Here is the latest case on medical marijuana concentrates in California. According to the ruling, all chemical extracted THC from Marijuana is Illegal. Which means, any THC extracted using Butaine,  alcohol, or any other type of chemical is not prohibited. Here is the full case hearing:

Niall Patrick Bergen appeals from the judgment entered following his plea of no
contest to manufacturing concentrated cannabis, known as “hash oil” or “honey oil,” by
using butane to extract the resin containing the psychoactive ingredient
tetrahydrocannabinol (THC) from marijuana plant material. (Health & Saf. Code,
§ 11379.6, subd. (a) (section 11379.6(a)).)1 Bergen contends he should have been
charged under section 11358, which addresses processing resin from marijuana, instead
of section 11379.6(a). We conclude that when, as here, the method used to extract the
marijuana resin was by means of a chemical such as butane, section 11379.6(a) applies
over the more general statute punishing marijuana cultivation, harvesting or processing.
(§ 11358.) Accordingly, we affirm.
BACKGROUND
The following evidence was presented at Bergen’s preliminary hearing. Sheriff’s
deputies conducted surveillance of a house on Carolyn Drive in a residential area of
Palmdale. Deputies reported they smelled marijuana emanating from the residence as
they drove by.
Deputy Sheriff Rich Simmons had been observing the house for several hours on
February 15, 2007 when he saw a car pull into the driveway and park. He watched as the
garage door opened automatically and the vehicle pulled into the garage. Bergen got out
of the driver’s side of the car and another man got out of the passenger side. Both men
walked over to a corner of the garage where they remained for perhaps a minute or two.
From his perspective Deputy Simmons could not see what the two men were doing in the
corner of the garage.
After inspecting the corner of the garage, Bergen and his companion got back into
the vehicle and left. Deputies stopped Bergen’s vehicle minutes later and arrested Bergen
1 All further undesignated statutory references are to the Health and Safety Code.
3
and his companion. Deputies seized keys from Bergen’s car. One of the keys operated
the lock to the door of the house on Carolyn Drive.
Sheriff’s deputies secured a search warrant and searched the house on Carolyn
Drive. They discovered Bergen used the house as a “grow house.” The house was
outfitted with 1,000-watt “grow lights” and an air conditioning system operated by an
illegally tapped electrical supply. Every room in the house was devoted to marijuana
cultivation. Some areas of the house were filled with young plants measuring only six
inches high. Other areas housed medium sized plants, one to two feet tall. Other areas
had mature four to five foot tall plants that were blooming and flowering. Overall, the
house contained 665 marijuana plants with an estimated street value of over $2 million.
In searching the area of the garage Bergen and his companion inspected, deputies
found 18, 12 to 13-inch-long white plastic tubes, similar to P.V.C. pipe. In the same area
of the garage deputies found bottles of butane, including nine full cases of butane. They
also found approximately 1,000 glass vials and a few glass bowls containing a greenish
residue.
Detective Robert Wagner testified as an expert on the process of extracting resin
from marijuana to produce soluble concentrated cannabis, known on the street as “hash
oil” or “honey oil.” In Detective Wagner’s opinion Bergen was operating a “honey oil”
extraction lab in the house on Carolyn Drive.
Detective Wagner described the process of manufacturing soluble concentrated
cannabis as follows: One and a half inch round solid plastic piping is cut into 18-inch
lengths. Solid caps are placed on both ends of the 18-inch tubes. A screw-off cap is
placed on the top and a single hole is drilled into the top cap. Five to seven small holes
are then drilled into the bottom cap and a filtering device inserted. Filters akin to coffee
filters are used for this purpose.
Marijuana is then loosely packed into the tube and the top cap screwed onto the
tube. The tube is placed upright in a stand. A bottle of butane is inserted into the single
hole in the top cap and poured slowly into the tube to allow the butane to draw the oils
down through the tube. Butane is a solvent and it extracts the resin from the plant
4
material as the butane flows from the top of the tube to the bottom. A glass dish is placed
under the upright tube to collect the filtered residue as it drips through the small holes in
the bottom of the tube. This resin extraction and filtering part of the process takes
approximately 15 minutes. It requires another 20 minutes or so for the butane to
evaporate, leaving the amber colored concentrated cannabis known colloquially as “hash
oil” or “honey oil.” When all the butane has safely dissipated, the “honey oil” is then
poured into individual glass vials.
