California's "Pretrial Diversion" for Drug Crimes
(Penal Code 1000 PC)

distressed young woman in group counseling session
Penal Code 1000 lets some offenders do drug treatment instead of jail time

Penal Code 1000 PC sets forth California's pretrial diversion program for drug crimes involving simple possession. Formerly known as deferred entry of judgment ("DEJ"), PC 1000 allows many non-violent drug offenders to obtaintreatment and education instead ofjail time.

Following successful completion of drug diversion, the charges are dismissed, leaving nocriminal record for most purposes.

Who is eligible for PC 1000 diversion?

To be eligible for PC 1000 pretrial diversion the charge(s) must generally be for simple possession of drugs -- that is, possession for personal use only.

A defendant charged with selling or transporting a controlled substanceor possession of a controlled substance for sale is generally not eligible forpretrial diversion under Penal Code 1000.

What are the requirements for PC 1000 pretrial diversion?

In addition to the offense beinglisted in Penal Code 1000, all of the following four conditions must be met for a defendant to be eligible for drug diversion:

  1. The defendant must not have been convicted of a non-PC 1000 eligible drug crime within the previous five years;
  2. The charged offense(s) must not have involved a crime of violence or threatened violence;
  3. There must be no evidence of any additional and more serious drug crime(s) (such as drug sale or possession for sale); and
  4. The defendant must not have any felony conviction(s) within the preceding five years.

To help you better understand pretrial diversion under Penal Code 1000 PC, our California criminal defense lawyers discuss the following, below:

judge banging gavel

1. An overview and history of Penal Code 1000 PC

Penal Code 1000 PC is California's “pretrial diversion” law. It allows eligible defendants arrested for low-level drug crimes the opportunity to have their charges dismissed if they successfully complete drug treatment.

Before 2018, Penal Code 1000 was known as “deferred entry of judgment” (“DEJ”). Under that prior version of PC 1000, the defendant was required to enter a guilty plea to the charge(s) in order to participate in drug diversion.

If the defendant then completed the drug rehabilitation program, the charges would be dismissed. But if the defendant failed to complete rehab, he or she would be guilty of the charges.

1.1. Changes in PC 1000 Effective as of January 1, 2018

As of January 1, 2018, participation in PC 1000 drug diversion has been reclassified as a “pretrial” diversion program. The defendant can now plead “not guilty” to eligible charges and be permitted to participate in drug treatment.1

Upon successful completion of the program, the court will still dismiss the charges against the defendant.2 But if the defendant flunks out of the program, he or she will not automatically be found guilty. He or she will be entitled to a trial in front of a judge (a California "bench trial").

List of specific changes to PC 1000 effectiveas of 2018

The following are the principal changes to Penal Code 1000 that became effective as of January 1, 2018:

  • Name changed from "Deferred Entry of Judgment" to "Pretrial Diversion."
  • The defendant can plead "not guilty" (rather than guilty) and be referred to drug treatment.
  • The defendant must give up the right to jury trial, but retains the right to a trial in front of a judge (“bench trial”) if he/she fails to complete drug treatment.
  • Eligible offenses are unchanged from the prior law, but as the result ofrealignment underProposition 47, they are now, for the most part, misdemeanor offenses.
  • The program length is decreased to 12-18 months (though a longer period may be requested). Previously under PC 1000 treatment typically lasted 18 months but could be as long as three years.
  • Previously,most prior drug convictions disqualified the person from PC 1000 drug treatment. Now only serious drug convictions within the immediately preceding five-year period make the defendant ineligible.
  • Previously, the defendant could not repeat a PC 1000 programwithin a five-year period. Under the new law, prior participation in PC 1000 drug treatment is no longer a disqualifier.

