California's Deferred Entry of Judgment (DEJ) Drug Diversion
Penal Code 1000 PC

Most nonviolent drug offenders could benefit much more from treatment and education than from jail and a criminal record.

Penal Code 1000 PC -- California's deferred entry of judgment ("DEJ") program -- allows just such an alternative.  It's a drug diversion that allows eligible defendants to be "diverted" out of the criminal court system and into a drug rehabilitation program.

In this article, our California drug crimes defense attorneys1 explain the ins and outs of Penal Code 1000 PC by addressing the following:

1. An Overview of Penal Code 1000 PC

1.1. Eligibility

1.1.a. The charged offense(s)

1.1.b. Your personal history

2. Sentencing in Connection with Deferred Entry of Judgment

2.1. Drug treatment

3. Successful Completion of DEJ
4. Alternative California Drug Diversion Programs

4.1. California's Prop. 36

4.2. California drug court

4.3. San Francisco's "back on track" program

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Drug Crimes; Health and Safety Code 11350 HS Personal Possession of a Controlled Substance; Health and Safety 11357 HS Possession of Less than One Ounce of Marijuana; Health and Safety Code 11358 HS Cultivating Marijuana; Health and Safety Code 11364 HS Possession of Drug Paraphernalia; Health and Safety Code 11550 HS California's Under the Influence Law; Vehicle Code 23222(b) California's Driving in Possession of Marijuana Law; Penal Code 647(f) California's Drunk in Public Law; Cocaine; Heroin; Gamma-Hydroxybutyric Acid ("GHB"); Ketamine ("Special K"); Phencyclidine ("PCP"); Methamphetamines; Ecstasy; Marijuana; Codeine; Hydrocodone "Vicodin"; California Sentencing Hearings; California's Proposition 36; and California Drug Courts.

1. An Overview of Penal Code 1000 PC

"Deferred entry of judgment".defined in Penal Code 1000 PC.allows eligible defendants the opportunity to have their criminal proceedings suspended while they attempt to complete a drug treatment program.2

Generally speaking, the defendant enters a guilty plea to the charge(s).  If the judge determines that the defendant is a good candidate for drug diversion, he/she will suspend the criminal proceedings.typically for a period of 18 months, although it may be as long as three years.while the defendant participates in a drug rehabilitation program.3

A drug rehabilitation program is one that has been certified or deemed credible and effective by the applicable county drug program administrator.  The defendant may request to be referred to a program in any county, as long as the program meets this criteria.  All programs include at least some of the following curriculum:

  • an initial assessment of the defendant,
  • a minimum of 20 hours of effective education and/or counseling, and
  • an exit conference which shall reflect the defendant's progress during his/her participation in the program.4

If the defendant successfully completes the program, the judge dismisses the charges and.with only a few exceptions.the defendant may truthfully state that he/she has never been arrested for the charged offense.5

However, if the judge does not believe that the defendant would benefit from treatment.or the defendant does not successfully complete his/her course of treatment.the judge will impose sentence on the charge(s).6

1.1. Eligibility

Before a defendant can participate in California's deferred entry of judgment program, he/she must be eligible to do so.  Eligibility is primarily based on two factors:

  1. the charged offense(s), and
  2. the defendant's personal history.

1.1.a. The charged offense(s)

California drug diversion is only offered in connection with certain "qualifying" offenses.  If your charged offense/offenses are not specifically listed under Penal Code 1000 PC, you will not be able to participate in this deferred entry of judgment program.7

There are essentially two criteria for these offenses:

  1. they must involve personally possessing or using drugs.as opposed to possessing them for sale or actually selling them, and
  2. the crime must not involve any allegations of violence or threatened violence.

The most common examples of these California drug crimes include (but are not limited to) violations of

Some of the controlled substances that are covered by these laws include:

And as San Francisco criminal defense attorney Cameron Bowman20 explains, "Penal Code 1000 PC California's DEJ program is not only applicable to a much wider variety of crimes than its counterpart California Proposition 36 [discussed below in Section 4.1. California's Proposition 36] but is also much less restrictive.  This is because PC 1000 allows convictions for certain offenses that Prop. 36 does not."

These offenses include, for example,

  • cultivating marijuana for your personal use, and
  • forging prescriptions for your personal use.21

1.1.b. Your personal history

Even if the charged offense qualifies you for DEJ, you must still prove that you are personally eligible for drug diversion.  In order to qualify, you cannot have

  1. any prior drug-related convictions,
  2. had your probation or parole revoked without completing your terms and conditions,
  3. participated in a drug diversion or DEJ program within five years prior to the alleged commission of the charged offense, and
  4. any prior felony convictions within five years prior to the alleged commission of the charged offense.22

If you do not meet these criteria, the judge will declare you ineligible for deferred entry of judgment and sentence you on the charged offense(s).