Criminologist John Bever testified regarding his analysis of the marijuana and
resins seized from the house on Carolyn Drive. He defined concentrated cannabis as a
substance that has been processed from the marijuana plant itself, either by physical
separation of the resins from the plant material, or by chemical extraction of those resins
from the plant material. He explained the psychoactive ingredient in the marijuana
resins, or concentrated cannabis, was the cannabinoid tetrahydrocannabinol, known as
“THC.” He also explained that in the process of making concentrated cannabis, butane
acts as a solvent by dissolving the THC and other cannabinoids present in the plant and
drawing it out as a liquid. Bever explained that butane is particularly efficient for this
purpose. Using butane in the process of extracting marijuana resin also has the added
benefit of evaporating quickly and of leaving no odor. One of the risks of using butane,
however, is that butane is flammable.
At the conclusion of the evidence Bergen moved to dismiss the charges. He
argued the count for manufacturing concentrated cannabis in particular should be
dismissed because it could not apply to marijuana. Among other arguments, Bergen
asserted the manufacturing process began with marijuana, with the final result a
component of marijuana. Because no chemical change occurred, he claimed the charge
under section 11379.6(a) for chemical synthesis or extraction did not apply. The court
rejected Bergen’s arguments and held Bergen to answer on charges of producing
concentrated cannabis (§ 11379.6(a)); cultivating marijuana (§ 11358); possession of
marijuana for sale (§ 11359); and theft of services (Pen. Code, § 498, subd. (b)).
5
Bergen moved to dismiss the charges in the trial court. (Pen. Code, § 995.) The
court agreed the multiple statutes on the subject of marijuana created a certain ambiguity.
The court also acknowledged the dearth of decisional authority clarifying the
circumstances in which processing marijuana should be distinguished from the extraction
process and thus which punishment should apply to the production of concentrated
cannabis. The court nevertheless ruled section 11379.6(a) was appropriately charged in
this case (1) based on the statute’s specific reference to “marijuana,” which by definition
includes its resin or concentrated cannabis(§§ 11018, 11006.5), and (2) based on the
evidence showing Bergen had produced the concentrated cannabis using a process of
chemical extraction, an act prohibited by section 11379.6(a). The court accordingly
denied Bergen’s motion to dismiss.
On the date set for trial, Bergen, as part of a negotiated plea, waived his
constitutional rights to a jury trial and entered a plea of no contest to a violation of
section 11379.6(a). The court accepted his plea and dismissed the remaining counts. The
court imposed a mid-term sentence of five years in state prison and imposed related fines
and penalty assessments.
Bergen filed a notice of appeal. The trial court issued Bergen a certificate of
probable cause on the issue whether section 11379.6(a) validly applied to the production
of concentrated cannabis.
DISCUSSION
Bergen claims section 11379.6(a) does not apply to the production of concentrated
cannabis from marijuana. Bergen argues because section 11358 is specific to marijuana
processing, it controls over section 11379.6(a)’s general prohibition against the
manufacture of controlled substances. He points out the statutory definition of marijuana
includes its resin, or concentrated cannabis, and thus its production is more appropriately
punished under section 11358. Bergen points out, neither marijuana resin nor
concentrated cannabis is specifically listed as a banned controlled substance in any of the
6
schedules listed in section 11379.6(a), which, Bergen concludes, indicates the Legislature
did not intend to include concentrated cannabis within its proscriptions. Finally, he
asserts, section 11358 and the other existing statutes regulating marijuana were neither
abolished nor amended when the Legislature enacted section 11379.6 as one of several
legislative provisions to prohibit and punish clandestine drug laboratories. Bergen claims
this shows a legislative intent to continue marijuana processing prosecutions solely under
section 11358.
Standard of Review
The interpretation of a statute presents a pure question of law an appellate court
reviews de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415,
432.)
General Provisions Prohibiting Production of Concentrated Cannabis
The statutory definition of “marijuana” includes its resin containing the THC.
Section 11018 states “‘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. . . . ” (Italics added.)
The statutory definition of “concentrated cannabis” is also the resin extracted from
marijuana. Section 11006.5 states, “‘Concentrated cannabis’ means the separated resin,
whether crude or purified, obtained from marijuana.”
Section 11358 specifies punishment for, among other prohibited acts, processing
marijuana. Section 11358 states, “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.”
Based on these provisions, Bergen correctly argues section 11358 applies as a
general matter to the extraction of marijuana resin to produce concentrated cannabis.
