Marsh

On June 18, 1980, pursuant to a search warrant, defendant’s residence was searched, netting 25 marijuana plants, pills, marijuana seeds and paraphernalia.

Although we do not have the record of the proceedings before the magistrate, from the transcripts of the hearings before the superior court it appears that the case was referred to the probation office for a recommendation regarding diversion pursuant to Penal Code section 1000. The section applies if the cultivation of marijuana is for personal use and the defendant has had no prior felony conviction within five years prior to the commission of the charged offense. The probation office reported that the case could not be diverted because the defendant suffered a conviction for receiving stolen property on September 8, 1975, some four years and nine months before the commission of the instant offense. Based upon this, the magistrate declined to divert.

On October 6, 1980, an information was filed charging defendant in count one with cultivation of marijuana (Health & Saf. Code, § 11358), and in count two with possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)).

Pursuant to a plea bargain…