Pre-trial Diversion For Drug Crimes (Penal Code 1000 PC)

What is California Penal Code 1000 PC Pre-Trial Diversion For Drug Crimes?

California law allows for some defendants to go through drug treatment in lieu of a prison sentence.  Because this process diverts defendants away from prison and into treatment programs, the program is called a Pre-Trial Diversion Program.  California’s pre-trial diversion program is put into legal effect through Penal Code 1000 PC. It is only available on drug charges concerning “simple possession.”  California Penal Code 1000 PC is an opportunity for many defendants charged with non-violent drug crimes to avoid prison and to get much needed drug treatment.  In addition, if you successfully complete the California Penal Code 1000 PC Pre-Trial Diversion Program requirements, then the charges you faced are discharged.  As a result, for almost all purposes, there will be no blemish on your criminal history.

In the past, the California Penal Code 1000 PC Pre-Trial Diversion Program was referred to as “deferred entry of judgment.”  Under the old rules, a defendant had to plead guilty to the drug charges before they could partake in the diversion program.  After the defendant completed their drug treatment plan, the charges they previously plead to would be dismissed.  In the situation that the defendant did not fulfill all the requirements of the their drug treatment plan, then they would remain guilty.

Fortunately, California’s current drug diversion laws are a little more favorable towards defendants.  Currently, if eligible, you can enter a plea of “not guilty” before partaking in the California Penal Code 1000 PC Pre-Trial Diversion Program.  If the drug treatment plan is successfully finished, then all the pertinent charges will still be discharged.  The difference is if you do not finish your drug treatment plan, you will not suddenly be labeled “guilty.”  Rather, you will still have a right to a trial hearing, where a judge will make the ultimate verdict of guilt or innocence based on a review of the evidence.  Note, that under the pre-trial diversion laws, you must forsake your right to a jury trial if you choose to enter the California Penal Code 1000 PC Pre-Trial Diversion Program and fail to meet the requirements.  However, you still have a right to a “bench trial” (where the judge makes the verdict decision).

The California Penal Code 1000 PC Pre-Trial Diversion Program takes about one year to a year and a half to complete. (Under the old laws, the program could take up to three years to finish.)  However, you are allowed to request more time to complete your requirements. 

Eligibility For California Penal Code 1000 PC Pre-Trial Diversion Program

A defendant qualifies for California Penal Code 1000 PC Pre-Trial Diversion if the charges they face are only for “simple possession” of drugs.  In other words, they are facing drugs charges for personal usage alone.  Hence, if you are facing charges related to vending or distributing of drugs, you do not qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.  Additionally, if you are facing charges for the carrying or holding of drugs with the purpose of selling them, then you do not qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.

Under the old rules, you could be disqualified from partaking in the drug diversion program if you had a past conviction for a drug offense.  However, the new rules only prohibit you from partaking in the California Penal Code 1000 PC Pre-Trial Diversion Program if you were previously convicted of a serious drug offense.  And even then, the serious drug conviction must have occurred within the last five years.  Hence, if you had a serious drug conviction more than five years ago, you may still qualify to partake in the California Penal Code 1000 PC Pre-Trial Diversion Program.

Additionally, under the old rules, a defendant could not partake in the diversion program more than once within a time-frame of five years.  However, as the law now stands, prior enrollment in a drug diversion program does not make you ineligible for the California Penal Code 1000 PC Pre-Trial Diversion Program,

What are the legal requirements to qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program?

To qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program, you must meet all of the following prerequisites:

  1. You must be charged for an eligible offense enumerated in Penal Code 1000 (see below)
  2. You must not have earned a conviction of a drug crime of a non-Penal Code 1000 eligible drug offense in the last five years.
  3. You must not be charged with an offense that involves either violence or the threat of it.
  4. The evidence must not indicate that a more severe drug offense had occurred.
  5. You must not have earned a felony in the last five years.

Now, we will discuss each of these prerequisites in more detail.  This will give you a sense of whether or not you qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.  However, make sure to talk to an experienced criminal defense attorney to find out if you qualify and if it’s the best step for you.

