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Name: People v. Ward
Case #: B200354
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 10/01/2008

Health and Safety Code section 11351.5, which provides a higher sentence for possession of cocaine base, does not violate a defendant’s rights to due process or to equal protection. Appellant was convicted of sale of a controlled substance and possession of cocaine base for sale. He argued on appeal that the greater sentence for possession of crack cocaine for sale (Health & Saf. Code, § 11351.5) versus possession for sale of powder cocaine violates substantive due process and equal protection. The due process argument complained the distinction does not rationally serve a legitimate state interest. The equal protection challenge alleged the statute does not withstand strict scrutiny because it does not serve a compelling state interest. As to the first claim, the court rejected the premise of appellant’s argument that the drugs are the same. While both are forms of cocaine, their chemical compositions are different. The court then sided with the many federal cases rejecting the argument that the distinction between the two forms of cocaine is irrational. Because crack is smoked, it has a faster, more intense effect which, in turn, causes a greater desire for more. And because it is cheaper it is accessible to more people, causing a larger distribution problem. The court did recognize that racial sentencing disparities have resulted from the different treatment of the drugs, but stated that, while this may motivate legislative action, it does not establish there is no rational basis to distinguish between them for sentencing purposes. As to the latter claim, the appellate court noted that the rational basis test, not strict scrutiny, applies to equal protection challenges based on sentencing disparities. (People v. Wilkinson (2004) 33 Cal.4th 821.) In any event, appellant’s equal protection claim fails because he failed to show that the law treats similarly situated persons in an unequal manner.