2. Sentencing in Connection with Deferred Entry of Judgment

Once the judge determines that you are a good candidate for Penal Code 1000 PC California's deferred entry of judgment program, you must enter a guilty plea to the applicable charge(s).  At that point, you waive time for the pronouncement of judgment.which means that you give the court permission to postpone sentencing.so that you can participate in drug diversion.23

2.1. Drug treatment

At the court's request, the court's local probation department will conduct an investigation as to what course of treatment is most appropriate.  It will consider factors such as the defendant's

  • age,
  • any employment and/or service records,
  • education,
  • community and family ties, and
  • any prior drug history (including any prior treatment history).

But regardless of what the probation department recommends, the ultimate decision as to what type of treatment should be offered is up to the judge.24

If the prosecutor, probation department or the court believes that you

  1. are failing to adhere to the program,
  2. are not benefiting from treatment,
  3. have been convicted of
  4. a) a felony, or

    b) a misdemeanor that reflects your propensity for violence, or
  5. have engaged in any criminal activity that renders you unsuitable for DEJ,

the judge may enter judgment on the guilty plea and will set a sentencing hearing to determine the appropriate punishment for the charge(s). 25 However, if you successfully complete the program, the court is required to dismiss the charge(s).26

3. Successful Completion of DEJ

What makes drug diversion so attractive is the fact that your criminal charge(s) will be automatically dismissed as long as you successfully complete the program.  Once your charges are dismissed, it is almost as if the arrest legally never occurred.

We say "almost" because there is an exception to this general principle.  You.and the Department of Justice.must disclose the arrest if you apply to become a peace officer.27

Other than that, when you successfully complete your deferred entry of judgment program, "the arrest upon which the judgment was deferred shall be deemed to have never occurred".   This means that

  1. you can truthfully state that you have never been arrested or granted deferred entry of judgment for the offense, and
  2. the arrest record cannot be used in any way to affect your employment or a professional license or certificate.28
4. Alternative California Drug Diversion Programs

In addition to Penal Code 1000 PC California's deferred entry of judgment program, California offers two other drug diversion programs -- Proposition 36 and drug court.  In order to determine which program is best suited to your case and personal needs, be sure to consult with a California drug crimes defense lawyer prior to going to court.

4.1. California's Prop. 36

California Proposition 36 (more commonly referred to as "Prop. 36) is defined in Penal Code sections 1210-1210.1 and in 3063.1 PC (as it relates to individuals on parole).  This, too, is a drug diversion program.

There are four major differences between Prop. 36 and DEJ.

The first is that.as previously mentioned.Penal Code 1000 PC is applicable to a wider variety of drug-related crimes.  And unlike Prop. 36, deferred entry of judgment also allows defendants who have previously been convicted of a serious felony or a violent felony under California's three strikes law to participate in the program.that is, as long as the defendant still meets the requirements set forth under Section 1.1.b. above.29

The second is that once you plead guilty to a Prop. 36, you are placed on formal probation and are subject to a variety of additional terms and conditions.

The third is that if you are eligible under Prop. 36, you are automatically sentenced under its provisions.  However, a judge must decide if you are eligible to participate in DEJ.

The fourth is that once you successfully complete your drug treatment program under Penal Code 1000 PC, your charges are automatically dismissed.  Yet, in a Prop. 36 case, the judge has the discretion to determine whether or not to dismiss your charges.

All in all therefore, PC 1000 is a better form of drug diversion if you have the choice.

4.2. California drug court

California drug court is another drug diversion program.  It is similar to Penal Code 1000 PC and is governed by Penal Code 1000.5 PC.  Like deferred entry of judgment, the successful completion of your drug court treatment program can result in a dismissal of your charge.

The major difference between drug court and DEJ is that if you participate in a drug court diversion program, there is no requirement that you first plead guilty to any offense.  The entire criminal proceedings are suspended while you attempt to complete your treatment regimen.

If you successfully complete your program, the judge will automatically dismiss the charge(s).  If you perform in an unsatisfactory manner, the criminal charges are reinstated, at which point you face formal prosecution.30

4.3. San Francisco's "back on track" program

The San Francisco court system offers a unique program that is referred to as their "back on track" program.  This drug diversion program is specific to

  1. offenders who are 18-30 years of age, and
  2. those who have been arrested for first-time nonviolent low-level drug "sales" charges (that is, charges involving less than 5 grams of controlled substances).