2. Eligibility for pretrial diversion under PC 1000

2.1. Eligible offenses

The offenses that allow a defendant to participate in Penal Code 1000 pretrial diversion are:

  • Penal Code 11350 -- possession of controlled substances,
  • Penal Code 11357 – unlawful possession of cannabis,
  • Penal Code 11364 -- possession of drug paraphernalia,
  • Penal Code 11365 -- aiding or abetting the use of an unlawful controlled substance,
  • Penal Code 11375(b)(2) – unlawful possession of certain prescription sedatives,
  • Penal Code 11377 – possession of methamphetamines for personal use,
  • Health and Safety Code 11550– being under the influence of a controlled substance,
  • Vehicle Code 23222 (b) – possessing an open container of Cannabis in a motor vehicle,
  • Health and Safety Code 11358 – unlawful cultivation of Cannabis for personal use,
  • Health and Safety Code 11368 – possessing or using a forged prescription to obtain drugs for personal use,
  • Penal Code 653f(d) – soliciting someone to commit a crime to facilitate the defendant's personal use of narcotics,
  • Penal Code 381 -- possession of toxic substances for “huffing,”
  • Penal Code 647 (f) -- lewd conduct related to being under the influence of a controlled substance,and
  • Business and Professions Code 4060 -- possession of a controlled substance. Penal Code 1000 (a)(2).

2.2. What drugs are covered by PC 1000?

Some of the controlled substances that are covered by the above-referenced laws include:

  • cocaine,
  • heroin,
  • peyote,
  • gamma-hydroxybutyric acid ("GHB"),
  • ecstasy ("X"),
  • ketamine ("Special K"),
  • methamphetamines,
  • marijuana,
  • certain hallucinogenic substances, such asphencyclidine ("PCP"), and
  • prescription opioids such as codeine and hydrocodone ("Vicodin").

In general, the issue for the court is not so much the nature of the substance as:

  1. whether the offense is one of possession for personal use, and
  2. whether the defendant would benefit from drug treatment.

2.3. Additional conditions for pretrial diversion

In order for a defendant to be eligible for pretrial diversion under Penal Code 1000 PC, all of the following must apply:

  1. Within five years prior to the alleged commission of the charged offense, the defendant has not suffered a conviction for any offense involving controlled substances other than the offenses listed in Penal Code 1000.
  2. The offense charged did not involve a crime of violence or threatened violence.
  3. There is no evidence of a simultaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offenses listed in Penal Code 1000.
  4. The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.3

3. How does a defendant get referred to pretrial diversion?

Initially, the prosecuting attorney will review the defendant's case. If the defendant appears eligible for pretrial diversion, the prosecutor will advise the defendant and his or her attorney in writing.

3.1. Notice from the prosecutor

Written notification of potential eligibility from the prosecutor will include:

  • A full description of the procedures for pretrial diversion;
  • A general explanation of the roles and authorities of the probation department, the prosecuting attorney, the program, and the court in the process;
  • A clear statement that in order to get pretrial diversion the defendant must:
  • Plead not guilty to the charge or charges, and
  • Waive the right to a speedy trial, a speedy preliminary hearing, and trial by jury;
  • The information that upon the defendant's successful completion of drug treatment and the positive recommendation of the program authority, the court will dismiss the charge(s) against the defendant;
  • A statement that pretrial diversion may be terminated upon the defendant's failure of treatment or any condition under the program, or if the defendant commits a crime that makes him/her ineligible; and
  • An explanation of the defendant's rights respecting criminal record retention and disposition and how the defendant may answer questions about his or her arrest and pretrial diversion following successful completion of the program.

3.2.Investigation by a probation officer

The court will hold a hearing to determine whether the defendant is eligible and consents to pretrial diversion.4

But before making the determination, the court may -- in its discretion -- order the probation department to investigate the defendant's case.5 The probation officer assigned may 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.

3.3. Can statements I make during the investigation be used against me?

No. Statements made by the defendant to a probation officer or drug treatment worker during the probation department's investigation are not admissible to prove the original charges.6

The probation department and court will use this information solely to determine whether the defendant is a person who would benefit from education, treatment, or rehabilitation.

3.4. Final determination of eligibility

The probation department (if an investigation has been ordered) will advise the court which programs it feels the defendant would benefit from and which would accept the defendant.

The court will then make the final determination about whether and what type of education, treatment, or rehabilitation would be appropriate.

The defendant will be given the opportunity to consent to participation. If the defendant elects to do so, he or she will plead “not guilty” to the charge(s) and waive the right to:

  • Aspeedy trial,
  • A speedy preliminary hearing, and
  • Trial by jury.

The court will then dismiss any bail bond or other deposit and the defendant will be permitted to participate in drug treatment.

As treatment progresses, progress reportsmay be filed by the probation department with the court. This will help the court determine the defendant's continued eligibility under Penal Code 1000.

