Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. JJD060301 of Tulare County. Hugo Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
On February 6, 2008, a juvenile court found true the allegation that appellant, V.Q., had transported over an ounce of marijuana (Health and Saf. Code, § 11360, subd. (a).) The court removed him from the custody of his parents and ordered that he serve 45 to 180 days in the Youth Treatment Center. On appeal, appellant claims there is insufficient evidence (1) the substance he was transporting was marijuana and (2) the amount exceeded 28.5 grams. We disagree and will affirm.
All further statutory references are to the Health and Safety Code.
FACTS
On the night of September 7, 2007, Tulare County Sheriff’s Deputy Javier Guerrero noticed a blue Honda Civic traveling eastbound on a dirt road in Pixley. The vehicle drew Deputy Guerrero’s attention because both rear doors were partially open. He noticed “some sort of a green plant hanging out both sides of the open doors.” Deputy Guerrero pulled the vehicle over. The left rear passenger exited the car and attempted to flee. Deputy Guerrero held the fleeing passenger at gunpoint and advised dispatch of the situation. He observed the plant using his spotlight and concluded that it appeared to be a marijuana plant.
After two other deputies arrived at the scene, Deputy Guerrero contacted the three passengers who remained in the car. Appellant was the right rear passenger. Appellant told Deputy Guerrero that he and the others were driving in the area when they noticed the marijuana plant, cut it down, put it in the car, and drove away.
Deputy Guerrero photographed the vehicle and the plant. Afterward, the plant was transported to the Pixley substation. There, deputies separated the leaves from the stalk, filled four large brown bags with the leaves, and tested the plant using a marijuana NARCO kit. The plant was found to be presumptively positive for marijuana. Relying on his training, Deputy Guerrero testified that the shape of the leaves, smell of the plant, and shape and texture of the bud were consistent with marijuana. In both his lay and expert opinion the plant was marijuana. Based on the photographs, the court concluded the amount of marijuana being transported by appellant exceeded one ounce, 28.5 grams, and was thus a felony violation of section 11360, subdivision (a).
At trial, appellant objected to Deputy Guerrero’s testimony claiming his training was insufficient to qualify him as an expert. The court requested points and authorities on the issue and, after review, concluded that Deputy Guerrero’s knowledge, although not extensive, was sufficient to state an opinion. The court further reasoned that expert testimony goes to the weight of the evidence and that other circumstantial evidence (the admission by appellant, and the presumptive positive test) tended to support Deputy Guerrero’s opinion.
DISCUSSION
1. Substantial Evidence
Standard of Review
“‘“The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.”’” (In re Adrian R. (2000) 85 Cal.App.4th 448, 452.) We must review the entire record in the light most favorable to the judgment to determine whether there is “‘“substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the minor guilty beyond a reasonable doubt.”’” (Ibid.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
Transportation of Marijuana
Section 11360, subdivision (a) makes it a felony for any person to transport marijuana within the state. (§ 11360, subd. (a).) Section 11360, subdivision (b) creates an exception making transportation of 28.5 grams of marijuana or less a misdemeanor. (§ 11360, subd. (b).)
California case law defines the term Cannabis sativa L. broadly to include all plants popularly known as marijuana that contain the toxic agent THC. (People v. St. Amour (1980) 104 Cal.App.3d 886, 895.) The court noted in People v. Van Alstyne (1975) 46 Cal.App.3d 900 (Van Alstyne) that “all species of marijuana apparently possess the toxic agent ‘tetra- hydro-cannabinol,’ popularly known as THC.” (Id. at p. 910.) Because California does not differentiate among different species of marijuana, there is no requirement that the prosecution prove the particular species of marijuana. (Id. at pp. 910-911.)
Appellant contends there is insufficient evidence the plant he was transporting was marijuana as defined by section 11018. He also contends that there is insufficient evidence that the marijuana he was transporting exceeded 28.5 grams. He is mistaken.
“‘Marijuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.” (§ 11018.)
(a) Sufficient Evidence the Plant Was Marijuana
Appellant claims Deputy Guerrero’s testimony was insufficient to identify the plant as marijuana. He points to the deputy’s lack of experience with marijuana, handling only one marijuana cultivation case and encountering marijuana in its prepared form on just six occasions. He also argues that Deputy Guerrero’s one or two days of training at the academy were insufficient for him to positively identify the plant as marijuana.
Appellant points to the 1944 case People v. Oliver as an example of the qualifications required for an expert to identify marijuana. There, the testifying officer had graduated from Occidental College with a degree in chemistry, worked as a police chemist for three and a half years, and had conducted 150 scientific examinations of marijuana. (People v. Oliver (1944) 66 Cal.App.2d 431, 435 (Oliver).)
Credentials like those of the officer in Oliver are not required. Applying the substantial evidence standard, the testimony of a single witness is sufficient to support a conviction unless it is physically impossible or inherently improbable. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) There is nothing physically impossible or inherently improbable about Deputy Guerrero’s testimony. He was trained to recognize marijuana plants by their appearance, odor, and the shape and texture of their buds. He testified that the shape of the leaves, the smell of the plant, and the shape and texture of the bud led him to conclude the plant was marijuana.
Appellant argues there was no evidence that the marijuana contained THC. Appellant’s contention, however, is contrary to the plain language of section 11018 and, as noted above, all species of marijuana contain THC. (Van Alstyne, supra, 46 Cal.App.3d at p. 910.)
