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Name: People v. Sharp
Case #: C039242
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/29/2003
Subsequent History: None

Appellant was convicted of cultivating marijuana, and in this appeal, challenged the court’s refusal to treat the case as a Proposition 36 sentencing case. Appellant contended that Prop 36 applies to a conviction for cultivation of marijuana for personal use, as it is a nonviolent drug possession offense and falls within the purpose of Proposition 36. The appellate court here disagreed and affirmed. Under the language of the statute, cultivation is not a nonviolent drug possession offense because the ordinary meaning of cultivation is not possession or being under the influence. Cultivation requires more than possession, it is the production of marijuana. The fact that cultivation is a diversion-eligible offense was not dispositive, since the statutes are not identical in scope and the drafters of Proposition 36 did not intend to pattern it after the diversion statutes. Here, not only is the drug offense at issue missing from the statute, it appears to have been deliberately excluded.