Fresno lawyer Melina Benninghoff is a criminal defense attorney representing clients in state & federal criminal matters in Fresno, Fresno County and other cities and counties throughout California

1000.  (a) This chapter shall apply whenever a case is before any
court upon an accusatory pleading for a violation of Section 11350,
11357, 11364, 11365, 11377, or 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) 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parole has ever been revoked without thereafter being completed.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.
   (b) The prosecuting attorney shall review his or her file to
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 superior 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.
   (c) All referrals for deferred entry of judgment 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) Deferred entry of judgment for a 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.  Nothing in this subdivision shall be construed to
expand or restrict the provisions of Section 1000.4.
   (e) Any defendant who is participating in a program referred to 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, urine analysis results shall not be admissible
as a basis for any new criminal prosecution or proceeding.




1000.1.  (a) If the prosecuting attorney determines that this
chapter may be applicable to the defendant, he or she shall advise
the defendant and his or her attorney in writing of that
determination.  This notification shall include the following:
   (1) A full description of the procedures for deferred entry of
judgment.
   (2) A general explanation of the roles and authorities of the
probation department, the prosecuting attorney, the program, and the
court in the process.
   (3) A clear statement that in lieu of trial, the court may grant
deferred entry of judgment with respect to any crime specified in
subdivision (a) of Section 1000 that is charged, provided that the
defendant  pleads guilty to each such charge and waives time for the
pronouncement of judgment, and that upon the defendant's successful
completion of a program, as specified in subdivision (c) of Section
1000, the positive recommendation of the program authority and the
motion of the prosecuting attorney, the court, or the probation
department, but no sooner than 18 months and no later than three
years from the date of the defendant's referral to the program, the
court shall dismiss the charge or charges against the defendant.
   (4) A clear statement that upon any failure of treatment or
condition under the program, or any circumstance specified in Section
1000.3, the prosecuting attorney or the probation department or the
court on its own may make a motion to the court for entry of judgment
and the court shall render a finding of guilt to the charge or
charges pled, enter judgment, and schedule a sentencing hearing as
otherwise provided in this code.
   (5) An explanation of criminal record retention and disposition
resulting from participation in the deferred entry of judgment
program and the defendant's rights relative to answering questions
about his or her arrest and deferred entry of judgment following
successful completion of the program.
   (b) If the defendant consents and waives his or her right to a
speedy trial or a speedy preliminary hearing, the court may refer the
case to the probation department or the court may summarily grant
deferred entry of judgment if the defendant pleads guilty to the
charge or charges and waives time for the pronouncement of judgment.
When directed by the court, the probation department shall make an
investigation and take into consideration the defendant's age,
employment and service records, educational background, community and
family ties, prior controlled substance use, treatment history, if
any, demonstrable motivation, and other mitigating factors in
determining whether the defendant is a person who would be benefited
by education, treatment, or rehabilitation.  The probation department
shall also determine which programs the defendant would benefit from
and which programs would accept the defendant.  The probation
department shall report its findings and recommendations to the
court.  The court shall make the final determination regarding
education, treatment, or rehabilitation for the defendant.  If the
court determines that it is appropriate, the court shall grant
deferred entry of judgment if the defendant pleads guilty to the
charge or charges and waives time for the pronouncement of judgment.

   (c) No statement, or any information procured therefrom, made by
the defendant to any probation officer or drug treatment worker, that
is made during the course of any investigation conducted by the
probation department or treatment program pursuant to subdivision
(b), and prior to the reporting of the probation department's
findings and recommendations to the court, shall be admissible in any
action or proceeding brought subsequent to the investigation.
   No statement, or any information procured therefrom, with respect
to the specific offense with which the defendant is charged, that is
made to any probation officer or drug program worker subsequent to
the granting of deferred entry of judgment, shall be admissible in
any action or proceeding, including a sentencing hearing.
   (d) A defendant's plea of guilty pursuant to this chapter shall
not constitute a conviction for any purpose unless a judgment of
guilty is entered pursuant to Section 1000.3.



1000.2.  The court shall hold a hearing and, after consideration of
any information relevant to its decision, shall determine if the
defendant consents to further proceedings under this chapter and if
the defendant should be granted deferred entry of judgment.  If the
court does not deem the defendant a person who would be benefited by
deferred entry of judgment, or if the defendant does not consent to
participate, the proceedings shall continue as in any other case.
   At the time that deferred entry of judgment is granted, any bail
bond or undertaking, or deposit in lieu thereof, on file by or on
behalf of the defendant shall be exonerated, and the court shall
enter an order so directing.
   The period during which deferred entry of judgment is granted
shall be for no less than 18 months nor longer than three years.
Progress reports shall be filed by the probation department with the
court as directed by the court.



