Orange County Criminal Defense

New Diversion Law Under PC 1000

There are changes in the criminal laws every year, but there have been some really big changes in 2018.  One of those changes is the modification to Penal Code section 1000.  Before 2018, PC 1000 used to outline the format for Deferred Entry of Judgment, a program that allows defendants in certain drug offenses to plead guilty but then withdraw their guilty pleas after a certain time assuming they completed a drug class and stayed out of trouble.  However, the new PC 1000 outlines the format for Pretrial Drug Diversion, which is much better than the old PC 1000 in multiple ways, but worse in one way.  Here are the main differences:

Pleading guilty or not guilty – In the new PC 1000, a defendant does not have to plead guilty to accept drug diversion.  Under the old PC 1000, a defendant had to plead guilty in order to be accepted into the program.  This is a big difference because when a defendant is not required to plead guilty, then there are usually no immigration consequences or professional licensing consequences to participating in the program.

Length of program – In the new PC 1000, the program will last 12 – 18 months.  Under the old PC 1000, the program lasted 18 – 36 months (although it was almost always 18 months).

Who qualifies – In the old PC 1000, there were several circumstances that led to disqualification including completion of the PC 1000 program within the last five years, or any prior drug conviction no matter how long ago, or any prior probation violation no matter how long ago.  In the new PC 1000, some of these disqualifications don’t exist.  There are no disqualifications for previously completing the PC 1000 program, even if its within the last 5 years and no disqualification for prior probation violation.  There is a disqualification for prior drug convictions within the last five years only and only for drug offenses that are not covered by this statute.  However, there are some disqualifications that still exist.  A defendant still cannot be charged with a crime of threats or violence – PC 1000(a)(2).  A defendant still cannot be charged with other drug offenses that are not covered by this statute – PC 1000 (a)(3).    A defendant still cannot have any felony convictions within the last five years – PC 1000(a)(4).

Giving up jury trial – This is the one minor drawback to the new PC 1000.  In the new PC 1000, a defendant must give up the right to a jury trial if he falls out of the PC 1000 program and wants to fight his charge.  The defendant still has the right to a bench trial (which means trial in front of a judge only and no jury).  Under the old PC 1000, the defendant never had to give up the right to a jury trial but then the defendant normally wouldn’t get trial because the old PC 1000 required a defendant to plead guilty first.

Overall, the new PC 1000 is a much better statute for people accused of minor substance offenses.  However, major drug charges, such as possession for sale are still not included in this statute.  PC 1000 is designed to help the users, not the sellers.

The full text of the new PC 1000 statute is here:

(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of Section 11350, 11357, 11364, or 11365, paragraph (2) of subdivision (b) of Section 11375, Section 11377, or Section 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code, or Section 11358 of the Health and Safety Code if the marijuana planted, cultivated, harvested, dried, or processed is for personal use, or Section 11368 of the Health and Safety Code if the narcotic drug was secured by a fictitious prescription and is for the personal use of the defendant and was not sold or furnished to another, or subdivision (d) of Section 653f if the solicitation was for acts directed to personal use only, or Section 381 or subdivision (f) of Section 647 of the Penal Code, if for being under the influence of a controlled substance, or Section 4060 of the Business and Professions Code, 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) 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 this subdivision.

(2) The offense charged did not involve a crime of violence or threatened violence.

(3) There is no evidence of a contemporaneous violation relating to narcotics or restricted dangerous drugs other than a violation of the offenses listed in this subdivision.

(4) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.

(b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (4), inclusive, of subdivision (a) apply to the defendant. 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 pretrial diversion at the arraignment. If the defendant is found ineligible for pretrial diversion, 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 pretrial diversion is a postconviction appeal.

(c) All referrals for pretrial diversion granted by the court pursuant to this chapter shall be made only to programs that have been certified by the county drug program administrator pursuant to Chapter 1.5 (commencing with Section 1211) of Title 8, or to 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. The defendant may request to be referred to a program in any county, as long as that program meets the criteria set forth in this subdivision.

(d) Pretrial diversion for an alleged violation of Section 11368 of the Health and Safety Code shall not prohibit any administrative agency from taking disciplinary action against a licensee or from denying a license. This subdivision does not expand or restrict the provisions of Section 1000.4.

(e) Any defendant who is participating in a program authorized in this section may be required to undergo analysis of his or her urine for the purpose of testing for the presence of any drug as part of the program. However, urinalysis results shall not be admissible as a basis for any new criminal prosecution or proceeding.

If you have more questions about PC 1000, visit our website or call our toll free number (877-RIGHT-14) for a free consultation.

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