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Name: People v. Descano
Case #: A144477
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 02/25/2016

Proposition 47 does not violate equal protection even though it treats individuals convicted of drug possession crimes more favorably than those convicted of drug cultivation crimes. Descano pleaded guilty to felony marijuana cultivation (Health & Saf. Code, § 11358) and was placed on probation for three years. After Proposition 47 passed, he filed a petition to reduce the conviction to a misdemeanor. The trial court denied his petition. Descano appealed. Held: Affirmed. Proposition 47 reduced a number of drug and theft offenses from felonies to misdemeanors. It also provides mechanisms to reduce old felony convictions for those offenses to misdemeanors. Cultivating marijuana is not among the offenses listed in Proposition 47 and therefore Descano’s felony conviction for that offense is not eligible for reduction to a misdemeanor under Proposition 47. The Court of Appeal disagreed with Descano’s argument that the omission of marijuana cultivation from Proposition 47 violates equal protection because people who cultivate marijuana are similarly situated to people who possess marijuana. Persons convicted of different crimes are not similarly situated for equal protection purposes. “Cultivation requires more than simple possession; it includes planting, harvesting, drying, and processing marijuana . . . . Like manufacturing, it is considered a more serious offense than possession . . . .” (People v. Sharp (2003) 112 Cal.App.4th 1336, 1340.) Although Descano was only cultivating marijuana for personal use, it did not qualify under Proposition 47.

The full opinion is available on the court’s website here: