CALIFORNIA PROPOSITION 36 or “PROP 36” 

California voters in the November 2000 election passed California Proposition 36 or “Prop 36”.  It requires that non-violent drug offenders who meet the standard of eligibility serve their sentence in an approved drug treatment program instead of in a county jail or state prison.

At the Law Offices of Pereira & Moffatt, our drug attorneys are experienced in getting clients accused of drug charges into treatment programs such as those authorized under Prop 36.  We believe that alternative adjudication systems like Prop 36 and PC1000 “Diversion” can both provide much-needed treatment and rehabilitation for drug addiction.  Furthermore, these alternative systems of adjudication keep clients accused of drug charges out of the traditional criminal justice system, where no such treatment options exist.

 

What is Prop 36?

 Prop 36 is contained with CA Penal Code 1210 and 1210.1.  It is one type of “drug diversion”.  We refer to programs that offer treatment and rehabilitation instead of incarceration as “diversion” programs, because these programs divert the accused away from the traditional criminal justice system towards alternative systems designed for those with substance abuse problems.

A court-approved drug treatment and rehabilitation program will typically include the following:

  1. Drug education classes,

  2. Outpatient services or residential treatment,

  3. Detoxification procedures or narcotic replacement therapy,

  4. Some sort of follow-up treatment or services.

Prop 36 requires that those convicted of first or second-time nonviolent drug possession charges receive up to 12 months of treatment in lieu of incarceration.  It also prohibits incarceration, as a term of probation or parole, unless a violation of probation or parole occurs.

How is Prop 36 different from PC1000 “Diversion” or “Deferred Entry of Judgment” (“DEJ”)?

Penal Code 1000 “Diversion” or “DEJ” HOTLINK is a program exclusively for first-time offenders. Furthermore, drug offenders are not eligible for Prop 36 if there is a simultaneous non-drug related charge with the underlying drug charge.  PC1000 “DEJ” has no such limitation. 

Am I eligible for Prop 36? 

Prop 36 is designed to help those who are addicted to all types of drugs.  These drugs include marijuana, cocaine, heroin, “ecstasy”, methamphetamines, PCP, and prescription drugs such as codeine and hydrocodone or “Vicodin”.

Prop 36 is designed to help those who are charged with personal possession crimes.  Those crimes include:

  1. Health and Safety Code 11377 and HS 11350 – Possession of a Controlled Substance

  2. Health and Safety Code 11550 – Being Under the Influence of a Controlled Substance

If you have been charged with a California drug sales crime, such as:

  1. Health and Safety Code 11351 – Possession for Sale of a Controlled Substance

  2. Health and Safety Code 11352 – Sale or Transportation of a Controlled Substance

  3. Health and Safety Code 11360 – Sale or Transportation of Marijuana (not for personal use)

You are generally not eligible for Prop 36.

Other drug crimes that are not eligible for Prop 36 diversion include:

  1. Health and Safety Code 11358 – Cultivation of Marijuana (even for personal use)

  2. Health and Safety Code 11370.1(a) – Possessing a controlled substance while armed with a loaded firearm

  3. Health and Safety Code 11368 – Forging a prescription to obtain controlled narcotics

Even if you have been convicted of a qualifying drug possession offense, you may still be disqualified from Prop 36 diversion.  The court will consider the following in determining eligibility:

  • Prior “Strike” Convictions – Those with prior violent felony convictions which qualify as a “Strike” under California’s 3 Strikes Law are not eligible for Prop 36 sentencing unless it has been at least 5 years since you were released from prison, and either:

    • Were convicted of a felony other than a nonviolent drug offense, or

    • Were convicted of a misdemeanor that involved physical injury or threat of physical injury to another person.

It is important to note that juvenile convictions, even those for violent felonies, are not legally considered criminal “convictions” and thus do not adversely affect Prop 36 eligibility.

It is also important to note that a judge does not have the discretion to dismiss the offense or offenses that render you ineligible for Prop 36 sentencing.

Simultaneous conviction of non-drug related misdemeanor or felony – Those who are convicted of both a nonviolent drug possession crime and a non-drug related misdemeanor or felony at the same time are not eligible for Prop 36. “Non-drug related” crimes are defined as crimes that do not involve:

a.       Possession of drugs or drug paraphernalia,

b.      Failure to register as a drug offender,

c.       Being present when drugs are used,

d.      Any other activity similar to a drug use or personal possession charge.

Courts have held that DUI-Drugs is a “non-drug related” crime that precludes Prop 36 eligibility.  Therefore, if you are convicted of both personal drug possession and DUI-Drugs at the same time, you are not eligible for Prop 36 sentencing.

Unlike “Strike” cases, here a judge has the discretion to dismiss the simultaneous non-drug related charges, in order to make a drug offender Prop 36 eligible.

Refusal of drug treatment,

  1.  You were armed with a firearm or other deadly weapon at the time of the nonviolent drug possession offense,

  2.  You have previously participated in 2 Prop 36 programs and the judge does not think a third would benefit you – If Prop 36 sentencing is denied for this reason, you will be required to serve a minimum 30 days in jail


If I am found eligible for Prop 36 sentencing, can I still fight my case and remain eligible?

