“Deferred Entry of Judgment” – How It Works in California

A deferred entry of judgment is where you enter an initial guilty or no contest plea, but the judge holds off on convicting you while you do probation. If you complete probation and stay out of trouble, then

1. the judge will dismiss the case, and
2. you avoid a conviction on your criminal record.

Here are five key things to know:

1. If you fail to complete probation, the judge can sentence you to up to the maximum term for the charged offenses.
2. A deferred entry of judgment (DEJ) is usually available only in non-violent misdemeanor cases.
3. It may be possible to get a felony reduced to a misdemeanor through a deferred entry of judgment.
4. Typical probation terms include drug treatment, drug testing, counseling, and community service.
5. Instead of a deferred entry of judgment, you may be able to do pretrial diversion where you do not enter an initial plea; then if you fail probation, your charge is reinstated, and you can fight it like a normal case.

The following flowchart summarizes the process in a typical DEJ case.

1. DEJ vs Pretrial Diversion

With a deferred entry of judgment (DEJ), you must enter a plea of guilty (or no contest) before you can go on probation in pursuit of getting the case dismissed. Then, if you fail probation, you will be sentenced based on your initial plea.

With pretrial diversion, you generally do not have to enter a guilty or no contest plea in order to go on probation in pursuit of a dismissal. Then, if you fail probation, your case will proceed as if you never entered diversion, and you will have the option of going to trial. You would not be automatically sentenced as you would in a DEJ program.¹

California has two main pretrial diversion programs:

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

Many people use the terms deferred entry of judgment and pretrial diversion interchangeably.

2. Mental Health Diversion

If you have certain mental health problems and are charged with a crime, you can ask the court for pretrial diversion. The court has to approve your mental health treatment plan, which can be done as an inpatient or outpatient and must be completed within two years.

Upon successful completion, you can have your charge dismissed and sealed. If you fail to complete your treatment, the charges will be reinstated.²

Who is eligible?

For you to be eligible for mental health diversion, all of the following conditions need to be met:

• You suffer 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 you,
• A mental health expert thinks you would respond to mental health treatment,
• You agree to waive your right to a speedy trial and get treatment, and
• The court is satisfied that you do not pose an unreasonable risk to the public.³

Most crimes other than sex- or violent offenses can be dismissed through mental health diversion.⁴

3. Diversion for Misdemeanors

You can ask for pretrial diversion if you are accused of nonviolent misdemeanors. The program depends on your charge, though it can include:

• Drug or alcohol treatment (including AA or NA),
• Drug or alcohol testing,
• Anger management classes,
• Counseling,
• Victim restitution,
• Community service, and
• Probation.

If you complete pretrial diversion, the charge will be dismissed and sealed. The charge will be reinstated if you fail to complete your diversion program.⁵

Who is eligible?

For you to be eligible for pretrial diversion, all of the following conditions have to be met:

• You do 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,
• You are charged with a non-violent misdemeanor listed in California Penal Code 1000,
• In the current case, there is no evidence that there is also a more serious offense that would be ineligible for misdemeanor diversion, and
• You have not had a felony conviction in the last 5 years.

Misdemeanor diversion is most common in cases involving:

• drug possession (HS 11350(a)),
• trespassing (PC 602),
• disorderly conduct (PC 647),
• petty theft (PC 484), or
• misdemeanor grand theft (PC 487).⁶

4. Criminal Records

It depends on whether you violate probation.

With a deferred entry of judgment (DEJ), you enter a plea of guilty or no contest without the judge immediately entering a judgment.

If you complete probation, the judge never enters judgment and dismisses the case without a conviction. However, if you do not complete probation, the court will then enter judgment, and you will be convicted.

That is why a pretrial diversion program is preferable to a DEJ. With pretrial diversion, you do not enter a guilty plea to go on probation. If you violate probation, you still get to fight the underlying charge – you are not automatically convicted like with a DEJ.

5. Felony Cases

We have had cases where our clients were charged with a felony, and the judge agreed to a deferred entry of judgment (DEF). However, instead of dismissing the case, the judge reduced it to a misdemeanor once our client finished probation.

In our experience, courts will only consider DEFs for non-violent felonies such as check fraud (PC 476) or grand theft.

6. Benefits of DEJ

The best part about DEFs in misdemeanor cases is that you avoid having a criminal conviction on your background check. This will greatly increase your options when applying for jobs, housing, loans, or professional licenses.

Note that federal background checks – particularly for national security jobs – may still show your case information even if you successfully completed a DEF. This is because, under federal law, convictions automatically occur when you enter the plea.

Additional Reading

For more information, see our related articles:

• Record expungements – expungements release you from all penalties and disabilities of the conviction
• Sentence commutations – a type of executive clemency that reduces or eliminates your sentence
• Certificate of rehabilitation – a form of post-conviction relief in which the court finds that you have been rehabilitated after a criminal conviction
• Pardons – a form of post-conviction relief granted by the governor if you were convicted of an offense but then showed a high level of rehabilitation
• SB 731 – most felony records get automatically sealed from your record four years after the case ends

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