P v. Descano (1st Dist., Div.4) That Proposition 47 Did Not Include H&S 11358 Does Not Violate the Equal Protection Clause

Mr. Descano grew some marijuana, was caught, and convicted of violating California Health & Safety Code section 11358, cultivating marijuana, a felony.

Descano then petitions the trial court under PC 1170.18 to reduce his conviction to a misdemeanor.  The petition is denied.  He appeals.

A panel of First District justices affirms.  This is no surprise.  Proposition 47 of the November 2014 election enacted no changes to HS 11358, nor did it add or amend any other section which would make Descano's 11358 conviction a misdemeanor if committed post-Proposition 47.

So Descano counters with an equal protection argument.  This argument gets no traction because to violate the equal protection clause the government must treat similarly situated groups differently and this panel believes people convicted of different crimes are not similarly situated for equal protection purposes.

The decision is correct.  Which is not to say California's marijuana laws aren't imbecilic.  They are.  Case in point.  Having one of the following items in your room is a straight felony for which you would be arrested and could go to jail for 3 years, having the other one will get you, at most, an infraction ticket for $125.

                     A                                                                                   B

Take a guess.