People v. Hamilton

California Court of Appeal Apr 24, 1980 No. Crim. 11311Published

Before: Cologne

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Holding. The court held that the statutory definition of marijuana as 'Cannabis sativa L.' encompasses all plants popularly known as marijuana containing THC, and that police may lawfully reenter a premises to seize contraband previously observed in plain view.

Issues

Whether the statutory definition of marijuana is unconstitutionally vague for failing to distinguish between different botanical species.
Whether the prosecution must prove the specific botanical species of marijuana in a criminal charge.
Whether the warrantless reentry of a vessel to seize contraband previously observed in plain view violates the Fourth Amendment.

Disposition. affirmed

Quotations verified verbatim against the opinion

“[W]e hold that the term ‘Cannabis sativa L.’ in section 11018 must be construed as a general term which includes all plants popularly known as marijuana that contain the toxic agent THC.”

“Since California law does not draw a distinction among the different types of marijuana, it is not necessary for the prosecutor to specify and prove the species of marijuana subject of the charge.”

“The reentry on the boat to obtain the evidence Starks had seen in plain sight before leaving the vessel to secure his own protection and effect the arrest was proper.”

Opinion

COLOGNE, J.

Charles Gordon Hamilton was charged with unlawful sale of marijuana on November 8, 1978 (Health & Saf. Code, § 11360,

[115]

subd. (a)).

Hamilton, Joseph Edward Basford and Kirk Monroe Hart were each charged with unlawful possession of marijuana for sale (see § 11359) and sale of marijuana on November 9, 1978 (§ 11360). After the court denied motions to suppress (Pen. Code, § 1538.5) and to dismiss (Pen. Code, § 995), the defendants waived jury trial and submitted their case on the preliminary transcript and the testimony of two witnesses. They were found guilty and timely appeal their judgments (orders granting probation).

Deputy Sheriff Larry Starks, assigned to a narcotics task force, received information that Hamilton was selling marijuana, hashish and “acid” on his boat named

Konita

and conducted a surveillance of the vessel.

On November 8, 1978, after a few weeks of observation, Starks contacted Hamilton and told him a man named “Denny” had told him he could buy a lid of marijuana on the boat. Hamilton invited Starks into an interior cabin away from other people aboard and told Starks he had some marijuana called “sinsemilla,” high grade Mexican marijuana, for sale at $45 an ounce. After some haggling over the price, Starks agreed to buy an ounce for $40. Hamilton removed a bag containing marijuana from beneath a mattress and took out some of the contents which he put in a bag and handed to Starks.

After this sale was completed, Starks asked about buying an additional five pounds. Hamilton told him the price was $400 per pound for “sinsemilla” and $450 per pound for “gold.” Starks also asked about “acid” (LSD) and was told the price for that was $3.50 a “hit” (dosage). They arranged a meeting for the next day.

On the following day, Starks returned to the

Konita

and arranged with Hamilton for a purchase of five pounds at $400 a pound. Hamilton then accompanied Starks to his Car where he produced $2,500 to consummate the sale. Hamilton made a call and about 30 minutes later, Hart and Basford drove up to the dock with a large “Pampers” box in which the large quantity of marijuana, held in six plastic trash bags, was concealed. The marijuana was inspected. Starks told the group he would get the money from his car and left the boat. Hamilton followed

People v. Hamilton

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COLOGNE, J.

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