Legislation on hashish
2009.04.27
On November 5, 1996, the voters of California adopted Proposition 215, an
initiative statute authorizing the medical use of marijuana. (People v. Mower (2002) 28
Cal.4th 457, 463; People v. Bianco (2001) 93 Cal.App.4th 748, 751; People v. Rigo (1999)
69 Cal.App.4th 409, 412.) The measure added section 11362.5 to the Health and Safety
Code1 and entitled the statute the “Compassionate Use Act of 1996.” (§ 11362.5, subd. (a).)
Section 11362.5 “creates an exception to California laws prohibiting the possession and
cultivation of marijuana.” (United States v. Oakland Cannabis Buyers’ Cooperative (2001)
532 U.S. 483, 486.) “These prohibitions no longer apply to a patient or his primary
caregiver who possesses or cultivates marijuana for the patient’s medical purposes upon the
recommendation or approval of a physician.” (Ibid.; see People v. Mower, supra, 28 Cal.4th
at pp. 471-474; People v. Galambos (2002) 104 Cal.App.4th 1147, 1160-1162; People v.
Young (2001) 92 Cal.App.4th 229, 235.)2 We are asked to determine whether section
11362.5’s reference to “marijuana” includes concentrated cannabis or hashish. We conclude
that it does.
Section 11362.5 provides:
“(a) This section shall be known and may be cited as the
Compassionate Use Act of 1996.
“(b)(1) The people of the State of California hereby find and declare
that the purposes of the Compassionate Use Act of 1996 are as follows:
“(A) To ensure that seriously ill Californians have the right to obtain
and use marijuana for medical purposes where that medical use is deemed
appropriate and has been recommended by a physician who has determined
that the person’s health would benefit from the use of marijuana in the
treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana provides relief.
“(B) To ensure that patients and their primary caregivers who obtain
and use marijuana for medical purposes upon the recommendation of a
physician are not subject to criminal prosecution or sanction.
“(C) To encourage the federal and state governments to implement
a plan to provide for the safe and affordable distribution of marijuana to all
patients in medical need of marijuana.
“(2) Nothing in this section shall be construed to supersede
legislation prohibiting persons from engaging in conduct that endangers
others, nor to condone the diversion of marijuana for nonmedical purposes.
“(c) Notwithstanding any other provision of law, no physician in this
state shall be punished, or denied any right or privilege, for having
recommended marijuana to a patient for medical purposes.
“(d) Section 11357, relating to the possession of marijuana, and
Section 11358, relating to the cultivation of marijuana, shall not apply to a
patient, or to a patient’s primary caregiver, who possesses or cultivates
marijuana for the personal medical purposes of the patient upon the written or
oral recommendation or approval of a physician.
“(e) For the purposes of this section, ‘primary caregiver’ means the
individual designated by the person exempted under this section who has
consistently assumed responsibility for the housing, health, or safety of that
person.”
Section 11362.5 uses only the term “marijuana” and contains no direct reference to
“concentrated cannabis” or “hashish.”
Although section 11362.5 does not define the term “marijuana,” the statute is
part of the California Uniform Controlled Substances Act (§§ 11000-11651; “Act”), which
contains the following definition of marijuana in section 11018:
“ ‘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,
3 Accordingly, we will treat concentrated cannabis and hashish as being equivalent for purposes of
our analysis.
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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.”
Federal law has a similar definition of marijuana. (21 U.S.C. § 802(16); see People v.
Hamilton (1980) 105 Cal.App.3d 113, 116-117; People v. Van Alstyne (1975) 46 Cal.App.3d
900, 916; United States v. Kelly (9th Cir. 1976) 527 F.2d 961, 963-964; U.S. v. Schultz (S.D.
Ohio 1992) 810 F.Supp. 230, 233; cf. Haynes v. State (1975) 54 Ala.App. 714, 717-718 [312
So.2d 406].) “Unless the context otherwise requires” (§ 11001), the definition of marijuana
found in section 11018 controls our interpretation of section 11362.5.
