California Felony Drug Diversion Program
Commencing in December 1972, sections 1000-1000.4 provided for diversion of defendants charged with enumerated drug offenses including possession of a controlled substance. (Stats. 1972, ch. 1255, 17, pp. 2469-2471.)
Under the diversion program, an eligible defendant did not plead guilty but was diverted and referred for education, treatment, or rehabilitation for a period from six months to two years.
Upon satisfactory completion of the diversionary program, the charges were dismissed and the underlying arrest was deemed not to have occurred.
The Three Strikes law was enacted as urgency legislation on March 7, 1994, and thereafter adopted by the electorate on November 9, 1994.
It provides, inter alia, that if a defendant has been convicted of a felony, and it has been pled and proved that a defendant has one or more prior serious or violent felony convictions, the defendant shall not be committed to any facility other than the state prison, diversion shall not be granted, and the defendant shall not be eligible for commitment to the California Rehabilitation Center. ( 667, subd. (c)(4), 1170.12, subd. (a)(4).)
Approximately three years later, effective January 1, 1997, the Legislature amended sections 1000-1000.4 so as to replace diversion with deferred entry of judgment. (Stats. 1996, ch. 1132, 2.)
Under the deferred entry of judgment program for drug abuse, a defendant charged with certain enumerated drug offenses, including possession of a controlled substance, may enter a plea of guilty, participate in a drug rehabilitation program, and, upon completion of the program, have the charges dismissed.
The provisions for deferred entry of judgment are available if a defendant satisfies the requirements set forth in section 1000, subdivision (a)(1)-(6).
The court then must determine whether the defendant is suitable for participation pursuant to section 1000.2. This requires the court to determine whether the defendant would be "benefited" by the deferred entry of judgment procedure. ( 1000.2.)
If found suitable, the defendant must waive the right to a speedy trial, plead guilty and thereafter participate in a designated program for at least 18 months, but no longer than three years. ( 1000.1, 1000.2.) If the defendant fails to perform satisfactorily, the prosecutor, the probation officer, or the court on its own motion may seek entry of judgment. ( 1000.3.)
If the court finds the defendant has failed to perform satisfactorily, "the court shall render a finding of guilt to the charge . . ., enter judgment, and schedule a sentencing hearing . . . ." ( 1000.3.)
The defendant's plea of guilty does not constitute a conviction for any purpose unless a judgment of guilty is entered as provided in section 1000.3. ( 1000.1, subd. (d).)
Section 1000 states in pertinent part:
"(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, . . . 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."
Section 1000, subdivision (b) describes the deferred entry of judgment eligibility determination process as follows:
"The prosecuting attorney shall . . . 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 municipal 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."