3.5. What if I don't want to do pretrial diversion?

If the defendant does not want to participate in drug treatment -- or if the court decides pretrial diversion is not appropriate -- the proceedings in the original drug case will continue.

The defendant's right to a speedy pretrial hearing, trial and trial by jury will be preserved.

A jury listening to evidence
Participation in Penal Code 1000 pretrial diversion requires a waiver of the right to a trial by jury

4. How does drug treatment work under Penal Code 1000?

4.1. What drug treatment providers can I use?

Pretrial diversion programs must be either:

  • Certified by the county drug program administrator pursuant to Chapter 1.5 of Title 8 of the California Penal Code (commencing with Penal Code Section 1211),
  • 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.7

The defendant may request to be referred to a program in any county, as long as that program meets these criteria.

4.2. How longdoes drug treatment last under PC 1000?

Pretrial diversion under PC 1000 generally lasts for no less than 12 months and no longer than 18 months8

However, upon a showing of good cause, the court may allow an extension of time to complete an approved drug treatment program.

4.3. Will I be required to take a drug test during pretrial diversion?

Generally, yes. Defendants participating in pretrial drug diversion under Penal Code 1000 may be required to undergo drug testing by urinalysis.

But the good news is that the results may be used solely for the purpose of measuring compliance with the program.

Failing a drug test cannot serve as the basis for new criminal charges. The only consequence is the possible termination of pretrial diversion.9

4.4. Can what I say during drug treatment be used against me?

No.Statements made by a defendant during drug treatment cannot be used against the defendant to the extent they concern the specific offense(s) charged.

4.5. Is there any cost to participate in pretrial diversion?

Yes. The court will require payment of a “diversion restitution fee.”The fee covers all or a portion of the reasonable cost of any probation supervision or pre-plea investigation and report.

The diversion restitution fee may be imposed in addition to any other administrative fee(s) required or allowed by law.

The amount of the diversion restitution feewill be not less than one hundred dollars ($100) and not more than one thousand dollars ($1,000).The exact amount will be determined by the court, in its discretion, taking into account all relevant factors including:

  • The defendant's ability to pay,
  • The seriousness of the offense, and
  • The extent to which any other person suffered any loss as a result of the crime.

However,the fee may not exceed the actual average cost of the services provided to the defendant.

The minimum $100 fee will be ordered regardless of the defendant's present ability to pay.

But upon a showing of compelling and extraordinary reasons, the court may waive imposition of the fee.10

4.6 What if I need narcotic medications while in pretrial diversion?

People participating in pretrial diversion may, under the direction of a licensed health care practitioner, use medications including (but not limited to) methadone, buprenorphine, or levoalphacetylmethadol (LAAM) to treat substance use disorders.

Use of such substances in accordance with the drug treatment's programs rules will not constitute grounds for terminating the defendant's participation in pretrial diversion. 11

4.7. Can pretrial diversion be terminated before treatment is finished?

The defendant's participation in PC 1000 pretrial diversion may be terminated if:

  • The defendant fails to obtain drug treatment or to comply with any condition of the program,
  • The defendant is convicted of any felony, or
  • The defendant is convicted of an offense that reflects a propensity for violence.

A motion to terminate the defendant's participation in pretrial diversion can be initiated by the prosecuting attorney, the judge, or the probation department.

The court will then hold a hearing to determine whether to terminate pretrial diversion. If the judge finds that the defendant is not performing satisfactorily in the assigned program or that the defendant has been convicted of a crime set forth above, the original case against the defendant will move forward.12

Smiling African American business person shaking hands with a man on the other side of the table

5. What is the effect of successful completion of pretrial diversion?

Upon successful completion of Penal Code 1000 pretrial diversion, the arrest for the applicable charge(s) will be deemed to have never occurred for most purposes.13

The defendant may then truthfully indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted pretrial diversion for the offense.

The exception is if the defendant is applying for a job as a law enforcement officer.

5.1. Willmy arrest record be sealed?

The court may issue an order to seal the records pertaining to the arrest as described in California Penal Code 851.92. Note, however, that such an order to seal the arrest record has no effect on a criminal justice agency's ability to access and use those sealed records in accordance with applicable law.