“Concentrated cannabis” is defined for purposes of the Act, “[u]nless the
context otherwise requires” (§ 11001), in section 11006.5: “ ‘Concentrated cannabis’ means
the separated resin, whether crude or purified, obtained from marijuana.” Concentrated
cannabis “includes hashish” (Hooks v. State Personnel Board (1980) 111 Cal.App.3d 572,
579), which is commonly defined as “[a] form of cannabis that consists largely of resin from
the flowering tops and sprouts of cultivated female plants” (Stedman’s Medical Dict. (5th
ed. 1982), p. 621).3
Tetrahydrocannabinol (“THC”) is marijuana’s most active pharmacological
ingredient. (People v. Rigo, supra, 69 Cal.App.4th at p. 413; People v. Hamilton, supra, 105
Cal.App.3d at p. 116; People v. Van Alstyne, supra, 46 Cal.App.3d at pp. 910, 917.) We are
informed that the THC level of ordinary marijuana varies widely from 5 to 60 percent; for
concentrated cannabis, as defined in section 11006.5, it may range up to 70 percent. The
quality, purity, and strength of ordinary marijuana and concentrated cannabis, including
hashish, depend upon a number of different factors. (See People v. Hamilton, supra, 105
Cal.App.3d at pp. 115-116; People v. Van Alstyne, supra, 46 Cal.App.3d at pp. 909-911;
U.S. v. Schultz, supra, 810 F.Supp. at pp. 231-234; Haynes v. State, supra, 312 So.2d at pp.
717-719.)
Returning to the language of section 11362.5, we find that subdivision (d)
provides the operative terms of the statute. If a patient or caregiver “possesses or cultivates
marijuana for the personal medical purposes of the patient upon the written or oral
recommendation or approval of a physician,” two statutes do not apply to the patient or
caregiver: “Section 11357, relating to the possession of marijuana, and Section 11358,
relating to the cultivation of marijuana.” (See People v. Fisher (2002) 96 Cal.App.4th 1147,
1151-1152; People v. Bianco, supra, 93 Cal.App.4th at p. 751; People v. Rigo, supra, 69
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Cal.App.4th at p. 412; People ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at pp. 1387-
1394; People v. Trippet (1997) 56 Cal.App.4th 1532, 1550.) Section 11357 states:
“(a) Except as authorized by law, every person who possesses any
concentrated cannabis shall be punished by imprisonment in the county jail for
a period of not more than one year or by a fine of not more than five hundred
dollars ($500), or by both such fine and imprisonment, or shall be punished by
imprisonment in the state prison.
“(b) Except as authorized by law, every person who possesses not
more than 28.5 grams of marijuana other than concentrated cannabis, is guilty
of a misdemeanor and shall be punished by a fine of not more than one
hundred dollars ($100)). . . .
“(c) Except as authorized by law, every person who possesses more
than 28.5 grams of marijuana, other than concentrated cannabis, shall be
punished by imprisonment in the county jail for a period of not more than six
months or by a fine of not more than five hundred dollars ($500), or by both
such fine and imprisonment.
“(d) Except as authorized by law, every person 18 years of age or over
who possesses not more than 28.5 grams of marijuana, other than concentrated
cannabis, upon the grounds of, or within, any school providing instruction in
kindergarten or any of grades 1 through 12 during hours the school is open for
classes or school-related programs is guilty of a misdemeanor and shall be
punished by a fine of not more than five hundred dollars ($500), or by
imprisonment in the county jail for a period of not more than 10 days, or both.
“(e) Except as authorized by law, every person under the age of 18
who possesses not more than 28.5 grams of marijuana, other than concentrated
cannabis, upon the grounds of, or within, any school providing instruction in
kindergarten or any of grades 1 through 12 during hours the school is open for
classes or school-related programs is guilty of a misdemeanor and shall be
subject to the following dispositions:
“(1) A fine of not more than two hundred fifty dollars ($250), upon a
finding that a first offense has been committed.
4 “In interpreting a voter initiative . . . we apply the same principles that govern statutory
construction. [Citation.]” (People v. Rizo (2000) 22 Cal.4th 681, 685.)
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“(2) A fine of not more than five hundred dollars ($500), or
commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile
home for a period of not more than 10 days, or both, upon a finding that a
second or subsequent offense has been committed.”
Section 11358 provides:
“Every person who plants, cultivates, harvests, dries, or processes any
marijuana or any part thereof, except as otherwise provided by law, shall be
punished by imprisonment in the state prison.”
