Squier

Defendant appeals after a misdemeanor conviction of possession of less than one ounce of marijuana. (Health & Saf. Code, § 11357, subd. (b).) We transferred the case to this court pursuant to rule 62(a), California Rules of Court to settle an important question of law, to wit, whether diversion from criminal proceedings under Penal Code section 1000 is available for a first such offense. With certain additions and modifications, we adopt and partially publish the opinion of the appellate department of the superior court, authored by Judge Garbolino with the concurrence of Judge Roeder and Judge Gaddis, quoted as follows:

I

Defendant asserts that the court below erred in its interpretation of whether defendant could be allowed to be diverted pursuant to section 1000. Statutory diversion is governed by section 1000 et seq.

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Section 1000 subdivision (a)[] provides that diversion shall be applicable for certain listed drug offenses if “it appears to the district attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, . . . .” that the defendant meets six qualifying factors. [Italics added.]

Health and Safety Code section…