Martinsen

Michael Brian Martinsen appeals from a judgment of conviction of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)). The principal issue on appeal is whether the trial court erred in denying defendant’s motion to compel referral for drug diversion under Penal Code section 1000. For reasons set forth below, we affirm.

Background

Defendant was arrested for the instant offense on August 3, 1985. Prior to his arrest, he had suffered at least two misdemeanor convictions for driving under the influence of alcohol (Santa Clara County Mun. Ct. Nos. C8283094 and C8467321). On each occasion, defendant was placed on probation for a three-year period, fined and required to serve a county jail sentence. At the time of his arrest, probation in both cases had been summarily revoked.

On February 4, 1986, defendant appeared before the municipal court with a request to modify his probationary status. The court granted defendant’s request. In each case, probation was reinstated, the balance of the fine was cancelled, probation was terminated and defendant was remanded to custody to serve a jail sentence.

Thereafter, defendant moved to have the superior court refer the…