P. v. Schultz CA1/1

Filed 5/20/13 P. v. Schultz CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A134582 v. RYAN ANDREW SCHULTZ, (Sonoma County Super. Ct. No. SCR-585133) Defendant and Appellant.

Defendant Ryan Andrew Schultz was charged under Health and Safety Code1 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. I. BACKGROUND Defendant and two others were charged in an information, filed November 9, 2011, with manufacturing “hash oil” (§ 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

1 All statutory references are to the Health and Safety Code unless otherwise indicated.

applicability to his conduct of section 11379.6, which prohibits the processing of controlled substances by “chemical extraction” or “chemical synthesis.” 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,” 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.” 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.” 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.