In Unzueta v. Ocean View School Dist. (1992) 6 Cal. App. 4th 1689, the teacher was charged with an " 'optional leave of absence offense' " within the meaning of section 44940, subdivision (b), namely possession and use of cocaine. Pursuant to section 44940, subdivision (e), the school district placed him on compulsory leave. He completed a diversion program and the charges against him were dismissed under former Penal Code section 1000.3. After resuming employment, he filed a petition for a writ of mandate under section 44940.5, subdivision (c), requesting backpay for approximately two years because the charges against him had been "dismissed." The trial court granted the petition. On appeal, a majority of the court found that under section 44940.5, subdivision (c), the teacher was entitled to backpay for the period of time during which he had been suspended and was completing diversion. But the court remanded the matter to determine an offset for amounts actually earned by the teacher during the relevant time. The majority in Unzueta acknowledged that section 44940.5, subdivision (c), carries a connotation that the school district subject to its provisions has unlawfully or erroneously suspended a teacher who is later found to be innocent of the charges. The court nonetheless concluded that the statute did not on its face distinguish between different types of dismissals. Whether the defendant is dismissed pursuant to Penal Code section 1000.3, or pursuant to Penal Code section 1385, or after a trial on the merits, the court found that "a dismissal is a dismissal" for purposes of section 44940.5. ( Unzueta, supra, 6 Cal. App. 4th at p. 1695.) The court reasoned that the diversion statute and section 44940.5 must be construed together and harmonized if possible. The court stressed that former Penal Code section 1000.5 (now Pen. Code, 1000.4) provided that after diversion is successfully completed, "the arrest upon which the diversion was based shall be deemed to have never occurred." ( Unzueta, supra, 6 Cal. App. 4th at p. 1694.) Furthermore, the record pertaining to such an arrest " 'shall not . . . be used in any way which could result in the denial of any employment, benefit, license, or certificate.' " (Ibid., by Unzueta.) The court found this language " 'indicative of an intent by the Legislature that the protection of section 1000.5 be given the broadest application.' " ( Id. at p. 1696; B.W. v. Board of Medical Quality Assurance (1985) 169 Cal. App. 3d 219, 232 215 Cal. Rptr. 130.) "Given the language of Education Code section 44940.5, subdivision (c), it would be inappropriate for the judiciary to preclude backpay based upon an event which is '. . . deemed to have never occurred.' Moreover, the District may not use the record of the arrest to deprive the teacher of the 'benefit' afforded pursuant to Penal Code section 1000.5." ( Unzueta, supra, 6 Cal. App. 4th at p. 1696.) The court declined to interpret the language of section 44940.5 to exclude a dismissal pursuant to the diversion statute; however, it invited the Legislature to amend section 44940.5 if it had intended such a result. No changes were made in the statute in response to this invitation. In a dissent in Unzueta, Justice Gilbert found that the result reached by the majority not only did not further the purposes of the statutes but also defied common sense. He wrote that "it would be absurd and unjust to allow Unzueta to recover backpay. . . The purpose behind Education Code section 44940.5 is to protect students from teachers who have committed certain offenses. The purpose behind the drug diversion statute is to rehabilitate first-time drug offenders and to spare them the stigma of a criminal record. Penal Code section 1000 and Education Code section 44940.5 were not designed to provide teachers with an additional reward of backpay for the time spent on a drug diversion program." ( Unzueta, supra, 6 Cal. App. 4th at pp. 1703-1704, dis. opn. of Gilbert, J.).) In Justice Gilbert's view, section 44940.5, subdivision (c), was intended only to make whole a teacher who is suspended for certain criminal charges but who is later found to be innocent. A dismissal pursuant to the diversion statute does not carry with it the presumption of innocence. He concluded that a literal reading of section 44940.5 to include diversion dismissals created a result "contrary to public policy, contrary to legislative intent, . . . and contrary to our shared notions of justice." (Unzeita, at p. 1705.)