"Back on track" is a very rigorous program.  Prospective participants must complete a six-week screening phase which includes 120 hours of community service to demonstrate their commitment to the program.

Upon the successful completion of that phase of the program, the defendant pleads guilty to the charge(s) and sentencing is postponed for one year.  If he/she is charged with a new drug case, the judge immediately terminates participation and imposes a sentence.  However, if the defendant successfully completes the program, his/her charges will ultimately be dismissed.

This program is tailored to an individual's needs and may include any or all of the following:

  • obtaining a high school diploma,
  • enrolling in a city college,
  • securing full-time employment,
  • stabilizing housing, or
  • attending counseling and/or therapy.31
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If you or loved one is charged with Penal Code 1000 PC drug diversion and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada's drug court and diversion programs.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.32

Legal References:

1 Our California drug crimes defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

2 Penal Code 1000 PC California's deferred entry of judgment program.  ("(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, 11365, 11377, or 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, and it appears to the prosecuting attorney that, except as provided in subdivision (b) of Section 11357 of the Health and Safety Code, all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) 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. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) 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. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense. (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply to the defendant. Upon the agreement of the prosecuting attorney, law enforcement, the public defender, and the presiding judge of the criminal division of the superior court, or a judge designated by the presiding judge, this procedure shall be completed as soon as possible after the initial filing of the charges. If the defendant is found eligible, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. If the defendant is found ineligible for deferred entry of judgment, the prosecuting attorney shall file with the court a declaration in writing or state for the record the grounds upon which the determination is based, and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal. (c) All referrals for deferred entry of judgment granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to programs that provide services at no cost to the participant and have been deemed by the court and the county drug program administrator to be credible and effective. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision. (d) Deferred entry of judgment for a violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. Nothing in this subdivision shall be construed to expand or restrict the provisions of Section 1000.4. (e) Any defendant who is participating in a program referred to in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urine analysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.")

3 California Penal Code 1000.2 PC -- Hearing by court; determination of deferred entry of judgment; exoneration of bail; progress reports.  ("The court shall hold a hearing and, after consideration of any information relevant to its decision, shall determine if the defendant consents to further proceedings under this chapter and if the defendant should be granted deferred entry of judgment. If the court does not deem the defendant a person who would be benefited by deferred entry of judgment, or if the defendant does not consent to participate, the proceedings shall continue as in any other case. At the time that deferred entry of judgment is granted, any bail bond or undertaking, or deposit in lieu thereof, on file by or on behalf of the defendant shall be exonerated, and the court shall enter an order so directing. The period during which deferred entry of judgment is granted shall be for no less than 18 months nor longer than three years. Progress reports shall be filed by the probation department with the court as directed by the court.")

4 See Penal Code 1000 PC California's deferred entry of judgment program, subdivision (c).

See also California Penal Code 1211. Requirements, criteria and fees for completion of programs; establishment; standards for approval of programs.  ("(a) In order to ensure the quality of drug diversion programs provided pursuant to this chapter and Chapter 2.5 (commencing with Section 1000) of Title 6, and to expand the availability of these programs, the county drug program administrator in each county, in consultation with representatives of the court and the county probation department, shall establish minimum requirements, criteria, and fees for the successful completion of drug diversion programs which shall be approved by the county board of supervisors no later than January 1, 1995. These minimum requirements shall include, but not be limited to, all of the following: (1) An initial assessment of each divertee, which may include all of the following: (A) Social, economic, and family background. (B) Education. (C) Vocational achievements. (D) Criminal history. (E) Medical history. (F) Drug history and previous treatment. (2) A minimum of 20 hours of either effective education or counseling or any combination of both for each divertee. (3) An exit conference which shall reflect the divertee's progress during his or her participation in the program. (4) Fee exemptions for persons who cannot afford to pay. (b) The county drug program administrator shall implement a certification procedure for drug diversion programs. (c) The county drug program administrator shall recommend for approval by the county board of supervisors programs pursuant to this chapter. No program, regardless of how it is funded, may be approved unless it meets the standards established by the administrator, which shall include, but not be limited to, all of the following: (1) Guidelines and criteria for education and treatment services, including standards of services which may include lectures, classes, group discussions, and individual counseling. However, any class or group discussion other than lectures, shall not exceed 15 persons at any one meeting. (2) Established and approved supervision, either on a regular or irregular basis, of the person for the purpose of evaluating the person's progress. (3) A schedule of fees to be charged for services rendered to each person under a county drug program plan in accordance with the following provisions: (A) Fees shall be used only for the purposes set forth in this chapter. (B) Fees for the treatment or rehabilitation of each participant receiving services under a certified drug diversion program shall not exceed the actual cost thereof, as determined by the county drug program administrator according to standard accounting practices. (C) Actual costs shall include both of the following: (i) All costs incurred by the providers of diversion programs. (ii) All expenses incurred by the county for administration, certification, or management of the drug diversion program in compliance with this chapter. (d) The county shall require, as a condition of certification, that the drug diversion program pay to the county drug program administrator all expenses incurred by the county for administration, certification, or management of the drug diversion program in compliance with this chapter . No fee shall be required by any county other than that county where the program is located.")