Successful completion of a pretrial diversion program also does not prohibit the California agencies responsible for licensing physicians, pharmacists or dentists from:

  • Taking disciplinary action against a licensee, or
  • Denying a license for professional misconduct.14

And finally, information about participation in diversion may be disclosed upon request to the agencies that license certain other related professions (such as veterinarians, nurses and therapists) set forth in Section 144 of the California Business and Professions Code.

6. Alternative California drug diversion programs

In addition to Penal Code 1000 PC pretrial diversion, California offersseveral other drug diversion programs, including:

  • Proposition 36,
  • California drug court, and
  • Local drug courts and rehabilitative justice programs.

An experienced California drug crimes defense lawyer can help you determine which program(s) you are eligible for and which is best suited to your case and personal needs.

6.1. 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). Like PC 1000, Prop. 36 is a drug diversion program.

There are four major differences between Prop. 36 andPenal Code 1000 pretrial diversion:

  1. Penal Code 1000 PC is applicable to a wider variety of drug-related crimes. For instance, eligible PC 1000 offenses include unlawful cultivation of marijuana for personal use and forging prescriptions for personal use.
  2. Prop. 36 requires a guilty plea, after which the defendant is placed on formal probation and subject to a variety of additional terms and conditions.
  3. Judges have a certain amount of discretion as to whether allowed participation in PC 1000 pretrial diversion. Defendants who qualify under Prop. 36, however, are automatically sentenced under its provisions.
  4. Upon successful completion of pretrial diversion, the charges against the defendant are automatically dismissed. In a Prop. 36 case, on the other hand, the judge has the discretion to determine whether or not to dismiss the charges.

All in all, therefore, PC 1000 is a better form of drug diversion for a defendant who has a choice.

6.2. California drug court

California drug courtis another drug diversion program. It is similar to Penal Code 1000 PC, but for defendants who are represented by public defenders.

Drug court programs are authorized by California Penal Code 1000.5 PC. They include programs such as Los Angeles County drug court and San Francisco's "back on track" program, both described below.

As with pretrial diversion, successful completion of a drug court treatment program can result in a dismissal of the underlying drug charge(s).

How does California drug court work?

Defendants are referred to drug court by written agreement of a judge, the prosecutor, and the public defender.

The drug court program includes a regimen of:

  • graduated sanctions and rewards,
  • individual and group therapy,
  • urinalysis 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.

Defendants who do not qualify for drug court (for instance, because the judge, D.A. and public defender do not agree) may still qualify for Penal Code 1000 pretrial diversion.

6.3. Los Angeles County drug court program

The Los Angeles County Drug Court Program, launched in 1994, provides treatment instead of jail time to non-violent offenders with chronic substance abuse disorders.

The program has 12 traditional drug courts, two juvenile drug courts, and several specialized court programs staffed by the Los Angeles County Public Defender based on the drug court model.

These specialty courts include:

  • Co-Occurring Disorders Court;
  • Adult Drug Court;
  • Juvenile Drug Court;
  • Sentenced Offender Drug Court;
  • Homeless Alternative (HALO) Mental Health Court;
  • Project S.T.A.R.;
  • Veteran's Court; and
  • Women's Reentry Court.

How does L.A. drug court work?

Los Angeles County drug courts work on a non-adversarial, collaborative basis among judicial officers, prosecutors, defense lawyers, probation officers and community-based treatment providers.

Treatment and recovery services are based on the participants' severity of addiction and treatment needs.

Approximately 70% of L.A. Drug Court graduates that successfully complete the program remain conviction-free in the five years following their graduation. This is significantly lower than the recidivism rate for similar individuals who do not participate in a drug court program.

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

TheSan Francisco court systemoffers a unique program that is referred to as their "back on track" program. This drug diversion program is specific to:

  • offenders who are 18-30 years of age, and
  • 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).

How does “back on track” work?

"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. Penal Code 1000.8

Charged with drug possession? Call us for help...

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If you or a loved one has been charged with a California drug crime, we invite you to contact us for a free consultation.

Our California drug crimes defense attorneys can help you decide whether to fight the charges or to seek treatment under Penal Code 1000 pretrial diversion or another California drug diversion program.

Call us at 855-JUSTICE or complete the form on this page to discuss your case in confidence with a caring and knowledgeable lawyer.

We can also help you if you have been charged with a Nevada drug crime and are interested in Nevada's drug court and diversion programs.

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