Burns

In this case we must determine whether the five-year period in former Penal Code section 1000, subdivision (a)(5), which indicates that a defendant is eligible for drug diversion only if he has not previously been diverted within five years of the new arrest, dates from the initial grant of diversion or from the completion of the diversion program. We conclude that a defendant must have completed the diversion program five years before the new arrest in order to be eligible for a second diversion.

Facts and Procedural History

On July 21, 1995, a complaint was filed charging defendant Robbie Owen Bums with being under the influence of cocaine in violation of Health and Safety Code section 11550, subdivision (a), a misdemeanor, on July 6, 1995. Defendant entered a plea of not guilty on July 27. On October 6, a diversion eligibility hearing was held as defendant contested the prosecutor’s determination that he was ineligible for diversion. The court denied the request for pretrial review of the prosecutor’s determination of ineligibility. At defendant’s request, the prosecutor stated on the record that the ineligibility determination was based on former section 1000,…