Penal Code section 1000 and Proposition 36
CALIFORNIA PENAL CODE SECTION 1000
California Penal Code section 1000 (PC 1000) allows for certain first time drug offenders to avoid suffering a conviction by putting the individuals through a series of drug related education and treatment programs. Defendants who successfully complete the program will earn an automatic dismissal of their case.
In order for a defendant to be eligible for PC1000, the defendant must meet several requirements. Specifically:
1) The defendant must not have a prior drug conviction. PC 1000 is only available to first time offenders of a drug-related crime.
2) The offense charged must not involve any violence or threat of violence.
3) There is no evidence of any other drug-related violation not covered by PC 1000. That is, the present offense cannot be singled-out for diversion if there are other drug-related violations that are not eligible for PC 1000.
4) The defendant has never been terminated from probation or parole unsuccessfully.
5) The defendant has not been diverted due to a drug-related offense within the last 5 years. Even if the defendant successfully completed the requirements of diversion previously, the fact that he or she had been diverted within 5 years would disqualify the defendant from taking advantage of PC 1000.
6) The defendant does not have a felony conviction within 5 years of the alleged commission of the present drug-related offense.
If the defendant is eligible for diversion pursuant to PC 1000, the law states that the prosecuting authority shall file a declaration stating that the defendant is eligible with the court. In addition, the law requires that the defendant’s eligibility be made known to the defendant and his attorney. If the prosecuting authority makes the determination that the defendant is not eligible for diversion pursuant to PC 1000, the prosecuting authority must file with the court a declaration stating the grounds upon which ineligibility was determined. If a defendant is found not to be eligible for PC 1000 diversion, the defendant may seek a post-conviction appeal.
WHAT KIND OF DRUG OFFENSES ARE COVERED?
PC 1000 is only available to individuals charged with a drug-offense related to personal use. PC 1000 is not eligible to defendants charged with possession for sale. Some common offenses covered by PC 1000 are:
- Health and Safety Code 11350 – possession of a schedule III, IV, or V drug
- Health and Safety Code 11357 – possession of marijuana
- Health and Safety Code 11364 – possession of paraphernalia
- Health and Safety Code 11365 – presence in area where illegal drugs are being used with knowledge and intent to aid or abet its use
- Health and Safety Code 11377 – possession of methamphetamine
- Health and Safety Code 11550 – under the influence of drugs
- Health and Safety Code 11358 – cultivation of marijuana, if the cultivation is for personal use
- Health and Safety Code 11368 – forging a prescription, if the prescription is for personal use
HOW TO TAKE ADVANTAGE OF PC 1000
Generally speaking, if the defendant is found to be eligible for PC 1000 (and the defendant elects to take advantage of PC 1000), the following will occur at the hearing. First, the defendant will enter a plea of guilty to the charge(s). Next, the judge will suspend the criminal proceedings for a time period between 18 months to 3 years. Then, the judge will refer the defendant to a drug rehabilitative program that have been certified by the county drug program administrator or any free of charge program that have been deemed to be credible and effective by the county drug program administrator. The defendant may ask to be referred to an approved program in any county.
WHAT KIND OF EDUCATION AND TREATMENT PROGRAM
The exact drug treatment program will be different depending on what program the individual is referred to. Typically, the drug treatment program will involve weekly meetings and drug testing. To take advantage of PC 1000 diversion, the defendant should be ready and willing to allow the drug treatment program to analyze his or her urine for the purposes of detecting drugs in his or her system. It should be noted however, that this urine test result may not be used as basis for any new criminal proceeding or prosecution. Typically, the drug treatment program will last about 6 months.
FAILURE TO PARTICIPATE SATISFACTORILY IN THE DRUG TREATMENT PROGRAM
The goal of PC 1000 drug diversion is to provide education and treatment to first time drug offenders in lieu of sentencing these offenders to jail time. As such, satisfactory performance at the approved treatment programs is mandatory. If at anytime before the defendant has earned the dismissal the court, the prosecuting authority, or the probation department finds that the defendant is not performing satisfactorily, a court hearing will be held to determine whether the defendant should be terminated from the treatment programs and the judgment of guilt to be entered. Some common reasons for why such a hearing would be held is if: the defendant tests positive for drugs, the defendant fails to attend the treatment programs as instructed, the defendant fails to enroll in the program within the time period ordered, or any evidence tending to show that the defendant is not benefiting from treatment, education, or rehabilitation. In addition, an individual can be terminated from PC 1000 diversion if during the time the criminal proceedings are suspended the individual is convicted of a misdemeanor involving violence, convicted of a felony, or is otherwise shown to be an unfit candidate for diversion.
SUCCESSFUL COMPLETION OF DIVERSION
After the time period for which the judge suspended criminal proceedings, if the defendant has successfully completed the drug treatment program, the case against the defendant will be dismissed. Typically, the defendant will be required to pay a diversion restitution fee and/or an administrative fee.