We believe that concentrated cannabis comes within the provisions of section
11362.5 for several reasons. First, the statutory definition of marijuana for purposes of the
Act as set forth in section 11018 plainly includes concentrated cannabis. Concentrated
cannabis is “the separated resin . . . obtained from marijuana” (§ 11006.5) and thus
constitutes “the resin extracted from any part of the plant” (§ 11018). In the context of
section 11362.5, we find neither intent nor need to construe the term “marijuana” any
differently from the definition contained in section 11018. “Both the Legislature and the
electorate by the initiative process are deemed to be aware of laws in effect at the time they
enact new laws and are conclusively presumed to have enacted the new laws in light of
existing laws having direct bearing upon them. [Citations.]” (Williams v. County of San
Joaquin (1990) 225 Cal.App.3d 1326, 1332.)
Second, section 11357 uses the phrase “other than concentrated cannabis”
when concentrated cannabis is intended to be distinguished from ordinary marijuana. The
framers of Proposition 215 did not employ similar exclusionary language for concentrated
cannabis when they proposed the Compassionate Use Act of 1996. “Where a statute on a
particular subject omits a particular provision, the inclusion of such a provision in another
statute concerning a related matter indicates an intent that the provision is not applicable to
the statute from which it was omitted.” (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64
Cal.App.3d 881, 891; see also Traverso v. People ex rel. Dept. of Transportation (1993) 6
Cal.4th 1152, 1166; Holmes v. Jones (2000) 83 Cal.App.4th 882, 890; People ex rel.
Lungren v. Peron, supra, 59 Cal.App.4th at p. 1392; People v. Trippet, supra, 56
Cal.App.4th at p. 1550.)4
Of course, if concentrated cannabis were not “marijuana” in the first instance,
there would be no need in section 11357 to employ the phrase “other than concentrated
5 We view the phrase “relating to the possession of marijuana” contained in subdivision (d) of
section 11362.5 as an abbreviated description of section 11357’s provisions rather than as a limitation upon
such provisions in a manner intended to exclude the possession of concentrated cannabis. (See, e.g., People
ex rel. Lungren v. Peron, supra, 59 Cal.App.4th at pp. 1386, 1394, 1400.)
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cannabis.” “Where reasonably possible, we avoid statutory constructions that render
particular provisions superfluous or unnecessary. [Citations.]” (Dix v. Superior Court
(1991) 53 Cal.3d 442, 459.) The contrary construction with respect to section 11357 would
mean that a person could not possess concentrated cannabis for medical purposes under
section 11357 but could process it for such purposes pursuant to section 11358. “[W]e
consider portions of a statute in the context of the entire statute and the statutory scheme of
which it is a part” (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063) “ ‘ “in order to
achieve harmony among the parts” ’ ” (People v. Hull (1991) 1 Cal.4th 266, 272) “and avoid
an interpretation that would lead to absurd consequences” (People v. Jenkins (1995) 10
Cal.4th 234, 246; accord, Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978).
Most significantly, as previously mentioned, the provisions of section 11357
are expressly rendered inapplicable under the conditions specified in section 11362.5, and
the first subdivision of section 11357 sets forth the penalty for possession of “concentrated
cannabis.” Hence, it is manifest that one may possess concentrated cannabis without
violating the terms of section 11357 as long as the requirements of section 11362.5 are met.5
Finally, we have carefully reviewed the ballot materials accompanying
Proposition 215 and have found nothing therein to indicate that the voters intended for
concentrated cannabis to be treated differently from ordinary marijuana when used for
medical purposes. (See People v. Trippet, supra, 56 Cal.App.4th at pp. 1545-1546.)
Proposition 215 was approved by the voters without specificity as to the strength, quality,
or quantity of marijuana to be used for medical purposes as long as the use is reasonably
related to the patient’s current medical needs and was recommended or approved by a
physician. (See People v. Mower, supra, 28 Cal.4th at pp. 471-474; People v. Galambos,
supra, 104 Cal.App.4th at pp. 1161-1162, 1165-1168; People v. Rigo, supra, 69 Cal.App.4th
at pp. 413, 415; People ex rel. Lungren v. Peron, 59 Cal.App.4th at p. 1394; People v.
Trippet, supra, 56 Cal.App.4th at pp. 1545-1549.) If anything, the fact that ordinary
marijuana and concentrated cannabis, including hashish, may have similar levels of THC
supports our interpretation that the terms of section 11362.5 apply to concentrated cannabis.
We conclude that concentrated cannabis or hashish is included within the
meaning of “marijuana” as that term is used in the Compassionate Use Act of 1996.0.3