5 California Penal Code 1000.3 PC -- Unsatisfactory performance by defendant, or engagement in criminal conduct; motion for entry of judgment; notice and hearing; sentencing hearing; dismissal for satisfactory performance; defendant's financial obligation to program.  ("If it appears to the prosecuting attorney, the court, or the probation department that the defendant is performing unsatisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or that the defendant is convicted of a misdemeanor that reflects the defendant's propensity for violence, or the defendant is convicted of a felony, or the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the prosecuting attorney, the court on its own, or the probation department may make a motion for entry of judgment. After notice to the defendant, the court shall hold a hearing to determine whether judgment should be entered. If the court finds that the defendant is not performing satisfactorily in the assigned program, or that the defendant is not benefiting from education, treatment, or rehabilitation, or the court finds that the defendant has been convicted of a crime as indicated above, or that the defendant has engaged in criminal conduct rendering him or her unsuitable for deferred entry of judgment, the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code. If the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charge or charges shall be dismissed [italics added]. Prior to dismissing the charge or charges or rendering a finding of guilt and entering judgment, the court shall consider the defendant's ability to pay and whether the defendant has paid a diversion restitution fee pursuant to Section 1001.90, if ordered, and has met his or her financial obligation to the program, if any. As provided in Section 1203.1b, the defendant shall reimburse the probation department for the reasonable cost of any program investigation or progress report filed with the court as directed pursuant to Sections 1000.1 and 1000.2.")

6 See same.

7See also California Penal Code 1000.2 PC -- Hearing by court; determination of deferred entry of judgment; exoneration of bail; progress reports, endnote 3, above.

8 See Penal Code 1000 PC California's deferred entry of judgment program, endnote 2, above.    Health and Safety Code 11377 HS California's law against personal possession of a controlled substance.  ("(a) Except as authorized by law and as otherwise provided in subdivision (b) or Section 11375, or in Article 7 (commencing with Section 4211) of Chapter 9 of Division 2 of the Business and Professions Code, every person who possesses any controlled substance which is (1) classified in Schedule III, IV, or V, and which is not a narcotic drug, (2) specified in subdivision (d) of Section 11054, except paragraphs (13), (14), (15), and (20) of subdivision (d), (3) specified in paragraph (11) of subdivision (c) of Section 11056, (4) specified in paragraph (2) or (3) of subdivision (f) of Section 11054, or (5) specified in subdivision (d), (e), or (f) of Section 11055, unless upon the prescription of a physician, dentist, podiatrist, or veterinarian, licensed to practice in this state, shall be punished by imprisonment in a county jail for a period of not more than one year or in the state prison. (b)(1) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (f) of Section 11056, and who has not previously been convicted of a violation involving a controlled substance specified in subdivision (f) of Section 11056, is guilty of a misdemeanor. (2) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in subdivision (g) of Section 11056 is guilty of a misdemeanor. (3) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (7) or (8) of subdivision (d) of Section 11055 is guilty of a misdemeanor. (4) Any person who violates subdivision (a) by unlawfully possessing a controlled substance specified in paragraph (8) of subdivision (f) of Section 11057 is guilty of a misdemeanor. (c) In addition to any fine assessed under subdivision (b), the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates subdivision (a), with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.")