RAMIFICATIONS OF HAVING A CASE DISMISSED PURSUANT TO PC 1000
Successful completion of PC 1000 diversion has many benefits. As previously mentioned, the case against the defendant will get dismissed. The law specifically states that once a defendant earns a dismissal pursuant to PC 1000, the arrest will be deemed to have never occurred. What this means is that upon dismissal of the case, the individual can legally answer that he or she has never been arrested or granted diversion in regards to the offense. With only a few very specific limitations, the individual do not need to disclose participation in diversion when applying for employment, benefits, certification, and/or licensing.
PROPOSITION 36 (SUBSTANCE ABUSE AND CRIME PREVENTION ACT OF 2000)
In the event that an individual is not eligible for PC 1000 due to a prior drug-related conviction, the individual may be eligible for Prop 36. Prop 36 is a way for individuals charged with certain drug-possession offenses to receive a probationary term in lieu of incarceration.
MAJOR DIFFERENCES BETWEEN PC 1000 AND PROP 36
There are some key differences between PC 1000 and Prop 36.
First, when an individual participates in PC 1000 the judgment of guilt is not entered. As described above, the judge will take the guilty plea but immediately thereafter suspend the criminal proceedings against the defendant to allow the defendant to earn a dismissal before entry of the guilty plea is possible. In Prop 36 however, the judgment of guilt is immediately entered and the defendant is simply granted a chance to earn a dismissal after the fact.
In addition, when participating in PC 1000, the defendant automatically earns a dismissal upon successful completion of the drug treatment program. Under Prop 36 however, the defendant is subjected to many other terms and conditions of probation for which the judge can take in to account in determining whether the case should be dismissed against the defendant. The burden is placed on the defendant to petition the court for a dismissal upon the successful completion of the drug treatment program pursuant to Prop 36.
The duration of the programs is also different. PC 1000 suspends the criminal proceedings for 18 months to 3 years. Under Prop 36 however, the drug treatment program can last only up to a year unless the court makes a finding in court that a longer treatment plan is necessary. In the event the court finds a longer treatment plan is necessary, the court may extend treatment twice for 6 months each time. Treatment under Prop 36 cannot exceed 2 years.
To be eligible for Prop 36, a defendant must meet certain eligibility requirements.
1) The defendant cannot have been previously convicted of a strike felony. A strike felony is any felony that is defined as serious and/or violent felony by the California Penal Code. The exception to this requirement is that a defendant is still eligible for Prop 36 if the strike felony was committed over 5 years ago and the defendant has: 1) not suffered another felony conviction that is not for non-violent possession of drugs and, 2) has not suffered a misdemeanor conviction that involved physical harm or threat of physical harm to another.
2) The current offense charged is a drug-related offense that involves possession for personal use only. While Prop 36 is available to defendants who have previously suffered convictions for drug-related offenses, Prop 36 is not eligible to anyone charged with an offense relating to possession for sale, manufacturing drugs, and/or cultivation of drugs.
3) The defendant must be deemed amendable to treatment and be willing to abide by the terms and conditions of probation.
WHAT KIND OF DRUG OFFENSE ARE COVERED?
PC 1000 and Prop 36 cover many of the same offenses. These include:
• Health and Safety Code 11350 – possession of a schedule III, IV, or V drug
• Health and Safety Code 11357 – possession of marijuana
• Health and Safety Code 11364 – possession of paraphernalia
• Health and Safety Code 11365 – presence in area where illegal drugs are being used with knowledge and intent to aid or abet its use
• Health and Safety Code 11377 – possession of methamphetamine
• Health and Safety Code 11550 – under the influence of drugs
Note however, PC 1000 is available for individuals charged with cultivating if the cultivation is for personal use. Prop 36 specifically excludes cultivation, production, and manufacture of drugs.
FAILURE TO PARTICIPATE SATISFACTORILY IN THE DRUG TREATMENT PROGRAM
If at any time the court, the prosecuting authority, or the probation department finds that the defendant is not in compliance with probation, and/or the treatment program, a probation violation hearing will be held. At the hearing, the court will revoke probation and re-evaluate the defendant’s amenability to the Prop 36 drug treatment program. If the court finds that the defendant is not amenable to the program, the defendant will be terminated from the program and lose the chance to earn the dismissal.
SUCCESSFUL COMPLETION OF DIVERSION
Upon successful completion of the drug program, the individual may petition the court to dismiss his or her case. The judge will consider whether the individual has indeed completed all the program requirements as well as consider whether the individual has been in “substantial compliance” with the terms and conditions of probation. If the court is satisfied with the individual’s performance, the court may dismiss the case against the individual.
RAMIFICATIONS OF HAVING A CASE DISMISSED PURSUANT TO Prop 36
Upon the court’s dismissal of the case, the same benefits from successfully competing PC 1000 diversion applies. That is, the arrest will be deemed to have never occurred. The individual does not have to disclose the arrest with only some very specific limitations.