Pre-trial Diversion

Pretrial Diversion for Drug Offenses Under California Penal Code 1000

If you are charged with a “drug”, “controlled substance” or “narcotics” crime, you might be worried about the possible consequences. Will I be found guilty? If so, will I have to go to jail? What will happen to my record when all is said and done? Section 1000 of the California Penal Code (“PC 1000”) allows some people arrested with drug crimes to avoid the collateral consequences of a criminal conviction.

How does Pretrial Diversion work for drug offenses?

Under PC 1000, a defendant charged with certain drug crimes can avoid both jail time and a criminal conviction on their record by participating in drug treatment. When this happens, the court orders a “deferred entry of judgment.”

What is a “deferred entry of judgment”?

A deferred entry of judgment is key to making sure that your criminal record stays clean. Generally, when a person gets arrested and charged with a criminal offense, at some point they will enter a plea of either “guilty” or “not guilty” to those charges. If they enter a plea of “not guilty”, fight the case at trial, and are found “not guilty” of all of the offenses charged, then the defendant will have no convictions on their record from that case. But if the defendant pleads “guilty” to any offenses, or if the defendant is found guilty of any offenses after trial, then they will have a conviction on their record and the judge will have to order the defendant to serve some sentence for that conviction, which could include jail time.

Before PC 1000, many defendants charged with drug offenses were limited to these choices when handling their cases, all of which involve some risk of jail time and a criminal conviction on their record. Even defendants who were offered probation in exchange for a guilty plea were justifiably concerned about the long-term implications of a criminal conviction on their record; staying out of prison was of course desirable, but a guilty plea meant a conviction and that could mean hardship when searching for a job.

But under PC 1000, the defendant can enter a plea of “not guilty” while agreeing to undergo some kind of drug treatment while under the court’s supervision. In this way, the defendant can get the benefit of a probationary sentence-staying out of jail-without letting a criminal conviction go on their record. This is because the defendant is pleading “not guilty”, and the court has not found the defendant guilty of anything because, rather than hold a trial to see what the defendant is guilty of, the court instead “defers entry of judgment” to wait and see how the defendant does on drug treatment. Any potential trial is then put off, so the programs specified under PC 1000 are considered “pretrial diversion”, because the point is to “divert” certain defendants charged with drug crimes away from traditional procedures that, again, can result in jail time or a tainted criminal record.

What do I “give up” when I agree to deferred entry of judgment under PC 1000?

In many criminal cases, a plea of “not guilty” means that the defendant is refusing to give up any of their rights, forcing the prosecutor to prove the case against them in a certain way. A plea of “not guilty” under PC 1000, however, requires the defendant to waive their rights to speedy trial, a preliminary hearing (where probable cause to make the defendant stand trial is determined), and the right to a jury trial. 

Perhaps most importantly, when you agree to pretrial diversion, you agree to participate in a type of drug treatment for no less than 12 months and no more than 18 months. The probation department will put together a report about you to help the court determine which drug treatment programs are most appropriate, and the court will assign you to a program based on the probation department’s report and recommendations. 

If you successfully complete drug treatment to the court’s satisfaction, then the court will dismiss your case! And because you never pled guilty to anything, you still get to say that you were never convicted or found guilty of anything related to what you were originally arrested or charged for. This is why pre-trial diversion and drug treatment under PC 1000 is a desirable outcome for many people charged with drug offenses in California.

What happens if I agree to pre-trial diversion under PC 1000 but fail to complete it?

If you fail to complete pre-trial diversion under PC 1000, then you risk a criminal conviction for the offenses you were originally charged with, as well as jail time. Remember, however, that a person who does pre-trial diversion under PC 1000 has previously pled “not guilty” to the offenses charged, because that is what is needed to avoid a criminal conviction. But, the defendant still gives up many important tools that are often used to “fight” a criminal case, like the preliminary hearing, speedy trial, and right to trial by jury. This means that, if you agree to perform pre-trial diversion, but fail it, then your options are either to plead guilty or “fight” the case in a trial without a jury, or a “bench trial” where only the judge gets to decide if you are guilty or not. So, a failure to complete drug treatment does not mean that you will “automatically” be found guilty, but it does mean that you will lose a lot of very important tools for fighting your case. This means that a person who agrees to pre-trial diversion but fails to complete it is in a worse position than a defendant who rejects pre-trial diversion outright.

Can I resolve my case under PC 1000 and avoid a criminal conviction?

Only certain cases are eligible for pre-trial diversion under PC 1000, and you cannot participate in pretrial diversion if you have previously convicted of some offenses already.

Charges eligible for PC 1000 diversion

Generally, PC 1000 diversion is allowed only for cases involving possession of controlled substances or drugs for personal use. Charges for unlawful sale, distribution or delivery of illegal drugs are not allowed for PC 1000 diversion.

The following criminal charges can be resolved with PC 1000 diversion:

  • Possession of a Controlled Substance under PC 11350 or Business and Professions Code 4060
  • Unlawful possession of cannabis/marijuana under PC 11357
  • Possession of drug paraphernalia under PC 11364
  • Aiding or abetting the use of an unlawful controlled substance under PC 11365
  • Unlawful possession of prescription sedatives under PC 11375 (b)(2)
  • Unlawful possession of methamphetamines under PC 11377
  • Being under the influence of a controlled substance under PC 11550
  • Possessing an open container of marijuana or cannabis in a motor vehicle under VC 23222(b)
  • Unlawful cultivation/growing of cannabis under Health and Safety Code 11358 (provided that the substance was grown for personal use only)
  • Possessing or using a forged/fraudulent prescription under Health and Safety Code 11368 (only to obtain drugs for personal use)
  • Soliciting someone to commit a crime facilitating someone else’s personal use of narcotics under PC 653f(d)
  • Possessing toxic substances for inhalation or “huffing” under PC 381
  • Lewd conduct related to being under the influence of a controlled substance under PC 647 (f)

Defendants eligible for PC 1000 diversion 

If the defendant is charged with only the above offense(s), then they will be eligible for pre-trial diversion under PC 1000 if:

  • They have no other convictions for any of the above crimes within five years of the offense date for the current case
  • The current case does not involve a crime of violence or threatened violence
  • There is no evidence in the current case that the defendant committed a more serious drug offense, other than the ones listed above that are eligible for PC 1000 diversion AND
  • The defendant has no prior felony conviction within five years of the offense date for the current case.

For example, if the defendant is arrested and charged with unlawfully growing marijuana for personal use on January 1, 2018, but was convicted of an unrelated felony on January 1, 2014, then that defendant has a felony conviction “within five years of the offense date” and will not be eligible for PC 1000 diversion. Similarly, if the same defendant were convicted of several felonies before but all are from 2012, at the latest, then those prior felonies are outside of the five year limit and so will not disqualify the defendant. Similarly, if the defendant has other drug convictions within five years of the offense date for crimes that PC 1000 is aimed at, then they might be disqualified as well. Similarly, if the defendant is alleged to have committed more serious drug crimes in the current case or behaved violently, then PC 1000 diversion might be out of reach there, too.

In any case, the prosecutor must review their file to determine whether the defendant is eligible for PC 1000 diversion. The prosecutor must file with the court, in writing, their reasons for why the defendant is or is not eligible.