the effect of a narcotic.

The requirements of the statute are met by the possession of seeds, which contain no resin....