7
Manufacture of Concentrated Cannabis Through Chemical Extraction
Section 11379.6(a) makes it unlawful to engage in the chemical extraction of a
substance as part of the process of manufacturing a controlled substance. (People v.
Coria (1999) 21 Cal.4th 868, 874.) It is an additional statute that prohibits “processing”
of “marijuana.” Section 11379.6(a) provides, “Except as otherwise provided by law,
every person who manufactures, compounds, converts, produces, derives, processes, or
prepares, either directly or indirectly by chemical extraction or independently by means
of chemical synthesis, any controlled substance specified in Section 11054, 11055,
11056, 11057, or 11058 shall be punished by imprisonment in the state prison for three,
five, or seven years and by a fine not exceeding fifty thousand dollars ($50,000).” (Italics
added.)
“Marijuana” is listed as a Schedule I hallucinogenic controlled substance in
section 11054 and is thus included within the scope of section 11379.6(a). (§ 11054,
(d)(13).) “Tetrahydrocannabinols,” the psychoactive ingredient in marijuana, are also
listed as Schedule I hallucinogenic controlled substances in section 11054. (§ 11054,
subd. (d)(20).) Neither “concentrated cannabis” nor “marijuana resin” are specifically
mentioned in the statutory schedules of controlled substances. However, they are both
components of marijuana and are thus subsumed within the statutory definition of
“marijuana.” (§ 11018 [defining marijuana to include its resin], § 11006.5 [defining
concentrated cannabis as the resin separated from marijuana].)
Unlike the general prohibitions in section 11358, the focus of section 11379.6(a) is
on the particular processes employed to produce a controlled substance—by chemical
extraction or chemical synthesis.2 Stated differently, section 11379.6(a) does not simply
make unlawful the processing of concentrated cannabis as does section 11358. It
prohibits and punishes the specific means used to process marijuana plant material into
2 This case concerns only chemical extraction and not section 11379.6(a)’s
alternative prohibition on manufacturing controlled substances through chemical
synthesis. (Compare, e.g., People v. Jackson (1990) 218 Cal.App.3d 1493, 1500, 1503-
1505 [PCP production involves the chemical synthesis of multiple reagents].)
8
concentrated cannabis. In this sense section 11379.6(a) is a more narrowly drawn statute,
covering only specific methods of processing “marijuana”—which by statutory definition
includes concentrated cannabis (§ 11018).
Section 11358, in contrast, could potentially apply to any number of possible
alternative methods for producing concentrated cannabis. Prosecution under section
11358 would be appropriate, for example, if the resin was physically extracted from the
marijuana plant through pressure, through a screening process, or by using an ice water
method to produce the concentrated cannabis. Similarly, section 11358 would properly
apply to the production of concentrated cannabis if the method used was instead by
leaching the resin from the plant material by dissolving it in a nonchemical lipid
extractor, such as butter. (See generally, U.S. Drug Enforcement Admin., Office of
Forensic Sciences (May 2005) Microgram Bulletin, vol. XXXVIII, No. 5, pp. 5-6,
<http://www.usdoj.gov/dea/programs/forensicsci/microgram/mg0505/mg0505.html> [as
of August 21, 2008]; http://en.wikipedia.org/wiki/Marijuana [as of August 21, 2008];
http://marijuanahydro.com/makinghash.html [as of August 21, 2008].) Section
11379.6(a) properly applies where the production of concentrated cannabis is by means
of chemical extraction instead. (See People v. Jenkins (1980) 28 Cal.3d 494, 501-504
[prosecution under a general statute is precluded if a more specific statute applies].)
Our conclusion section 11379.6(a) applies to the production of concentrated
cannabis by means of chemical extraction is reinforced by a 1991 Attorney General
Opinion. There the question concerned whether real property used to cultivate marijuana
was properly subject to forfeiture. In reviewing various statutes, the Attorney General
also analyzed section 11379.6(a) and found it “directed to the chemical production of
controlled substances and not their horticultural production.” (74 Ops.Cal.Atty.Gen. 70,
1991 WL 495454 *4.) The Attorney General opined that although cultivating marijuana
produced marijuana “directly,” such production was not “by chemical extraction” nor by
“chemical synthesis” and thus cultivation fell outside the proscriptions of section
11379.6(a). (Id. at *5.)
9
The Attorney General defined the “chemical extraction” prohibited by section
11379.6(a) as “the process of removing a particular component of a mixture from others
present.” (74 Ops.Cal.Atty.Gen. 70, 1991 WL 495454 at *5.) The example the Attorney
General gave of what would constitute “chemical extraction” under section 11379.6(a)
described the very situation presented by this case, namely “the extraction of resinous
THC (tetrahydrocannabinol) or hashish from marijuana.” (Ibid.)