See also Health and Safety Code 11350 HS California's law against personal possession of controlled substances.  ("(a) Except as otherwise provided in this division, every person who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison. (b) Except as otherwise provided in this division, every person who possesses any controlled substance specified in subdivision (e) of Section 11054 shall be punished by imprisonment in the county jail for not more than one year or in the state prison. (c) Except as otherwise provided in this division, whenever a person who possesses any of the controlled substances specified in subdivision (a) or (b), the judge may, in addition to any punishment provided for pursuant to subdivision (a) or (b), assess against that person a fine not to exceed seventy dollars ($70) with proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (d) Except in unusual cases in which it would not serve the interest of justice to do so, whenever a court grants probation pursuant to a felony conviction under this section, in addition to any other conditions of probation which may be imposed, the following conditions of probation shall be ordered: (1) For a first offense under this section, a fine of at least one thousand dollars ($1,000) or community service. (2) For a second or subsequent offense under this section, a fine of at least two thousand dollars ($2,000) or community service. (3) If a defendant does not have the ability to pay the minimum fines specified in paragraphs (1) and (2), community service shall be ordered in lieu of the fine.")

9 Health and Safety Code 11357 HS California's law against possessing less than one ounce of marijuana.  ("(a) Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison. (b) Except as authorized by law, every person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). (c) Except as authorized by law, every person who possesses more than 28.5 grams of marijuana, other than concentrated cannabis, shall be punished by imprisonment in the county jail for a period of not more than six months or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment. (d) Except as authorized by law, every person 18 years of age or over who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be punished by a fine of not more than five hundred dollars ($500), or by imprisonment in the county jail for a period of not more than 10 days, or both. (e) Except as authorized by law, every person under the age of 18 who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, upon the grounds of, or within, any school providing instruction in kindergarten or any of grades 1 through 12 during hours the school is open for classes or school-related programs is guilty of a misdemeanor and shall be subject to the following dispositions: (1) A fine of not more than two hundred fifty dollars ($250), upon a finding that a first offense has been committed. (2) A fine of not more than five hundred dollars ($500), or commitment to a juvenile hall, ranch, camp, forestry camp, or secure juvenile home for a period of not more than 10 days, or both, upon a finding that a second or subsequent offense has been committed.")

10 People v. Sharp (2003) 112 Cal.App.4th 1336, 1338.  ("At issue in this case is whether a defendant convicted of cultivating marijuana (Health & Saf.Code, � 11358) is eligible for drug treatment rather than incarceration under Proposition 36 (Pen.Code, � 1210 et seq.) if the cultivation was for personal use. We agree with the trial court that cultivation of marijuana does not meet the statutory definition of a "nonviolent drug possession offense" because it is not "possession, use, or transportation for personal use" or "being under the influence" of a controlled substance. (Pen.Code, � 1210, subd. (a).) Rather, cultivation falls within the excluded offenses of "possession for sale, production, or manufacturing." ( Ibid.) We affirm the judgment.")

11 Health and Safety Code 11364 HS California's law against possessing drug paraphernalia.  ("(a) It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (2) of subdivision (d) of Section 11055, or (2) a controlled substance which is a narcotic drug classified in Schedule III, IV, or V. (b) This section shall not apply to hypodermic needles or syringes that have been containerized for safe disposal in a container that meets state and federal standards for disposal of sharps waste. (c) Pursuant to authorization by a county, with respect to all of the territory within the county, or a city, with respect to the territory within in the city, for the period commencing January 1, 2005, and ending December 31, 2018, subdivision (a) shall not apply to the possession solely for personal use of 10 or fewer hypodermic needles or syringes if acquired from an authorized source.")

12 Health and Safety Code 11365 HS -- Presence in room or place where designated controlled substances smoked or used; aiding or abetting.  ("(a) It is unlawful to visit or to be in any room or place where any controlled substances which are specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) or paragraph (2) of subdivision (d) of Section 11055, or which are narcotic drugs classified in Schedule III, IV, or V, are being unlawfully smoked or used with knowledge that such activity is occurring. (b) This section shall apply only where the defendant aids, assists, or abets the perpetration of the unlawful smoking or use of a controlled substance specified in subdivision (a). This subdivision is declaratory of existing law as expressed in People v. Cressey (1970) 2 Cal. 3d 836.")

13 Health and Safety Code 11550 HS California's law against being under the influence of a controlled substance.  ("(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. (b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available. For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program. (c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program. In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds. (d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision. (e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.     As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle. (f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years. (g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.")

