Williamson

Defendant pled guilty to cultivation of marijuana (Health & Saf. Code, § 11358) following a denial of his request for diversion. The denial was based upon the district attorney’s determination that the amount cultivated was not for “personal use,” a condition of eligibility for diversion (Pen. Code, § 1000). Defendant appeals upon a certificate of probable cause (People v. Padfield (1982) 136 Cal.App.3d 218 [ 185 Cal.Rptr. 903 ]) claiming the district attorney has ventured into forbidden judicial territory. We agree and reverse the judgment.

Facts

Defendant was apprehended in a pickup truck containing 110 marijuana plants 1 foot to 3 feet tall growing in containers. At the preliminary examination he admitted cultivating the marijuana but contended it was for personal use. He sought to rebut the inference of commercial intent with the explanation that anticipated crop losses would leave him with a yield of only five pounds of useable marijuana for his efforts. The district attorney declined to initiate diversion proceedings on the ground the amount of marijuana exceeded the amount for personal use. He contended Penal Code section 1000 endows the prosecutor with the…