Punishment for Producing Concentrated Cannabis Through Chemical Extraction
The Legislature adopted section 11379.6 in 1985 and placed the offense of
manufacturing controlled substances into a separate section. The sole expressed purpose
of the change was “to increase the penalties for those who illegally manufacture
controlled substances.” (Historical and Statutory Notes, 40, pt. 2 West’s Ann. Health &
Saf. Code (2007 ed.) foll. § 11379.6, p. 530, italics added; see also, People v. Coria,
supra, 21 Cal.4th at p. 879.) The Legislature apparently intended to punish more harshly
use of chemicals in the production of controlled substances because of the dangers posed
to the public from the use of hazardous substances, such as fires, fumes or explosions.
As explained in the Attorney General’s opinion, “When section 11379.6 was enacted in
1985 (Stats. 1985, ch. 3, § 8), section 11358 already specifically made it a felony to
cultivate marijuana. Section 11379.6 was not necessary to address that situation, but
rather the situation presented by the dangers inherent in the chemical production,
processing and preparation of controlled substances. As explained in People v. Jackson,
supra, 218 Cal.App.3d at 1504: ‘There is more danger during the processing of volatile
chemicals than after the (substance being made from them) is finally produced.’ Thus,
the Legislature has expressed not only concern that controlled substances are dangerous
in themselves as finally produced, but also for the unique dangers to the general public
that arise in the course of their illicit production. (See, e.g., §§ 11640 [legislative
findings on clandestine drug labs], 11644 [directive to disseminate information to the
public on the dangers created by clandestine drug labs]; People v. Jackson, supra.) . . .
Nearly from its inception, section 11379.6 has been associated in the legislative mind
10
with addressing the problem of that chemical production. (Cf. § 11642 [regarding
reimbursement for costs associated with cleaning up toxic waste from clandestine drug
labs].)” (74 Ops.Cal.Atty.Gen. 70, 1991 WL 495454, *5.)3
The legislative history of section 11379.6 further indicates the Legislature decided
use of chemicals in producing controlled substances warranted more severe punishment.
A report to the Senate Committee on the Judiciary stated a purpose of the bill was “to
deter the operation of clandestine drug laboratories” with another purpose of the bill
being to “create a separate offense of manufacturing any controlled substance[.]” (Sen.
Com. on Judiciary, com. on Assem. Bill 3165 (1983-1984 Reg. Sess.) p. 2, underlining in
original.)
The report to the Senate Committee on the Judiciary explained the need for the bill
as follows: “This bill would implement one of the recommendation[s] of the Attorney
General’s Commission on Narcotics. The Commission found that clandestine drug labs
were a major and growing problem. Most labs produced methamphetamines, but PCP
and other controlled substances are also being produced. [¶] The sponsor contends that
manufacture of these drugs should be punished more severely than sale or possession for
sale because of the added dangers attendant to the manufacturing process. These dangers
include environmental damage resulting from the disposal of toxic chemicals, fire and
explosions (sometimes in residential neighborhoods where the labs often are located), and
increased risk to law enforcement officers who investigate these operations. In addition,
proponents assert that the offense deserves more serious punishment because it starts the
entire distribution chain. If manufacturing of controlled substances could be deterred,
drug availability would be reduced.” (Sen. Com. on Judiciary, com. on Assem. Bill 3165
(1983-1984 Reg. Sess.) pp. 2-3.)
3 When the Legislature enacted the Clandestine Laboratory Enforcement Program in
1986 it specifically declared “that there has been a recent and rapid expansion in
clandestine laboratories illegally producing a variety of controlled substances. These are
increasingly sophisticated operations, frequently located in rural areas or working across
jurisdictional lines, which pose substantial dangers to the general public from fire,
explosion, and the toxic chemicals involved. . . . ” (§ 11640.)
11
The report explained the bill would include within its scope the “manufacture” of
concentrated cannabis, or hashish, but not the cultivation of marijuana using chemical
fertilizers. The report to the Senate Committee on the Judiciary states “the bill is
intended to cover the chemical manufacturing or processing of controlled substances. As
they interpret it, the term would cover the processing of hashish, but would not
encompass the sophisticated cultivation of marijuana by use of chemical fertilizers.”
(Sen. Com. on Judiciary, com. on Assem. Bill 3165 (1983-1984 Reg. Sess.) pp. 3-4.)
