Hayes

Defendant was convicted, by his plea of guilty, of possession of cocaine in violation of Health and Safety Code section 11350. He contends, in this appeal, that the district attorney improperly determined him to be ineligible for diversion from prosecution.

We agree, and reverse the judgment of conviction on the ground that the district attorney’s determination that the defendant is ineligible for diversion is not supported by evidence, as required by Penal Code section 1000, subdivision (b), and Sledge v. Superior Court (1974) 11 Cal.3d 70 [ 113 Cal.Rptr. 28 , 520 P.2d 412 ],

The procedural history of the case follows: A complaint was filed in the municipal court accusing the defendant of possession of cocaine, a felony. On February 16, 1983, prior to the preliminary hearing, the district attorney filed a declaration stating, in essence, that he had determined defendant to be ineligible for diversion based on evidence that defendant had engaged in “sales” of narcotics. Defendant was thereafter held to answer the charge in superior court where, on June 15, 1983, he applied for diversion. The superior court denied the defendant’s application. The defendant thereupon pled…