1000.3.  If it appears to the prosecuting attorney, the court, or
the probation department that the defendant is performing
unsatisfactorily in the assigned program, or that the defendant is
not benefiting from education, treatment, or rehabilitation, or that
the defendant is convicted of a misdemeanor that reflects the
defendant's propensity for violence, or the defendant is convicted of
a felony, or the defendant has engaged in criminal conduct rendering
him or her unsuitable for deferred entry of judgment, the
prosecuting attorney, the court on its own, or the probation
department may make a motion for entry of judgment.
   After notice to the defendant, the court shall hold a hearing to
determine whether judgment should be entered.
   If the court finds that the defendant is not performing
satisfactorily in the assigned program, or that the defendant is not
benefiting from education, treatment, or rehabilitation, or the court
finds that the defendant has been convicted of a crime as indicated
above, or that the defendant has engaged in criminal conduct
rendering him or her unsuitable for deferred entry of judgment, the
court shall render a finding of guilt to the charge or charges pled,
enter judgment, and schedule a sentencing hearing as otherwise
provided in this code.
   If the defendant has performed satisfactorily during the period in
which deferred entry of judgment was granted, at the end of that
period, the criminal charge or charges shall be dismissed.
   Prior to dismissing the charge or charges or rendering a finding
of guilt and entering judgment, the court shall consider the
defendant's ability to pay and whether the defendant has paid a
diversion restitution fee pursuant to Section 1001.90, if ordered,
and has met his or her financial obligation to the program, if any.
As provided in Section 1203.1b, the defendant shall reimburse the
probation department for the reasonable cost of any program
investigation or progress report filed with the court as directed
pursuant to Sections 1000.1 and 1000.2.



1000.4.  (a) Any record filed with the Department of Justice shall
indicate the disposition in those cases deferred pursuant to this
chapter.  Upon successful completion of a deferred entry of judgment
program, the arrest upon which the judgment was deferred shall be
deemed to have never occurred.  The defendant may indicate in
response to any question concerning his or her prior criminal record
that he or she was not arrested or granted deferred entry of judgment
for the offense, except as specified in subdivision (b).  A record
pertaining to an arrest resulting in successful completion of a
deferred entry of judgment program shall not, without the  defendant'
s consent, be used in any way that could result in the denial of any
employment, benefit, license, or certificate.
   (b) The defendant shall be advised that, regardless of his or her
successful completion of  the deferred entry of judgment program, the
arrest upon which the judgment was deferred may be disclosed by the
Department of Justice in response to any peace officer application
request and that, notwithstanding subdivision (a), this section does
not relieve him or her of the obligation to disclose the arrest in
response to any direct question contained in any questionnaire or
application for a position as a peace officer, as defined in Section
830.


1000.5.  (a) The presiding judge of the superior court, or a judge
designated by the presiding judge, together with the district
attorney and the public defender, may agree in writing to establish
and conduct a preguilty plea drug court program pursuant to the
provisions of this chapter, wherein criminal proceedings are
suspended without a plea of guilty for designated defendants.  The
drug court program shall include a regimen of graduated sanctions and
rewards, individual and group therapy, urine analysis testing
commensurate with treatment needs, close court monitoring and
supervision of progress, educational or vocational counseling as
appropriate, and other requirements as agreed to by the presiding
judge or his or her designee, the district attorney, and the public
defender.  If there is no agreement in writing for a preguilty plea
program by the presiding judge or his or her designee, the district
attorney, and the public defender, the program shall be operated as a
deferred entry of judgment program as provided in this chapter.
   (b) The provisions of Section 1000.3 and Section 1000.4 regarding
satisfactory and unsatisfactory performance in a program shall apply
to preguilty plea programs.  If the court finds that (1) the
defendant is not performing satisfactorily in the assigned program,
(2) the defendant is not benefiting from education, treatment, or
rehabilitation, (3) the defendant has been convicted of a crime
specified in Section 1000.3, or (4) the defendant has engaged in
criminal conduct rendering him or her unsuitable for the preguilty
plea program, the court shall reinstate the criminal charge or
charges.  If the defendant has performed satisfactorily during the
period of the preguilty plea program, at the end of that period, the
criminal charge or charges shall be dismissed and the provisions of
Section 1000.4 shall apply.



1000.8.  (a) Where a person is participating in a deferred entry of
judgment program or a preguilty plea program pursuant to this
chapter, the person may also participate in a licensed methadone or
levoalphacetylmethadol (LAAM) program if the following conditions are
met:
   (1) The sheriff allows a methadone program to operate in the
county jail.
   (2) The participant allows release of his or her medical records
to the court presiding over the participant's preguilty or deferred
entry program for the limited purpose of determining whether or not
the participant is duly enrolled in the licensed methadone or LAAM
program and is in compliance with deferred entry or preguilty plea
program rules.
   (b) If the conditions specified in paragraphs (1) and (2) of
subdivision (a) are met, participation in a methadone or LAAM
treatment program shall not be the sole reason for exclusion from a
deferred entry or preguilty plea program.  A methadone or LAAM
patient who participates in a preguilty or deferred entry program
shall comply with all court program rules.
   (c) A person who is participating in a deferred entry of judgment
program or preguilty plea program pursuant to this chapter who
participates in a licensed methadone or LAAM program shall present to
the court a declaration from the director of the methadone or LAAM
program, or the director's authorized representative, that the person
is currently enrolled and in good standing in the program.
   (d) Urinalysis results that only establish that a person described
in this section has ingested or taken the methadone administered or
prescribed by a licensed methadone or LAAM program shall not be
considered a violation of the terms of the deferred entry of judgment
or preguilty plea program under this chapter.
   (e) Except as provided in subdivisions (a) to (d), inclusive, this
section shall not be interpreted to amend any provisions governing
deferred entry and diversion programs.