Appellant next argues the NARCO presumptive test is insufficient evidence that the plant is marijuana. He urges us to apply the Washington state case, State v. Portrey (1972) 492 P.2d 1050 (Portrey). There, the court held a color change test was not sufficient evidence to prove that a substance was LSD. (Id. at p. 1052.)
This case is distinguishable from Portrey. The color test in Portrey was not designed to test specifically for LSD but for indole structure. (Portrey, supra, 492 P.2d at p. 1051.) LSD was just one of many substances containing indole structure that could produce a positive result. (Id. at pp. 1051, 1052.) In contrast, the NARCO test used in this case was specifically designed to test for marijuana. The chemist in Portrey concluded the substance was LSD based solely on the result of the color test. (Id. at p. 1051.) Here, Deputy Guerrero based his opinion on the plant’s appearance, odor, and texture as well as the presumptive positive test.
Finally, appellant argues his statement to officers that the plant was marijuana cannot be used to determine the nature of the plant because the evidence does not establish he had prior experience with marijuana. Appellant contends his case is similar to In re Waylon M. (1982) 129 Cal.App.3d 950 (Waylon M.). There, the court held a minor’s statement that the material in his pocket was hashish was insufficient to establish the nature of the substance, reasoning that identification by the user requires evidence of the user’s prior experience with the drug, and testimony concerning its narcotic effect. (Id. at p. 952.) Lacking testimony of this sort, the court held “identification of narcotics as such requires the opinion of an expert.” (Ibid.)
This case is distinguishable. In Waylon M., the minor’s statement was the only evidence that the substance was hashish. (Waylon M., supra, 129 Cal.App.3d at p. 952.) Though the substance had been tested, the result was not admitted at trial. (Ibid.) Furthermore, the officer in Waylon M. was not qualified as an expert and did not testify to his background or knowledge regarding drugs. (Ibid.) Here, testimony of the positive NARCO test was admitted at trial, and Deputy Guerrero, who had training and experience with marijuana, testified that the plant was marijuana. (People v. Chrisman (1967) 256 Cal.App.2d 425, 433 [The qualifications of an expert witness are for the trial court and any question as to the degree of his knowledge goes to the weight of his testimony rather than to its admissibility].)
There are three independent sources in this case identifying the plant as marijuana: Deputy Guerrero’s opinion the plant was marijuana, the presumptively positive NARCO test for marijuana, and appellant’s statement that the plant was marijuana. Taken together, this constitutes substantial evidence that the plant was marijuana.
(b) Sufficient Evidence the Marijuana Exceeded One Ounce
Appellant contends that only the weight of usable marijuana is to be considered when determining which subdivision of section 11360 a defendant has violated. He claims that only the bud is relevant in determining the weight of this usable quantity. He argues Deputy Guerrero testified there was only one bud and there was no evidence as to its weight. Appellant thus concludes the lack of sufficient evidence regarding the weight of the usable portion (the bud) requires the court to reduce the offense to a misdemeanor pursuant to section 11360, subdivision (b). He is mistaken.
Section 11018 does not limit the definition of marijuana to the bud alone. Rather, marijuana is defined as “[a]ll parts of the plant Cannabis sativa L., whether growing or not.” (§ 11018.) The only exceptions to this definition are “the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.” (§ 11018.)
Furthermore, section 11360, subdivision (a) makes no reference to a usable quantity of marijuana. Appellant appears to be asking us to apply the “usable quantity rule” established in People v. Leal (1966) 64 Cal.2d 504, 512. However, courts have held “the Leal usable-quantity rule prohibits conviction only when the substance possessed simply cannot be used, such as when it is a blackened residue or a useless trace. It does not extend to a substance containing contraband, even if not pure, if the substance is in a form and quantity that can be used. No particular purity or narcotic effect need be proven.” (People v. Rubacalba (1993) 6 Cal.4th 62, 66.)
Section 11360 refers to the transportation of “any marijuana.” Appellant cites no authority for his assertion that section 11360, subdivision (a), requires a usable quantity, in accordance with his definition. To the contrary, the relevant statute provides that the weight of marijuana under section 11360 is to be determined from all parts of the plant defined as marijuana by section 11018. Here, photographs and testimony demonstrate appellant was transporting a marijuana plant so large it could not fit in the back seat of a Honda Civic. Deputy Guerrero also testified the leaves of the marijuana plant filled four “large brown bags.”
Appellant also contends the court’s determination that the marijuana exceeded 28.5 grams is inaccurate because it encompassed the entire plant: stalks, stems, leaves, and bud. We disagree.
There is nothing in the record that leads us to conclude the court took into account portions of the plant excluded by section 11018. Rather, the prosecution advised the court that its burden was to demonstrate the marijuana’s weight based on the leaves and buds of the plant. In response, the court stated the photographs show how large the plant is and “[t]he amount of leaves and various things that would greatly exceed an ounce.” We find these statements constitute sufficient evidence the court’s determination of weight was based only on those portions of the plant defined as marijuana by section 11018.
Accordingly, we agree with the trial court that “[i]t’s way beyond reasonable doubt that this plant greatly exceeds one ounce.”
DISPOSITION
The judgment is affirmed.