14 People v. Wheeler (2005) 127 Cal.App.4th 873, 879.  ("Moreover, nothing in section 11368 establishes the section is limited to offenses committed with the intent to obtain narcotics for personal use. Therefore, section 11368 also does not facially meet the definition of a "nonviolent drug possession offense" for purposes of Proposition 36 because Penal Code section 1210, subdivision (a), expressly limits the term to "personal use," "possession for personal use," "transportation for personal use," or personally "being under the influence." Defendant argues his specific section 11368 offense comes within the broad range of offenses encompassed by Proposition 36 because, in fact, he committed the offense in order to obtain Vicodin for his personal use and "it is not the means by which defendant obtains the controlled substance that controls under Proposition 36, but it is the purpose for which he possesses it." FN3 Although we agree Proposition 36 does not distinguish between offenses based on the means by which the drugs are obtained, we are not persuaded this is pertinent to whether defendant's section 11368 offense comes within Proposition 36.[and at 880] The crime of prescription forgery within the portions of section 11368 at issue is not simple drug possession. Although a person could use a forged prescription, as defendant apparently did, as a method for trying to obtain narcotics for personal use, as we pointed out before, the offense is not so limited. In addition, even when the drugs are for personal use, section 11368 is directed at a greater evil than possession and personal use of the obtained drugs. It is primarily directed at forgery of the indicia of a powerful authority solely reserved to statutorily defined "practitioners.".Far more is implicated than just an offender's personal involvement with drugs. (See People v. Canty, supra, 32 Cal.4th at p. 1279, 14 Cal.Rptr.3d 1, 90 P.3d 1168.) Even though section 11368 is not necessarily "commercial in nature" ( People v. Ferrando, supra, 115 Cal.App.4th at p. 920, 9 Cal.Rptr.3d 670) like the "sale, production, or manufacturing" offenses that are expressly excluded by Penal Code section 1210, subdivision (a), neither is it a simple drug possession or drug use offense.")

15 Vehicle Code 23222(b) VC California's driving while in possession of marijuana law.  ("(b) Except as authorized by law, every person who possesses, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, not more than one avoirdupois ounce of marijuana, other than concentrated cannabis as defined by Section 11006.5 of the Health and Safety Code, is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100).")

16 Penal Code 647(f) PC California's drunk in public law.  ("Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor.(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.")

17 Penal Code 653f(d) PC California's law against soliciting drug sales or transportation.  ("(d) Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison.")

18 See Penal Code 1000 PC California's deferred entry of judgment program, endnote 2, above.

19U.S. Drug Enforcement Administration - Controlled Substances Schedule List.

20 San Francisco criminal defense attorney Cameron Bowman defends clients throughout Northern California which includes (but is not limited to) the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.

21 See People v. Wheeler, endnote 14, above.

See also People v. Sharp (2003) 112 Cal.App.4th 1336, 1338.  ("At issue in this case is whether a defendant convicted of cultivating marijuana (Health & Saf.Code, � 11358) is eligible for drug treatment rather than incarceration under Proposition 36 (Pen.Code, � 1210 et seq.) if the cultivation was for personal use. We agree with the trial court that cultivation of marijuana does not meet the statutory definition of a "nonviolent drug possession offense" because it is not "possession, use, or transportation for personal use" or "being under the influence" of a controlled substance. (Pen.Code, � 1210, subd. (a).) Rather, cultivation falls within the excluded offenses of "possession for sale, production, or manufacturing." ( Ibid.) We affirm the judgment.")

