“Deferred Entry of Judgment” in California Criminal Cases

Deferred entry of judgment is a pretrial diversion program in which you plead guilty or no contest, but the court “defers” judgment and sentencing while you complete probation and a program.

If you successfully complete the program, the case is dismissed and the criminal record of arrest by law enforcement can be sealed.

But if they fail to complete the program or the terms of probation, the judge can sentence them up to the maximum term for the charged offenses.

There are 2 kinds of programs that defer entry of judgment:

1. Mental health programs (Penal Code 1001.36), and
2. Misdemeanor diversion, which includes drug diversion (Penal Code 1000 PC) for minor drug crimes.

If the program is completed successfully, the charges get dropped. They can also be sealed.

If the diversion program is not completed, the criminal case is reinstated. It resumes from where it left off and leaves the defendant vulnerable to a criminal conviction. This is a new change in California law.¹ Before 2018, defendants had to plead guilty to defer the entry of judgment and pursue diversion.

1. Is there a difference between deferred entry of judgment and pretrial diversion?

Both phrases refer to the same process in a criminal case. Amendments to the law in 2018 changed key portions of that process, though. The changes were big enough that the name for it was no longer accurate.

The process used to be referred to as “deferred entry of judgment.” Before the changes to the law in 2018, a defendant had to plead guilty to the criminal charges. The guilty plea meant that judgment was made. The entry of judgment was deferred while the defendant pursued a diversion program. If the defendant failed the program, the deferred judgment would be handed down.

Now, the defendant does not have to plead guilty to pursue diversion. Without the plea, the judgment is no longer made before diversion. The process is now referred to as “pretrial diversion.”

2. What is DEJ for mental health diversion?

Defendants with certain mental health problems can ask the court to defer the entry of judgment. These defendants have to complete a mental health program to have their case diverted from trial.

The court has to approve the mental health treatment plan. It can be done as an inpatient or as an outpatient. It has to be completed within 2 years.

Upon successful completion, the defendant can have his or her charge dismissed and sealed.

If the defendant fails to complete his or her treatment, the charges will be reinstated.

Deferred entry of judgment based on mental health is a new law in California. It went into effect on June 27, 2018.²

3. Who is eligible?

Not all defendants with mental health problems can have the entry of judgment deferred. To be eligible, all of the following conditions need to be met:

• The defendant suffers from a mental health condition other than pedophilia, antisocial personality disorder, or borderline personality disorder,
• That mental disorder played a significant role in the charges against the defendant,
• A mental health expert thinks the defendant would respond to mental health treatment,
• The defendant agrees to waive their right to a speedy trial and get treatment, and
• The court is satisfied that the defendant does not pose an unreasonable risk to the public.

4. What charges can be deferred?

Most crimes are eligible for deferred entry of judgment through mental health diversion. However, serious sex crimes and violent crimes are ineligible.

5. What is DEJ for misdemeanor offenses?

People accused of nonviolent misdemeanors can ask for deferred entry of judgment, too. Their pretrial program depends on their charge. It can include:

• Drug or alcohol treatment,
• Anger management classes,
• Victim restitution,
• Community service, and
• Probation.

If the pretrial diversion program is completed, the charge will be dismissed and sealed.

If the defendant fails to complete their diversion program, the charge will be reinstated.

6. What charges are eligible for misdemeanor DEJ?

Only certain offenses are eligible for misdemeanor deferred entry of judgment programs. They are listed in California Penal Code 1000.

All of them are misdemeanor offenses. None of them have an element of violence or domestic violence in them. Many are minor drug possession offenses under the Health and Safety Code. The defendant may have to complete a drug treatment program.

7. Who is eligible to defer a misdemeanor case?

To be eligible for deferred entry of judgment and pretrial diversion, all of the following conditions have to be met:

• The defendant does not have a prior conviction for a crime that would be ineligible for misdemeanor diversion in the last 5 years,
• There was no violence or threat of violence in the current allegation,
• In the current case, there is no evidence that there is also a more serious offense that would be ineligible for misdemeanor diversion, and
• The defendant has not had a felony conviction in the last 5 years.

See our related article on record expungements.

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