Cultivating Marijuana Conviction and Prop 47 – Eligible?

If one cultivates marijuana for personal use only, is such a conviction eligible for relief under Proposition 47?  After all, the context of the conduct is not for sales to others, which is ineligible for relief under Proposition 47.

Such a question was presented by Vincent James Descanso to the Sonoma County Superior Court in December, 2014, just one month after California voters passed Prop 47, known as the Safe Neighborhoods and Schools Act.

Mr. Descanso was arrested in June, 2013 after police discovered that he was cultivating marijuana in a local state park.  Descanso diverted water from a tributary of Willow Creek to water 40 to 50 marijuana seedlings.  At the time of his arrest, Descanso did not have a valid Proposition 215 card to use medical marijuana.  His card had expired three weeks earlier.  Thirty pounds of marijuana were seized from Descanso.

Descanso was subsequently charged with cultivating marijuana (a violation of Health and Safety Code § 11358), carrying a concealed weapon (Penal Code § 25400(a) (1)), possessing methamphetamine (Health and Safety Code § 11377(a)), possessing a firearm inside a state park (Cal. Code of Regulations, Title 14, § 4313), polluting public water (Fish and Game Code §5652), and entering onto land for the purpose of injuring property of the land owner (Penal Code § 602 (k)).

At the arraignment, Descanso accepted a plea bargain wherein he pled no contest to cultivating marijuana, a felony, and an amended count of diverting a water stream (Fish and Game Code § 1602).  All other counts were dismissed.  He was then placed on three years of formal probation.

In December, 2014 Descanso filed his petition for resentencing under Penal Code § 1170.18 to reduce his felony conviction to a misdemeanor.  The trial court denied the petition on grounds that defendant’s cultivation conviction (Penal Code § 11358) was not an enumerated offense eligible for resentencing under Proposition 47.

Mr. Descanso appealed the ruling to the First Appellate District, arguing that not reducing his cultivation conviction violated his constitutional right to equal protection.  He argued that those who cultivate marijuana are similarly situated to people who “possess” marijuana.  People convicted of a felony conviction for possession of marijuana are eligible under Prop 47 to have the conviction reduced to a misdemeanor, unless the convicted person has prior convictions for specified violent or serious crimes, which Descanso did not have.

In the opinion People v. Vincent James Descanso (2016 DJDAR 1978), the First Appellate District affirmed the trial court’s ruling, thus denying Mr. Descanso’s appeal.  In reaching this conclusion, the court set forth the standard for establishing an equal protection claim: defendant must show that “the state has adopted a classification that affects two or more similarly situated groups in a unequal manner.  “In re Eric J. (1979) 25 Cal.3d 552, 530.

If the “similarly situated” standard is met, the judge then looks at the classification.  If the classification is based on “fundamental interests or is based on gender,” it will pass or survive an equal protection challenge “if the challenged classification bears a rational relationship to a legitimate state interest.”  People v. Hofsheier (2006) 37 Cal. 4th 1185, 1200.  

As to the challenge by Descanso to Prop 47, the First Appellate District noted that “persons convicted of different crimes are not similarly situated for equal protection purposes.”  People v. Macias (1982) 137 Cal. App. 3d 465, 473.  Put another way, “it is one thing to hold . . . that persons convicted of the same crime cannot be treated differently.  It is quite another to hold that persons convicted of different crimes must be treated equally." People v. Jacobs (1984) 157 Cal. App. 3d 797, 803 (emphasis is original).

Moreover, the appellate court noted, cultivation requires more than simple possession: it includes planting, cultivating, harvesting, drying and processing marijuana. Health and Safety Code § 11358.  Cultivation of marijuana is the production of marijuana.  Like manufacturing, it is considered a more serious offense than possession.  It is the beginning of “a process to which ultimately places an illegal substance in the hands of great numbers of consumers.” People v. Sharp (2003) 112 Cal. App. 4th 1136, 1140.

Accordingly, the appellate court denied the appeal of Descanso, finding Prop 47 was not unconstitutional as alleged by Descanso.

For more information about Proposition 47, please click on the following articles:
  1. Does Proposition 47 (Prop 47) Apply Automatically or Must One Affirmatively Request Reduction of an Offense?
  2. Prop 47 Resentencing – Who Has Burden of Proof to Show Eligibility?
  3. Does Prop 47 Change a Felony Failure to Appear to a Misdemeanor?
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