22 See Penal Code 1000 PC California's deferred entry of judgment program, endnote 2, above.

23 California Penal Code 1000.1 PC -- Determination of application of chapter; notification; deferred entry of judgment; investigation; final determination by court; admissibility of evidence; effect of guilty plea.  ("(a) If the prosecuting attorney determines that this chapter may be applicable to the defendant, he or she shall advise the defendant and his or her attorney in writing of that determination. This notification shall include all of the following: (1) A full description of the procedures for deferred entry of judgment. (2) A general explanation of the roles and authorities of the probation department, the prosecuting attorney, the program, and the court in the process. (3) A clear statement that in lieu of trial, the court may grant deferred entry of judgment with respect to any crime specified in subdivision (a) of Section 1000 that is charged, provided that the defendant pleads guilty to each of these charges and waives time for the pronouncement of judgment, and that upon the defendant's successful completion of a program, as specified in subdivision (c) of Section 1000, the positive recommendation of the program authority and the motion of the prosecuting attorney, the court, or the probation department, but no sooner than 18 months and no later than three years from the date of the defendant's referral to the program, the court shall dismiss the charge or charges against the defendant. (4) A clear statement that upon any failure of treatment or condition under the program, or any circumstance specified in Section 1000.3, the prosecuting attorney or the probation department or the court on its own may make a motion to the court for entry of judgment and the court shall render a finding of guilt to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code. (5) An explanation of criminal record retention and disposition resulting from participation in the deferred entry of judgment program and the defendant's rights relative to answering questions about his or her arrest and deferred entry of judgment following successful completion of the program. (b) If the defendant consents and waives his or her right to a speedy trial or a speedy preliminary hearing, the court may refer the case to the probation department or the court may summarily grant deferred entry of judgment if the defendant pleads guilty to the charge or charges and waives time for the pronouncement of judgment. When 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 determining whether the defendant is a person who would be benefited by education, treatment, or rehabilitation. The probation department shall also determine which programs the defendant would benefit from and which programs would accept the defendant. The probation department shall report its findings and recommendations to the court. The court shall make the final determination regarding education, treatment, or rehabilitation for the defendant. If the court determines that it is appropriate, the court shall grant deferred entry of judgment if the defendant pleads guilty to the charge or charges and waives time for the pronouncement of judgment. (c) No statement, or any information procured therefrom, made by the defendant to any probation officer or drug treatment worker, that is made during the course of any investigation conducted by the probation department or treatment program pursuant to subdivision (b), and prior to the reporting of the probation department's findings and recommendations to the court, shall be admissible in any action or proceeding brought subsequent to the investigation. No statement, or any information procured therefrom, with respect to the specific offense with which the defendant is charged, that is made to any probation officer or drug program worker subsequent to the granting of deferred entry of judgment, shall be admissible in any action or proceeding, including a sentencing hearing. (d) A defendant's plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3.")

24See same.

25See California Penal Code 1000.3 PC, endnote 5, above.

26 See same.

27 California Penal Code 1000.4 PC -- Successful completion of program; record; disclosure of arrest.  ("(a) Any record filed with the Department of Justice shall indicate the disposition in those cases deferred pursuant to this chapter. Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense, except as specified in subdivision (b). A record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate. (b) The defendant shall be advised that, regardless of his or her successful completion of the deferred entry of judgment program, the arrest upon which the judgment was deferred may be disclosed by the Department of Justice in response to any peace officer application request and that, notwithstanding subdivision (a), this section does not relieve him or her of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.")

28 See same.

29 People v. Davis (2000) 79 Cal.App.4th 251, 256-257. ("Under the plain meaning of the words of the Three Strikes law and the deferred entry of judgment program, an otherwise eligible defendant is not excluded from deferred entry of judgment based on the allegation of a prior serious [felony] or violent felony conviction. The deferred entry of judgment program excludes defendants, inter alia, who have suffered any felony conviction within the preceding five years (� 1000, subd. (a)(6)), or if the current felony involved violence or the threat of violence (� 1000, subd. (a)(2)), but does not exclude potential participants based on the allegation of a prior serious or violent felony conviction. Thus, the deferred entry of judgment allows a strike defendant [that is, a defendant who has received a strike pursuant to California's three strikes law] to participate.")

30 Penal Code 1000.5 PC -- Preguilty plea drug court program; operation of program; effect of defendant's performance.  ("(a) The presiding judge of the superior court, or a judge designated by the presiding judge, together with the district attorney and the public defender, may agree in writing to establish and conduct a preguilty plea drug court program pursuant to the provisions of this chapter, wherein criminal proceedings are suspended without a plea of guilty for designated defendants. The drug court program shall include a regimen of graduated sanctions and rewards, individual and group therapy, urine analysis testing commensurate with treatment needs, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as agreed to by the presiding judge or his or her designee, the district attorney, and the public defender. If there is no agreement in writing for a preguilty plea program by the presiding judge or his or her designee, the district attorney, and the public defender, the program shall be operated as a deferred entry of judgment program as provided in this chapter. (b) The provisions of Section 1000.3 and Section 1000.4 regarding satisfactory and unsatisfactory performance in a program shall apply to preguilty plea programs. If the court finds that (1) the defendant is not performing satisfactorily in the assigned program, (2) the defendant is not benefiting from education, treatment, or rehabilitation, (3) the defendant has been convicted of a crime specified in Section 1000.3, or (4) the defendant has engaged in criminal conduct rendering him or her unsuitable for the preguilty plea program, the court shall reinstate the criminal charge or charges. If the defendant has performed satisfactorily during the period of the preguilty plea program, at the end of that period, the criminal charge or charges shall be dismissed and the provisions of Section 1000.4 shall apply.")

