Dyas

This appeal involves the validity of a prosecutor’s determination of a defendant’s ineligibility for diversion pursuant to Penal Code section 1000, subdivision (a)(3), based solely on suppressed evidence. We will conclude that evidence that has been ordered suppressed following a successful motion under section 1538.5 cannot support such a determination.

Defendant Clarence Dyas was accused of possession for sale of a controlled substance, methalphedadate (Health & Saf. Code, § 11378), and possession of a controlled substance, phencyclidine (Health & Saf. Code, § 11377). Following defendant’s successful motion to suppress the evidence of the methalphedadate pills, pursuant to section 1538.5, subdivision (i), the charge of possession for sale was dismissed. Defendant pled not guilty to the simple possession charge and requested diversion. The prosecutor filed a declaration, with supporting documents, that defendant was ineligible for diversion under section 1000, subdivision (a)(3), on the ground that the evidence (which had been suppressed) of defendant’s possession for sale of the methalphedadate pills constituted “evidence of a narcotics offense (a violation of Health…