Opinion
C088502
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. AARON MILO ANDRUS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CF01090)
Following a court trial, the trial court found defendant Aaron Milo Andrus guilty of manufacturing a controlled substance other than PCP. (Health & Saf. Code, § 11379.6, subd. (a).) The court suspended imposition of sentence and placed defendant on formal probation for three years, subject to various terms and conditions including 90 days in county jail.
Undesignated statutory references are to the Health and Safety Code. --------
Defendant now contends (1) he was improperly prosecuted under section 11379.6 because his method for marijuana resin extraction is not prohibited by that statute, (2) the doctrine of preclusion bars his prosecution under section 11379.6 because a more specific statute applies to his conduct, and (3) the rule of lenity requires this court to apply the statutory interpretation most favorable to him.
Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
Detective Doug Patterson testified as an expert on the investigation of marijuana, concentrated cannabis manufacturing, and the dangers associated with the manufacturing of concentrated cannabis. After serving a search warrant at defendant's property, the detective found an APEX carbon dioxide (CO2) extraction system there. Detective Patterson said the system uses CO2 as a solvent to extract tetrahydrocannabinol (THC) from marijuana plants to make hash oil.
Detective Patterson described the extraction process using CO2. Marijuana plant material is inserted into a tank known as an extraction vessel. Using high pressure, CO2 gas is converted into supercritical CO2, a liquid. The liquid CO2 passes through the plant material, stripping THC from it. The liquid CO2 and extracted THC are then sent to a second tank known as a separator vessel where the CO2 is converted back to a gas and separated from the THC. The concentrated cannabis -- hash oil -- falls into a collection cup. Detective Patterson explained that a rotary evaporator system also found in defendant's garage is used to further refine hash oil before the oil is placed in a freezer.
Detective Patterson opined that the CO2 tanks can explode and the CO2 can cause asphyxiation. He added that using ethanol in the further refinement process creates a fire hazard.
Russell Fowler, a Cal Fire battalion chief and coordinator for the interagency hazmat team, testified as an expert in hazardous materials, including CO2 and ethanol. Fowler said CO2 is a hazardous material that can asphyxiate and cause frostbite, and in its compressed form it is an explosion hazard. He also identified ethanol as a hazardous material because it is extremely flammable and toxic in liquid form.
The defense called Brian Frank Elliot, a retired fire fighter and battalion chief, as an expert on hazardous materials, fire science, and CO2 and ethanol processing. Elliot said ethanol and CO2 are considered nonvolatile chemicals under the California Code of Regulations, but he acknowledged there are dangers in a CO2 extraction system and in ethanol processing.
The trial court found defendant guilty of manufacturing a controlled substance other than PCP under section 11379.6, subdivision (a). The court suspended imposition of sentence and placed defendant on formal probation for three years, subject to various terms and conditions including 90 days in county jail.
DISCUSSION
I
Defendant contends he was improperly prosecuted under section 11379.6 because his method for marijuana resin extraction is not prohibited by that statute. He argues he should have been prosecuted under section 11358 rather than section 11379.6.
Section 11379.6, subdivision (a) provides in pertinent part that every person who manufactures, either directly or indirectly by chemical extraction, any controlled substance shall be punished by imprisonment. (§ 11379.6, subd. (a).) " 'Chemical extraction' " is " 'the process of removing a particular component of a mixture from others present.' " (People v. Bergen (2008) 166 Cal.App.4th 161, 170 (Bergen), citing 74 Ops.Cal.Atty.Gen. 70, 75 (1991).) Section 11358, on the other hand, provides in pertinent part that a person who processes more than six living cannabis plants shall be punished by imprisonment.
In Bergen, the defendant used chemical butane and PVC pipe to separate concentrated THC from marijuana plant material. (Bergen, supra, 166 Cal.App.4th at p. 165.) The defendant argued he should have been charged under section 11358 rather than section 11379.6, but the appellate court disagreed, reasoning that what defendant did constituted chemical extraction within the meaning of section 11379.6, subdivision (a). (Bergen, at pp. 164, 169, 172-173.) The court explained that unlike the general prohibition in section 11358, the focus of section 11379.6, subdivision (a) is on the particular method employed to produce a controlled substance, chemical extraction. (Bergen, at p. 169.)
Here, Detective Patterson said that in using defendant's APEX system, CO2 was used as a solvent to extract THC from marijuana plants and produce hash oil. Based on this record, defendant was not charged under the wrong statute.
The court in Bergen noted that the Legislature apparently intended to punish chemical extraction more harshly because of the danger to the public from fires, fumes or explosions. (Bergen, supra, 166 Cal.App.4th at p. 170.) Defendant argues CO2 and ethanol are nonvolatile, but all three expert witnesses in this case agreed that the extraction process in this case could be dangerous. Based on the evidence and the language of the statute, we conclude defendant's contention lacks merit.
II
Defendant next claims the doctrine of preclusion bars his prosecution under section 11379.6 because a more specific statute applies to him.
The preclusion doctrine prevents prosecution under a general statute when a more specific statute prohibits the same conduct and provides a lesser penalty. (People v. Rackley (1995) 33 Cal.App.4th 1659, 1665.) But the preclusion doctrine does not apply here because, as the court explained in Bergen, section 11358 is the more general statute. (Bergen, supra, 166 Cal.App.4th at p. 169.) Moreover, section 11379.6, the more specific statute, does not provide a lesser penalty. (§§ 11358, 11379.6, subd. (a).) Defendant's argument fails.
III
In addition, defendant contends the rule of lenity requires this court to apply the statutory interpretation most favorable to him. He claims a person wishing to process marijuana into a concentrate could reasonably believe that use of a nonvolatile carbon dioxide process would be a defensible activity.
"When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstances of its application reasonably permit." (People v. Overstreet (1986) 42 Cal.3d 891, 896.) But here the statutory language is not ambiguous, and the evidence establishes that defendant used chemical extraction to produce a controlled substance. The rule of lenity does not assist defendant here.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.