Charged Drug Crimes that Qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program

  • PC 11350 -- possession of controlled substances,
  • PC 11357 – unlawful possession of cannabis,
  • PC11364 -- possession of drug paraphernalia,
  • PC 11365 -- aiding or abetting the use of an unlawful controlled substance,
  • PC 11375(b)(2) – unlawful possession of certain prescription sedatives,
  • PC 11377 – possession of methamphetamines for personal use,
  • H&S Code 11550– being under the influence of a controlled substance,
  • VC 23222 (b) – possessing an open container of Cannabis in a motor vehicle,
  • H&S Code 11358 – unlawful cultivation of Cannabis for personal use,
  • H&S Code 11368 – possessing or using a forged prescription to obtain drugs for personal use,
  • PC 653f(d) – soliciting someone to commit a crime to facilitate the defendant's personal use of narcotics,
  • PC 381 -- possession of toxic substances for “huffing,”
  • PC 647 (f) -- lewd conduct related to being under the influence of a controlled substance, and
  • BPC 4060 -- possession of a controlled substance. Penal Code 1000 (a)(2).

The specific drugs that qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program include, but are not limited to, the following: cocaine, heroin, peyote, BHG, ecstasy, ketamine, methamphetamines, marijuana, some hallucinogens (example: PCP), prescriptive opioids.

However, the court will not look too deeply into the type of drug that leads to the drug charges.  Rather, the court will consider in more detail whether the evidence indicates that the drugs were for personal usage as opposed to for the purpose of selling them.  Additionally, the court will consider in detail whether or not the defendant could gain from entering a drug treatment program.

Other Pre-Requisites for California Penal Code 1000 PC Pre-Trial Diversion Program

On top of the prerequisites listed above, you must also meet all of the following to qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program:

  1. You must not have earned a conviction for any offense not listed under Penal Code 1000 in the last five years.
  2. In the commission of the acts that lead to your current drug charges, the alleged crime included any violence or the threat of it.
  3. In the commission of the acts that lead to your current drug charges, there is no indication of any concurrent criminal acts involving drug offenses outside of those listed in Penal Code 1000.
  4. You have not earned a felony in the last five years.

How to do you get offered the option of the California Penal Code 1000 PC Pre-Trial Diversion Program?

First, the police review your case and decide if they will send it to a prosecutor.  If the prosecutor decides to pursue charges, they will examine your case to see if you qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.  If you qualify, the prosecutor will either let you or your criminal defense attorney know that you qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.

The notice from the prosecutor will include a complete memorandum of the pretrial diversion process.  In addition, the prosecutor will include a generalized description of the various people and powers related to the California Penal Code 1000 PC Pre-Trial Diversion Program.  Furthermore, the prosecutor’s notice will clearly inform you of the prerequisites to qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.  For example, you will have to make a plea of not guilty on all the qualified drug charges and waive certain rights (such as your right to a prompt trial or a jury trial).  The prosecutor will also let you know that the California Penal Code 1000 PC Pre-Trial Diversion Program could be ended if you fail to meet any of the requirements of the program or commit a disqualifying offense.  The notice will include information on your legal rights relating to criminal records and what your options are when answering questions regarding your past criminal history if you successfully finish the California Penal Code 1000 PC Pre-Trial Diversion Program.

Probation Investigation

Before the court makes a decision regarding your eligibility for the California Penal Code 1000 PC Pre-Trial Diversion Program, the court has the option of requiring a probation investigation of your case.  In this investigation, a probation officer will look at how old you are, your employment history, your military history, your education history, and your family network.  In addition, the probation officer will look into your past drug treatment history and whether it was successful.  Lastly, the probation officer will determine whether or not you seem motivated to overcome any lingering drug issues and to successfully complete the drug program.

The communications you make to the probation officer during the investigation cannot be used as evidence against you to convict you of the drug charges.  Your statements will be considered “inadmissible evidence.”  Your communications with the probation officer will be used only to ascertain whether or not you can gain from a drug treatment plan.

At the end of the investigation, the probation officer will make a recommendation to court regarding the type of treatment plan they believe will help the defendant.  They will only recommend a program that will enroll the defendant.  However, the judge has the final authority over which type of treatment plan the defendant will be asked to attend to qualify for the California Penal Code 1000 PC Pre-Trial Diversion Program.  In the end, the defendant has the choice of agreeing to their participation in the California Penal Code 1000 PC Pre-Trial Diversion Program.

Remember, as discussed above, in order to participate in the California Penal Code 1000 PC Pre-Trial Diversion Program, you will need to enter a plea of “not guilty” to all the relevant charges.  Furthermore, you will have to waive your right to a quick trial and to a jury trial.  After this is done, the judge will drop any bail requirements.  As you continue with your drug treatment plan, the probation officer will file periodic updates with the judge.

If you do not want to partake in the California Penal Code 1000 PC Pre-Trial Diversion Program or if the judge decides your participation is not proper in your situation, then your case will move forward as any other case.  You will have a right to a quick trial and a jury trial.  You will proceed through the normal criminal prosecution process.

