Sharp

At issue in this case is whether a defendant convicted of cultivating marijuana (Health & Saf. Code, § 11358) is eligible for drug treatment rather than incarceration under Proposition 36 (Pen. Code, § 1210 et seq.) if the cultivation was for personal use. We agree with the trial court that cultivation of marijuana does not meet the statutory definition of a “nonviolent drug possession offense” because it is not “possession, use, or transportation for personal use” or “being under the influence” of a controlled substance. (Pen. Code, § 1210, subd. (a).) Rather, cultivation falls within the excluded offenses of “ possession for sale, production, or manufacturing.” (Ibid.) We affirm the judgment.

According to the probation report, defendant was detained for a search warrant after he left a residence that officers had under surveillance. During an interview defendant gave the officers consent to search another residence that his mother owned. He told the officers he had a key to that residence, paid the tenant $200 rent, and he and the tenant were cultivating marijuana in a room at the residence. In a protective sweep search, officers found approximately 20 marijuana plants…