Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Judge. Super. Ct. No. JJD060398
Maureen Michele Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Cornell, J.
In J. R.’s third appearance before the juvenile court, the court found that the 17-year-old had transported more than 28.5 grams of marijuana. (Health & Saf. Code, § 11360, subd. (a).) The court committed J. R. to a juvenile facility for one year. On appeal, J. R. contends there is insufficient evidence to support the finding that he transported more than 28.5 grams of marijuana. We disagree and will affirm.
FACTS
On September 7, 2007, Tulare County Deputy Sheriff Javier Guerrero was on duty when he saw a Honda Civic driving with both rear doors open approximately six inches. He caught up to the vehicle because he believed the open doors were a safety hazard. As Deputy Guerrero got closer to the vehicle, he saw a five-to-six foot plant across the rear seats, hanging out of the doors. When he stopped the vehicle, one passenger attempted to run from the car. J. R. and another passenger told Deputy Guerrero that they had seen a marijuana plant growing in an empty lot, cut it down and put it in the car. Deputy Guerrero noted that the plant was similar to marijuana plants he had encountered during training and other cases. He took J. R. and the three others from the car into custody. Photographs were taken of the plant inside and out of the vehicle.
At the police station, Deputy Guerrero and Sergeant Elliot conducted a presumptive “NARCO kit” drug test on the plant, which tested positive for marijuana. They stripped the leafy material of the plant from its stalk. The stalk filled one large brown bag. The leafy material filled four large brown bags. The process took approximately 20 minutes.
The court found the photographs and testimony were sufficient evidence, in lieu of an actual weight measurement of the marijuana, that J. R. transported more than 28.5 grams (1 ounce) of marijuana.
DISCUSSION
Substantial Evidence of Transportation of 28.5 Grams or More of Marijuana Standard of Review
In assessing J. R.’s claim of insufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value, such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catley (2007) 148 Cal.App.4th 500, 504.) The same standard of review applies to juvenile cases. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
Transportation of Marijuana
It is a felony under Health and Safety Code section 11360, subdivision (a), to unlawfully transport more than 28.5 grams of marijuana. That provision states, “every person who transports … any marijuana shall be punished by imprisonment in the state prison for a period of two, three or four years.” (Health & Saf. Code, § 11360, subd. (a) .) Under section 11360, subdivision (a), it must be shown that the appellant transported marijuana, and that the marijuana weighed more than 28.5 grams. (Ibid.)
Transporting 28.5 grams or less is a misdemeanor. (Health & Saf. Code, § 11360, subd. (b) [“every person who … transports … not more than 28.5 grams of marijuana … is guilty of a misdemeanor.”])
Marijuana, for purposes of section 11360, includes “all parts of the plant Cannabis sativa L. plant, whether growing or not.” (Health & Saf. Code, § 11018.) Marijuana does not, however, include the mature stalks of the plant. (Ibid.) While the volume to weight ratio does vary, in one case where growing marijuana leaves were weighed, five large bags weighed 10 pounds. (People v. Wilson (1987) 191 Cal.App.3d 161, 165 (Wilson).)
Whether evidence is sufficient to satisfy the statutory standard is answerable on a case-by-case basis. (Wilson, supra, 191 Cal.App.3d at p. 167.) The statute’s intent must be gathered from the “terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.” (Id. at p. 166.)
J. R. contends that there was insufficient proof that he was transporting more than 28.5 grams of marijuana. He argues that the pictures and testimony as to the amount cannot be used in lieu of an actual weight measurement, and cannot support a reasonable inference by the court that the leafy material weighed more than 28.5 grams. He contends that the court relied only on conjecture in determining the minimum weight of the leafy material.
Here, while the weight of the marijuana that J. R. transported was not entered into evidence, the court’s conclusion that it weighed more than 28.5 grams was reasonable. The photographs, showing a very leafy plant between five and six feet in height, combined with Deputy Guerrero’s testimony that the leafy material filled four large brown bags, is evidence of “reasonable, credible and solid value” sufficient in lieu of an actual weight measurement.
The use of photographs in J. R.’s case is analogous to People v. Wilson, where the court determined that photographs were sufficient evidence of the amount of marijuana, in lieu of the actual plants or a weight measurement. Wilson contended that he was deprived of due process because photographs of marijuana plants reaching above a fence line were not a representative sample of the marijuana according to Health and Safety Code section 11479, which governs destruction of controlled substances in excess of 10 pounds. (Wilson, supra, 191 Cal.App.3d at p. 165.) Health and Safety Code section 11479, subdivision (b), permits photographs which reasonably demonstrate the total amount of the suspected controlled substance to be used as evidence. (Wilson, supra, 191 Cal.App.3d at p. 166, fn. 2.) Section 11479, subdivision (c) of the Health and Safety Code permits estimation of the weight based on a dimensional measurement of the total suspected controlled substance. The court in Wilson reasonably determined that photographs of Wilson’s plants reaching above a fence line were sufficient evidence of the amount of marijuana in lieu of the actual plants or their weight measurement. (Wilson, supra, 191 Cal.App.3d at p. 168.)
As in Wilson, the photographs and testimony were sufficient evidence of the weight of marijuana J. R. transported. While J. R.’s case is not controlled by Health and Safety Code section 11479 as Wilson was, the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt, based on evidence that is reasonable, credible and of solid value. Considered in the light most favorable to the judgment, the pictures and testimony could reasonably lead to the conclusion that J. R. was transporting more than 28.5 grams of marijuana. This conclusion is consistent with other examples of the volume of marijuana and its relative weight, such as in Wilson, where five large bags of growing leafy material from marijuana plants weighed 10 pounds. (Wilson, supra, 191 Cal.App.3d at p. 161.)
Although there was no direct evidence before the court as to the exact weight of the marijuana, the circumstantial evidence in this case supports the court’s inference that it weighed more than 28.5 grams. The photographs showed the marijuana plant in the backseat of the car, hanging out of both rear doors. Similar to the photographs in Wilson of the marijuana reaching above a fence line, these photographs reasonably demonstrated the volume of J. R.’s plant. Deputy Guerrero testified that the plant was between five and six feet in length. The deputies also testified that the volume of leafy material, which qualifies as marijuana under Health and Safety Code section 11018, filled four large brown bags. The stalk, separated from the leafy material, filled only one brown bag.
The photographs and testimony were reasonable, credible and solid evidence which, viewed in the light most favorable to the judgment, were sufficient to support the court's inference that J. R. transported more than 28.5 grams of marijuana.
DISPOSITION
The judgment is affirmed.