How Does the Drug Program Operate?

Your individual California Penal Code 1000 PC Pre-Trial Diversion Program must be one that is licensed by your local drug treatment supervisor.  This supervisor is hired by the local county to certify programs according to the rules and regulations mandated by state law.  Alternatively, you may enroll in a program that has been marked as reliable and successful by both the judge and your local drug treatment supervisor.  This program must be free and cannot charge you any money to partake.  You have the option of enrolling in a program outside of the county if it fulfills the requirements above.

The California Penal Code 1000 PC Pre-Trial Diversion Program takes about 1 year to 1.5 years to finish.  However, you can ask the judge for more time to finish your requirements.  During the program, you may have to submit to a urine drug test.  These results can only be utilized for judging your observance with the treatment plan.  A failed drug test cannot lead to new drug charges.  However, it can lead to the dissolution of your California Penal Code 1000 PC Pre-Trial Diversion Program.  Additionally, your communications through the California Penal Code 1000 PC Pre-Trial Diversion Program cannot be used as evidence against you on the original drug charges.

In order to partake in the California Penal Code 1000 PC Pre-Trial Diversion Program, you will be mandated to pay a “Diversion Restitution Fee.”  This fee will be used to pay for your probation oversight and investigation costs that occurred before you made a plea.  By law, this fee cannot be more than a $1000 but it will be at least $100.  The judge will determine the specific amount by looking at various factors including, but not limited to, your income and the severity of the drug charges.  In certain situations, the judge will waive the fee altogether.

Your California Penal Code 1000 PC Pre-Trial Diversion Program will be prematurely ended if any of the following occur:

  1. You do not meet the requirements of your treatment plan.
  2. You are convicted with a felony.
  3. You are convicted with a crime that indicates a tendency towards violent behavior.

There will be a hearing to determine if any of the above occurred. If the judge determines it has, then your California Penal Code 1000 PC Pre-Trial Diversion Program will be ended.

  • What happens if you complete the California Penal Code 1000 PC Pre-Trial Diversion Program successfully?

If you successfully finish your California Penal Code 1000 PC Pre-Trial Diversion Program, then your related arrest will be considered to have never happened for all but some limited purposes.  Therefore, if you are asked a question regarding your past criminal history, you can honestly answer “no” in regards to the offense in which you completed the pretrial diversion for.  However, if you are applying to become a police officer, you must mention this relevant arrest/offense.  There are other situations, such as on an immigration application, where this may also be the case.  Furthermore, California licensing agencies (such as those for nursing, physicians, dentists, etc.) can still take account the arrest for purposes of disciplining or denying a license.  You should talk with a knowledgeable criminal defense attorney about a particular application process and whether you should answer “no” to the question of whether you have ever been arrested.

  • Other Options for Drug Diversion

California maintains other pretrial diversions besides the California Penal Code 1000 PC Pre-Trial Diversion Program.  Diversion programs are offered though Prop 36, California’s drug courts (which are only available for those represented by a public defender), military diversion, and mental health diversion.  Talk to a skilled criminal defense attorney to find out which program is right for you.

California Proposition 36

California Penal Code 1000 PC Pre-Trial Diversion Program is available to a large array of drug crimes.  Prop 36 does not apply to the growing of marijuana or faking medical prescriptions.  Additionally, Prop 36 will require that you enter a plea of guilty before entering into prop 36 programs.  The positive benefit of Prop 36 is that a defendant is automatically eligible if they meet the requirements.  This stands in contrast to California Penal Code 1000 PC Pre-Trial Diversion Program where the court has a large amount of latitude in entering or denying admission.  The negative side is that even after you finish the Prop 36 program, the judge has the ability to not discharge the charges.  This stands in contrast to California Penal Code 1000 PC Pre-Trial Diversion Program, where if the requirements are met, the charges are automatically discharged.

Los Angeles County Drug Court Programming

Los Angeles maintains a series of traditional and untraditional drug courts designed to get offenders treatment instead of prison time.  In this court, the judge, the prosecutor, the defense attorney, and other stakeholders all work together to come up with the best treatment plan for the defendant.  It is a highly successful program and nationally lauded.

What should I do if I am charged with a drug offense?

Our skilled and knowledgeable criminal defense attorneys will be happy to talk with you about your case.  They will review the specific circumstances of your case and will happily explain your options regarding legal defenses, sentencing, and diversion programs.  They can help you design a legal strategy that will maximize the best possible outcome in your case.  This may include diversion or it may involve fighting the charges outright.

For a free consultation, please call 424-333-0943.

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