Tafoya

This appeal is taken by the People from an order which credited defendant pursuant to Penal Code section 2900.5 with time voluntarily spent in a drug rehabilitation program. [1] Upon reviewing the procedural facts of the case (which are undisputed) and the applicable law, we conclude that the order must be reversed.

On February 11, 1985, a misdemeanor complaint was filed against defendant charging him in count I with violation of Health and Safety Code section 11550, subdivision (a) (being under the influence of a controlled substance, an opiate), and in count II with violation of Vehicle Code section 23152, subdivision (a) (driving under the influence of alcohol, a drug or the combined influence of both). Defendant pleaded not guilty to the charges but later withdrew his plea on count II and pleaded nolo contendere. He received a standard sentence for a first-time driving-under-the-influence conviction. On count I, the case was sent out for preparation of a probation report under Penal Code section 1000.2. The probation report found defendant eligible but not suitable for diversion. Diversion was denied in June 1985, but granted one month later by a…