DIVERSION - PROPOSITION 36 DIVERSION PROGRAM AND CA PENAL CODE SECTION 1000 ET SEQ. DEFERRED ENTRY OF JUDGMENT PROGRAM
PROPOSITION 36 DIVERSION PROGRAM In 2000, California voters enacted Proposition 36, also known as the “Substance Abuse and Crime Prevention Act of 2000,” of which the purpose is to allow individuals convicted of a qualifying nonviolent drug possession offense to be “diverted” from potential incarceration by substituting probation and a substance abuse treatment program. An added benefit is that an individual who qualifies thereby can avoid the negative consequence of having a drug conviction on his/her criminal record because the indictment/complaint can be dismissed upon successful completion off the terms of the probation/drug treatment program and it will thus appear that the arrest and conviction never occurred. It is important to note that the trial judge does have discretion to require a defendant under this program to contribute financially to his/her costs of the drug treatment program, so long as that individual is reasonably able to do so. Proposition 36 became effective July 1, 2001 and has been codified in the California Penal Code (herein, “CA PC”). Eligibility for Proposition 36 Probation: In order to qualify for the Proposition 36 diversion program, the court will look at both the current offense(s) charged, as well as prior offenses that the defendant committed. Probation under this program is only applicable to those convicted of an offense for nonviolent drug possession. CA PC 1210(a) defines a “nonviolent drug possession offense” as “the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code.” Restrictions on Eligibility for Proposition 36 Diversion Program The following are excluded from the above definition of a nonviolent drug possession offense and/or are ineligible for probation under Proposition 36 (this list is non-exhaustive):
Possession for sale, production, or manufacturing of any controlled substance;
Possession of controlled substance/drugs/drug paraphernalia in a prison or other similar place where prisoners are kept;
Cultivation of marijuana for personal use;
Maintaining/opening a place to engage in the illegal use/sale of a controlled substance;
Being armed with a loaded, operable firearm while also in possession of a controlled substance;
Forging/presenting a forged prescription to acquire a controlled substance;
Having a previous conviction of “one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7” unless it has been five years or more since that conviction and “the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person.”;
Having a previous conviction of a misdemeanor unrelated to the use of drugs, or any felony, in the same proceeding as one where he/she was convicted of a nonviolent drug possession offense;
One who refuses drug treatment as a condition of probation for this current probation;
One who has “two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210…”;
Consequence of violating probation under the Proposition 36 diversion program: Note that if probation is revoked under this program, from violation of probation or other valid reasons, the defendant may face more serious criminal penalties, including but not limited to incarceration.
CALIFORNIA PENAL CODE SECTION 1000, ET SEQ. DEFERRED ENTRY OF JUDGMENT PROGRAM
Enacted January 1, 1997, CA PC 1000, et seq. allows defendants who are charged with certain specified drug-related offenses (refer to full statute for specifics) to defer entry of judgment and instead be referred to a qualifying drug treatment program. Just like with the Proposition 36 Diversion Program (discussed above), upon successful completion of this deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred, thereby being excluded from the defendant’s public criminal record. This deferred entry of judgment, when applicable, is applied in lieu of trial, in that the court may grant deferred entry of judgment so long as the defendant pleads guilty to the specified charges, waives his/her right to a speedy trial/speedy preliminary hearing, successfully completes the requisite program requirements. This cannot occur for at least 18 months, but no later than 3 years, from the date that the defendant was referred to the program, at which time the court shall dismiss the charge/charges against the defendant. Eligibility for Deferred Entry of Judgment Program: During a preliminary investigation to determine whether a defendant is someone who will benefit from education, treatment, or rehabilitation, if so directed by the court, “the probation department shall make an investigation and take into consideration the defendant's age, employment and service records, educational background, community and family ties, prior controlled substance use, treatment history, if any, demonstrable motivation, and other mitigating factors.” In order to qualify under these deferred entry of judgment statutes, all of the following must apply to the defendant:
The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense.
The offense charged did not involve a crime of violence or threatened violence.
There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision.
The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed.
The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense.
The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.
Consequence of failure to successfully complete the program
Note that if any of the following occur, the court shall render a finding of guilt to the charge/charges pled, enter the judgment, and schedule a sentencing hearing:
Defendant fails to complete the drug treatment program and/or other required condition;
Defendant is not benefitting from education, treatment, or rehabilitation;
Defendant is convicted of a misdemeanor that reflects defendant’s propensity for violence;
Defendant is convicted of a felony;
Defendant engages in criminal conduct rendering him or her unsuitable for deferred entry of judgment;
MAJOR DIFFERENCES BETWEEN PROPOSITION 36 DIVERSION PROGRAM AND CA PC SECTION 1000 ET SEQ. DEFERRED ENTRY OF JUDGEMENT PROGRAM
Applies generally to nonviolent drug-related offenses, with various exceptions.
Contemplates a trial, conviction, and the entry of judgment before the defendant is eligible for probation and drug treatment under this program.
Drug treatment program can only last no longer than 12 months.
Upon defendant’s successful completion of all terms of the program, the indictment/complaint can be dismissed.
Upon defendant’s failure to successfully complete the program, probation may be revoked and the defendant may face more serious criminal penalties, including but not limited to incarceration
Only applies to specified drug-related offenses.
Defendant must enter a guilty plea and waive his/her right to a speedy trial/speedy preliminary hearing. Judgment itself is not actually entered at that time – it is deferred while the defendant participates in the program.
Criminal proceedings suspending for 18 months to 3 years and defendant is referred to a drug treatment program.
Upon defendant’s successful completion of all terms of the program, the court may dismiss the charge(s) against the defendant, and may also order the related records/files sealed upon motion or any party to the case or on the court’s own motion. After the passage of three years, if the court has taken no affirmative action to either terminate the program or to dismiss the charges upon successful completion, the matter does not automatically terminate and the court continues to have jurisdiction over the matter. The arrest on which judgment was deferred will be deemed never to have occurred.
Upon defendant’s failure to successfully complete the program, court will render a finding of guilt to the charge/charges pled, enter the judgment, and schedule a sentencing hearing.
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