The report specifies all controlled substances were included within the prohibition
on manufacturing controlled substances. “This bill would make the manufacture of any
controlled substance a serious felony punishable by a 3, 5 or 7 year prison term. This
approach is to be contrasted with current law which prohibits the manufacture of only
selected controlled substances.” (Sen. Com. on Judiciary, com. on Assem. Bill 3165
(1983-1984 Reg. Sess.) p. 5, underlining in original.)
Assembly Bill 3165, which introduced the measure to add section 11379.6, passed
in both the Assembly and Senate in 1984 before it was vetoed at the author’s request for
unrelated technical reasons. A nearly identical version of Assembly Bill 3165 was
reintroduced and passed the following year as Assembly Bill 252, enacting section
11379.6. (Stats. 1985, ch. 3, § 8; see also, Historical and Statutory Notes, 40, pt. 2
West’s Ann. Health & Saf. Code (2007 ed.) foll. § 11379.6, p. 530.)
This background serves to reinforce our view that (1) the Legislature intended
section 11397.6(a) to apply to the manufacture of “any controlled substance,” including
concentrated cannabis when produced through chemical extraction;4 (2) the “chemical
extraction” referred to in section 11379.6(a) would apply, for example, to the use of
solvents, but would not include use of water or fertilizers in the cultivation of marijuana
4 The, “Except as otherwise provided by law,” language at the beginning of section
11379.6(a), may well, as Bergen suggests, constitute an exception for persons and
businesses licensed by the California State Board of Pharmacy and registered with the
federal Drug Enforcement Administration and/or for persons and entities engaged in the
business of dealing with controlled substances who first obtain a permit from the
California Department of Justice. (See, § 11106, subd. (a).)
12
or the horticultural aspects of producing marijuana; and (3) the Legislature intended to
punish more harshly the use of chemicals in the manufacture of controlled substances
precisely because of the dangers to the public posed by the use of volatile and/or toxic
chemicals in the production process.5
Bergen’s acts fit squarely within section 11379.6(a)’s proscriptions.6 Bergen used
the solvent butane to extract marijuana resin in producing concentrated cannabis. Butane
is a flammable solvent as evidenced by its use in cigarette lighters and the like. He
manufactured and chemically processed the concentrated cannabis in a lab located in a
house situated in a residential community. Bergen’s activities thus posed a risk of fire to
the residence and to the public at large. Bergen’s prohibited activities satisfy the criteria
for a conviction of section 11379.6(a) and subject him to its greater penalty provisions.
(People v. Coria, supra, 21 Cal.4th at p. 879.)7 Bergen’s arguments to the contrary lose
5 Penal Code section 4 states, “The rule of the common law, that penal statutes are
to be strictly construed, has no application to this Code. All its provisions are to be
construed according to the fair import of their terms, with a view to effect its objects and
to promote justice”. We see no reason to apply any different standard of statutory
interpretation to a crime in any other code, in this case the Health and Safety Code.
6 As Bergen correctly points out, the Compassionate Use Act of 1996 (§ 11362.5 et
seq.) provides a defense for qualified patients and their primary care givers to charges of
possession of marijuana for personal medical use (§ 11357) and to charges of cultivation
of marijuana for medical use (§ 11358). The act, however, provides no defense to a
charge of producing concentrated cannabis by chemical extraction. (See § 11362.5, subd.
(b)(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”].) Accordingly, the Compassionate Use Act has no
application to the present appeal.
7 Bergen attempts to refute this conclusion. Bergen claims that to sustain a charge
under section 11379.6(a) the evidence must show either a chemical change as a result of
the manufacturing process or evidence he started with a substance which was not itself a
controlled substance. Bergen points out, he started with marijuana and ended with a
component of marijuana and for this reason, Bergen argues, section 11379.6(a) is
inapplicable.
Bergen relies on CALCRIM No. 2330 for this argument. CALCRIM No. 2330
states an element of a manufacturing offense under section 11379.6(a) is that the
“defendant engaged in the synthesis, processing, or preparation of a chemical that is not
13
sight of the fact he was not simply charged with producing or processing concentrated
cannabis from marijuana plant material. He used a flammable solvent in the process of
extracting the marijuana resin. It is this act—the use of a chemical in the extraction
process—which formed the basis of the charge for manufacturing concentrated cannabis
under section 11379.6(a).8

This entry was posted on Thursday, February 12th, 2009 at 2:24 am

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