People v. Superior Ct. of Calaveras Cty.

—Petitioner filed a petition for writ of prohibition on September 2, 1977, alleging that the respondent court lacked jurisdiction to hold a hearing to determine whether the real parties in interest, Gaiy Hayle and Jean Barclay, intended to cultivate marijuana for personal use within the meaning of the diversion statute (Pen. Code, § 1000 et seq.). On September 2 we ordered all further proceedings in the trial court stayed pending filing of points and authorities in opposition to the petition and further order of this court. Opposition by real parties in interest was filed on October 14, 1977.

The trial court is without jurisdiction to hold a hearing to determine whether the charged offense of cultivation of marijuana is a divertible offense within the meaning of section 1000 of the Penal Code. It is the district attorney’s function to do the preliminary screening to determine eligibility for diversion. (Pen. Code, § 1000, subds. (a), (b); Sledge v. Superior Court (1974) 11 Cal.3d 70, 75 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ].) His decision is not subject to judicial review prior to trial. (Id., at pp. 75-76.)

Application for writ of prohibition having been made on due…