People v. Sheridan

• Decision Date: 03 April 1969
• Docket Number: Cr. 3314
• Citation: 76 Cal.Rptr. 655,271 Cal.App.2d 429
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lew Allen SHERIDAN, Defendant and Appellant.

Page 655

76 Cal.Rptr. 655

271 Cal.App.2d 429

PEOPLE of the State of California, Plaintiff and Respondent, v. Lew Allen SHERIDAN, Defendant and Appellant.

Cr. 3314.

Court of Appeal, Fourth District, Division 2, California.

April 3, 1969.

Dahlstrum, Walton, Butts & Bergman, and Richard A. Walton and G. Merle Bergman, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Arthur B. Rosenfeld, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

On this appeal defendant presents the sole question: Did the trial court err by sustaining the prosecution's objection to a question propounded on cross-examination of the prosecution's expert witness? We have determined the court did not commit error.

Following a trial by jury, defendant was found guilty of two counts of the sale of marijuana, Health & Safety Code, § 11531. Probation was denied and defendant was sentenced to state prison for the term prescribed by law with the sentence on Count II ordered to run concurrently with that on Count I. The minimum sentence was set at six months, pursuant to Penal Code, § 1202b. This appeal is from the judgment of conviction.

A factual review of the events preceding the conviction is unnecessary inasmuch as the defendant does not challenge the sufficiency of the evidence on which the judgment is based, and the proof of guilt of the crimes charged is conclusive.

This appeal is based solely on one factor. During the course of the trial, the criminalist called by the prosecution was asked on cross-examination: 'Botanically speaking, sir, is marijuana a narcotic?' An objection was interposed on the ground that the legislature has designated marijuana a narcotic. (Health & Safety Code, § 11001(d).) Defense counsel declined argument and the trial judge sustained the objection.

On appeal, it is conceded that the legislature under a proper exercise of its police power may declare the possession or sale of marijuana to be a Crime. However, it is urged that the legislature, by classifying marijuana as a Narcotic, was able to obtain public support for the 'excessive punishment' it prescribed for the possession or sale of marijuana and that such classification is unreasonable. Stated in another form, defendant urges that the punishment prescribed for the possession or sale of marijuana is excessive because, it is argued, marijuana is not a narcotic.

Questions of a similar nature have been raised in other jurisdictions and whenever the issue has been presented it has been uniformly held that marijuana is a narcotic drug for purposes of statutory interpretation. (Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; People v. Stark, 157 Colo. 59, 400 P.2d 923; Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786; State v. Jackson, Del., 239 A.2d 215; Common-wealth v. Leis, Mass., 243 N.E.2d 898; Escobio v. State, Fla., 64 So.2d 766; United States v. Ford Coupe Automobile, 83 F.Supp. 866.)

Moreover, defendant claims only that the punishments imposed for violation of the marijuana laws are 'excessive.' The fixing of penalties for crimes is a legislative rather than a judicial function. (In re Anderson, 69 A.C. 638, 658, 73 Cal.Rptr. 21, 447 P.2d 117; People v. Wade, 53 Cal.2d 322, 336, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Tanner, 3 Cal.2d 279, 298, 44 P.2d...