Harvey

An information charged petitioner with burglary, grand theft, receiving stolen property and possession of marijuana. Petitioner sought diversion as to the marijuana count and the probation officer filed a report recommending diversion. The trial court rejected the diversion motion. Petitioner seeks a writ of prohibition to prevent his trial on the marijuana count, charging abuse of discretion.

The trial court’s order was in excess of jurisdiction because it rested upon an error of law, thus amounting to a failure to exercise the discretionary factors designated by law.

In denying diversion, the trial judge declared that persons who are involved in marijuana because of lack of education or through ignorance could be proper candidates for diversion, but that the evidence showed petitioner did not lack understanding and could take marijuana or leave it alone, thus that petitioner would not “benefit” from diversion.

The diversion law is confined to prosecutions for enumerated narcotics offenses; it does not extend to other crimes even when charged concurrently with an enumerated narcotics offense (Pen. Code, § 1000, subd. (a)). The procedure is not limited to those who…