Does a district attorney have power to restrict the exercise of a magistrate's power pursuant to section 17, subdivision 5 of the California Criminal Code?

The district attorney, ⁴ relying primarily on People v. Padfield (1982) 136 Cal.App.3d 218, 185 Cal.Rptr. 903, contended below that the statute itself gave petitioner no right to participate in a diversion program, but merely authorized local communities to institute such programs, and to develop eligibility criteria as to which the statute is concedely silent.

The superior court, in a ruling not free from ambiguity, appears to have based its denial of the peremptory writ upon what it perceived as the ultimate fairness of the guidelines. Recognizing that our high court in Esteybar v. Municipal Court (1971) 5 Cal.3d 119, 95 Cal.Rptr. 524, 485 P.2d 1140 held that a prosecutorial power restricting the exercise of a magistrate's discretion pursuant to section 17, subdivision (b)(5) was unconstitutional as violative of the separation of powers, the court nevertheless opined that, since "wobbler" defendants originally charged as misdemeanants are also initially ineligible for diversion, the guidelines are free from constitutional

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