31 California Penal Code 1000.8 PC -- "Back on Track" deferred entry of judgment program for first-time nonviolent felony drug offenders; establishment; eligibility.  ("A superior court, with the concurrence of the prosecuting attorney of the county, may create a "Back on Track" deferred entry of judgment reentry program aimed at preventing recidivism among first-time nonviolent felony drug offenders. No defendant who has been convicted of a violation of an offense enumerated in subdivision (c) of Section 290 or in Section 1192.7 shall be eligible for the program established in this chapter. When creating this program, the prosecuting attorney, together with the presiding judge and a representative of the criminal defense bar selected by the presiding judge of the superior court may agree to establish a "Back on Track" deferred entry of judgment program pursuant to the provisions of this chapter. The agreement shall specify which low-level nonviolent felony drug offenses under the Health and Safety Code will be eligible for the program and a process for selecting participants. The program shall have the following characteristics: (a) A dedicated calendar. (b) Leadership by a superior court judicial officer who is assigned by the presiding judge. (c) Clearly defined eligibility criteria to enter the program and clearly defined criteria for completion of the program. (d) Legal incentives for defendants to successfully complete the program, including dismissal or reduction of criminal charges upon successful completion of the program. (e) Close supervision to hold participants accountable to program compliance, including the use of graduated sanctions and frequent, ongoing appearances before the court regarding participants' program progress and compliance with all program terms and conditions. The court may use available legal mechanisms, including return to custody if necessary, for failure to comply with the supervised plan. (f) Appropriate transitional programming for participants, based on available resources from county and community service providers and other agencies. The transitional programming may include, but is not limited to, any of the following: (1) Vocational training, readiness, and placement. (2) Educational training, including assistance with acquiring a G.E.D. or high school diploma and assistance with admission to college. (3) Substance abuse treatment. (4) Assistance with obtaining identification cards and driver's licenses. (5) Parenting skills training and assistance in becoming compliant with child support obligations. (g) The program may develop a local, public-private partnership between law enforcement, government agencies, private employers, and community-based organizations for the purpose of creating meaningful employment opportunities for participants and to take advantage of incentives for hiring program participants.")

See also California Penal Code 1000.9 PC -- Eligibility determined by prosecuting attorney; notification; grounds for determination; failure to comply.  ("The prosecuting attorney shall determine whether a defendant is eligible for participation in the deferred entry of judgment reentry program. (a) If the prosecuting attorney determines that this section may be applicable to the defendant, he or she shall advise the defendant and his or her attorney in writing of that determination. This notification shall include the following: (1) A full description of the procedures for deferred entry of judgment. (2) A general explanation of the role and authority of the prosecuting attorney, the program, and the court in the process. (3) A clear statement that in lieu of trial, the court may grant deferred entry of judgment with respect to the current crime or crimes charged if the defendant pleads guilty to each charge and waives time for the pronouncement of judgment, and that, upon the defendant's successful completion of the program and the motion of the prosecuting attorney, the court will dismiss the charge or charges against the defendant and the provisions of Sections 851.90 and 1203.4 will apply. (4) A clear statement that failure to comply with any condition under the program may result in the prosecuting attorney or the court making a motion for entry of judgment, whereupon the court will render a finding of guilty to the charge or charges pled, enter judgment, and schedule a sentencing hearing as otherwise provided in this code. (5) An explanation of criminal record retention and disposition resulting from participation in the deferred entry of judgment program and the defendant's rights relative to answering questions about his or her arrest and deferred entry of judgment following successful completion of the program. (b) If the prosecuting attorney determines that the defendant is eligible for the program, the prosecuting attorney shall state for the record the grounds upon which the determination is based and shall make this information available to the defendant and his or her attorney. This procedure is intended to allow the court to set the hearing for deferred entry of judgment at the arraignment. (c) If the prosecuting attorney determines that the defendant is ineligible for the program, the prosecuting attorney shall state for the record the grounds upon which the determination is based and shall make this information available to the defendant and his or her attorney. The sole remedy of a defendant who is found ineligible for deferred entry of judgment is a postconviction appeal. If the prosecuting attorney does not deem the defendant eligible, or the defendant does not consent to participate, the proceedings shall continue as in any other case. (d) Upon a motion by the prosecuting attorney for an entry of judgment, before entering a judgment of guilty, the court may hold a hearing to determine whether the defendant has failed to comply with the program and should be terminated from the program.")

For more information about San Francisco's " back on track" program, please see San Francisco District Attorney's Office - Reentry "back on track" and The Goodwill Industries of San Francisco "back on track" program.

32 Please feel free to contact our Las Vegas Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's drug court and diversion programs. Our Nevada law offices are located in Reno and Las Vegas.

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