Deferred Entry of Judgment and Diversion

 

Deferred Entry of Judgment is the suspension of criminal proceedings for a prescribed time period with certain conditions after a defendant’s guilty plea.  If the defendant is not successful, criminal proceedings resume, and the defendant, having already pled guilty, is sentenced.  If the defendant is successful in complying with the terms of the deferred entry of judgment, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested or charged with this offense.

 

 

Diversion

A defendant may be able, for certain crimes, to participate in a Diversion Program.  Diversion is the suspension of criminal proceedings for a prescribed time period with certain conditions.  If the defendant is not successful, criminal proceedings resume.  If diversion is successfully completed, the criminal charges are dismissed and the defendant may, with certain exceptions, legally answer that he or she has never been arrested for or charged with the diverted offense.

 

Narcotics and Drug Abuse Cases

Under the new law, which became effective in 1996, if a defendant is found to be eligible for “DEJ”, deferred entry of judgment, he or she must plea guilty to the crime and waive trial for the entry of judgment.  Entry of judgment on the defendant’s plea is then deferred pending the successful completion of a drug program.

 

If the defendant successfully completes the program, the charges are dismissed.  If the program is not completed successfully, the court will enter judgment and schedule a sentencing hearing and the defendant is subsequently sentenced for the crime. 

 

Requirement

 

If the defendant is otherwise eligible, he or she may be considered for deferred entry of judgment if charged with the following offenses. 

 

  • Possession of controlled substances and/or restricted drugs. 
  • Possession of drug paraphernalia.
  • Aiding, assisting or betting the unlawful use of controlled substances.
  • Possession of non-narcotic prescription drugs without a prescription.
  • Using or being under the influence of a controlled substance .
  • Cultivation of Marijuana, if the Marijuana is for personal use.
  • Solicitation to commit a felony if the solicitation is intended for personal use.

 

There are some limitations:

 

  • The defendant cannot have a prior narcotic conviction before the present offense.
  • The crime cannot have involved a crime of violence or threatened violence
  • The only offenses that can be deferred are those listed in Penal Code 1000(a).
  • The defendant, if had on a prior occasion been placed on parole or probation, must have completed such parole or probation successfully.
  • The defendant must not have had a felony conviction within the last 5 years.

 

When can one apply for deferred entry of judgment.

 

The defendant may request or apply for deferred entry of judgment at any time during the criminal proceedings before the trial.  If the prosecutor finds the defendant eligible for deferred entry of judgment, a hearing must be held.  But before this hearing, the court may offer the case to the probation department for the purpose of making a recommendation regarding deferred entry of judgment.

 

At the hearing, the court will consider all relevant facts concerning the defendant and determine if the defendant should be granted deferred entry of judgment.

 

If the defendant does not consent to DEJ, or the court finds the defendant unsuitable for DEJ, the criminal proceedings continue as in any other case.

 

The deferred entry of judgment period lasts for a minimum of 18 months and not more than three years.  Once the defendant has successfully completed all the terms and conditions of deferred entry of judgment, the deferred charges are dismissed and the defendant is legally entitled to a dismissal of the charges and entitled to state that he or she was never arrested for the deferred offense. 

 

Child Abuse and Neglect

Instead of prosecuting a person suspected of committing any crime in which a minor is an alleged victim of neglect and/or abuse.  The prosecutor may refer the defendant to the probation department to determine eligibility for counseling or psychological treatment.

 

When the case involves a crime of molestation or sexual abuse, the code provides a deferred entry of judgment program.  These are some of the requirements considered if the prosecutor is to determine eligibility. 

·        Deferred Entry of judgment must be in the best interest of the minor.

·        Rehabilitation of the defendant is feasible. 

·        There is no threat of harm to one minor

·        The defendant pleads guilty to all charges and enhancements

·        The charged offense does not include a crime charged  under Penal Code Sec., 288(b) or involves force, violence, duress, or fear of immediate bodily injury to the minor. 

·        The defendant meets the requirements under Penal Code Section 1000.13.

 

There must be a written agreement between the prosecutor and the defendant, and the following requirements must be met:

·        The defendant must be a family member of the victim.

·        The defendant’s criminal record does not indicate that diversion has been terminated, or that probation or parole has been revoked without thereafter being completed within the previous 10 years.

·        The defendant has not been previously referred for counseling under Penal Code section 1000.12-1000.17 and

·        The defendant has no prior conviction for any felony sexual offense, or in any offense in which the minor is a victim of sexual abuse, and had had no conviction for any violent felony during the previous 10 years in which the applicant has been out of jail.

 

Once it is determined that the defendant is eligible and the prosecution consents to its imposition it must be granted under the following terms:

·        The defendant must participate in a rehabilitation program as prescribed by the district attorney.

·        The defendant must not use drugs of any kind without a prescription and must not associate with known drug users.

·        The defendant must submit his person, property, automobile, and any other objects under his control or her control to to search and seizure by any law enforcement personnel.

·        There must not be contact with the minor unless approved by the district attorney.

·        The defendant must obey all laws, violation of any law constitutes failure of treatment.

 

Termination

 

If the defendant completes the program within 5 years, upon the recommendation of the district attorney, the court must dismiss the charges.

 

If the defendant does not successfully complete the program, the prosecuting attorney may make a motion to the court for entry of judgment, and the court must, on a finding that there was a failure to complete the program, set aside a sentencing hearing, where the defendant will ultimately be sentenced.