Yes!  If you wish to fight your case all the way through trial, your Prop 36 eligibility is not affected even if a jury finds you guilty.

How do I receive a Prop 36 sentence?

There are three ways to be sentenced under Prop 36.

  1. Plead guilty or “no contest” to a non-violent drug possession charge,

  2. Be convicted of a non-violent drug possession charge by a bench or jury trial,

  3. Commit a non-violent drug possession charge while on parole or violate a drug-related term of your parole.

The judge will place you on probation (or in the case of #3, modify the terms of your parole) with the requirement of successfully completing a drug treatment and rehabilitation program as one of the terms of probation/parole.

Unless you violate the terms of probation, including failing to complete a treatment program, the court is prohibited from sentencing you to jail or prison time under Prop 36.

What happens after I complete a Prop 36 drug treatment program?

Once you have successfully completed your Prop 36 drug treatment program and all other terms and conditions of your probation, you may petition the court to dismiss your conviction.

If you face drug charges and want an attorney to assist you in getting into a Prop 36 program or other California drug diversion program, contact the drug charge attorneys at the Law Offices of Pereira & Moffatt for more information.  

DEFERRED ENTRY OF JUDGMENT “DEJ”, OR PC1000

Penal Code 1000 “Diversion” or Deferred Entry of Judgment (“DEJ”) is one of several nontraditional criminal adjudication programs that California offers to those accused of drug charges.  PC1000 Diversion “diverts” those accused of drug charges in California away from the traditional criminal court system, and into a program where treatment and rehabilitation are offered instead of incarceration in California’s county jails and state prisons.

“Diversion” or “DEJ” is a program for first-time drug offenders.

At the Law Offices of Pereira & Moffatt, our drug charge criminal defense attorneys are experienced in getting clients accused of drug charges into treatment programs such as those authorized under PC1000.  We believe that alternative adjudication systems like PC1000, Drug Court and Prop 36 can both provide much-needed treatment and rehabilitation for drug addiction.  Furthermore, these alternative systems of adjudication keep clients accused of drug charges out of the traditional criminal justice system, where no such treatment options exist.

The drug charge criminal defense attorneys at the Law Offices of Pereira & Moffatt have had great success getting our clients into PC1000 Diversion and other drug charge programs, which are a great alternative to spending time in jail.

What is PC1000 “Diversion”?

PC1000 “Diversion” is an alternative system of adjudication for drug offenders.  It allows the court to have criminal proceedings suspended while a drug offender completes a drug treatment program approved by the county.

If a judge determines that a drug offender is a qualified candidate for PC1000 Diversion, the criminal proceedings can be suspended for 18 to 36 months while the drug offender participates in an approved drug treatment program.

Generally speaking, this is the process to enrolling in and completed a California court-approved PC1000 treatment program:

  1. Enter a guilty plea,

  2. Waive time for sentencing for 18-36 months,

  3. Provide the court with proof of enrollment in a county-approved treatment program,

  4. Pay all program and court-related fees,

  5. Successfully complete the PC1000 treatment program and petition the court to dismiss the underlying drug charges.

Am I eligible for PC1000 Deferred Entry of Judgment?

California PC1000 Diversion or “DEJ” is designed to help those who are addicted to all types of drugs.  These drugs include marijuana, cocaine, heroin, “ecstasy”, methamphetamines, PCP, and prescription drugs such as codeine and hydrocodone or “Vicodin”.

To be eligible for PC1000 DEJ, a California drug charge defendant must meet the following requirements: 

  1. Eligible drug offenders must have no prior convictions for any drug-related offense.

  2. The underlying drug charge must be for a crime of possession of drugs, not sales.

  3. The underlying drug charge must not include any allegations of violence or threats of violence.

  4. Eligible drug offenders must have no prior felony convictions within 5 years of the qualifying drug charge.

  5. Eligible drug offenders must not have been enrolled in a drug diversion or DEJ program within 5 years of the qualifying drug charge.

Qualifying personal possession drug charges include:

  1. Health and Safety Code 11377 and HS 11350 – Possession of a Controlled Substance

  2. Health and Safety Code 11357 – Possession of Marijuana

  3. Health and Safety Code 11358 – Cultivation of Marijuana

  4. Health and Safety Code 11364 – Possession of Drug Paraphernalia

  5. Health and Safety Code 11368 – Forgery of Prescription

  6. Health and Safety Code 11550 – Being Under the Influence of a Controlled Substance

  7. Penal Code 381 – Possession of toluene with intent to inhale or ingest

  8. Penal Code 647(f) – “Drunk in Public” or under the influence of drugs

  9. Penal Code 653(f)(d) – Solicitation of drug sales or transportation for benefit of personal use

If you, a friend, or loved one has been charged with a drug crime in Orange County, please call the drug charge criminal defense attorneys at the Law Offices of Pereira & Moffatt to schedule a consultation and see how we can assist you!