Tooby's California Post-Conviction Relief for Immigrants
§ 12.19 2. Former Drug Diversion
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Under the former drug diversion statute, first‑time drug users could have their cases diverted from the formal criminal process without any plea or conviction on condition that they participate in a community education, rehabilitation or treatment program.[43] While this disposition does not result in a conviction for immigration purposes, it does disqualify the defendant from obtaining Lujan effectiveness of a second first-offender disposition.[44]
The client was eligible for diversion only if all of the following conditions apply:
(a) The person is charged only with certain offenses listed in Penal Code § X1000(a):
(1) simple possession of controlled substances or restricted dangerous drugs, [45]
(2) possession of paraphernalia for using controlled substances, [46]
(3) visiting a place where controlled substances are being used, [47]
(4) using or being under the influence of controlled substances, [48]
(5) cultivation of controlled substances for personal use, [49]
(6) narcotics secured for personal use through false prescription,[50] and
(7) public intoxication and glue-sniffing.[51]
(b) The person had no prior conviction of any offense involving controlled substances.
(c) The drug offense charged did not involve a crime of violence or threatened violence. (The client may be diverted on the nonviolent drug offense even if also arrested for a separate offense involving violence.)[52]
(d) There was no evidence of a narcotic or drug violation other than a listed violation.
(e) There was no record of any probation or parole violation without subsequent completion.[53]
(f) The client has not been diverted under the drug diversion law within the previous five years.
(g) The client has not suffered a prior felony conviction within the previous five years.
In practice, however, prosecutors and courts -- as a matter of plea bargaining -- sometimes agreed to diversion for an individual who is not technically eligible. Where the alternatives are disastrous, pre-plea diversion should always be sought as a matter of negotiation, even if the client may not be technically eligible.
Diversion can occur at any time before trial begins. The prosecutor reviews the file and determines whether the client is eligible. The client is not required to and should not make any admissions regarding drug abuse, as this could be separate grounds for immigration penalties.[54] In fact, even a grant of diversion conceivably increases the risk that the alien will be charged by the DHS with being a drug “abuser,” although arguably this should not be sufficient.[55]
The client waives speedy trial rights, and the court refers the case to the probation department for investigation and report to the court on whether the client is eligible for diversion. If the client is found eligible, and accepts diversion, the court will formally suspend criminal proceedings short of conviction, and place the client on diversion for a period from six months to two years, under the supervision of the probation department. After successful completion of the diversion program of community education, rehabilitation or treatment, the case is returned to court and the charges are formally dismissed.
If the client violates the conditions of diversion, for example, by committing a fresh offense, a hearing is conducted, the original charges are reactivated (along with any new ones), and the prosecution continues as though diversion had not occurred.
[43] See People v. Superior Court (On Tai Ho) (1974) 11 Cal.3d 59, 61, 113 Cal.Rptr. 21, 23.
[44] Melendez v. Gonzales, 503 F.3d 1019 (9th Cir. Sept. 19, 2007).
[45] Health and Safety Code § § 11350, 11357, 11377; Bus. & Prof. Code § 4230.
[46] Health and Safety Code § 11364.
[47] Health and Safety Code § 11365.
[48] Health and Safety Code § 11550.
[49] Health and Safety Code § § 11358; see People v. Cina (1974) 41 Cal.App.3d 136, 115 Cal.Rptr. 758; People v. Williamson (1982) 137 Cal.App.3d 419, 187 Cal.Rptr. 107.
[50] Health and Safety Code § 11368.
[51] Penal Code § § 381, 647f.
[52] People v. Macaffee (1980) 109 Cal.App.3d 808, 167 Cal.Rptr. 495. The client can be diverted on one offense, and go to trial on another. Harvey v. Superior Court (1974) 43 Cal.App.3d 66, 117 Cal.Rptr. 383.
[53] In People v. Martinsen (1987) 193 Cal.App.3d 843, 238 Cal.Rptr. 530, the court held that this section requires successful completion of any prior probation.
[54] As a practical matter, the probation investigation must conclude that the defendant is a person in need of drug education to prevent further embroilment in the drug life in order for the defendant to qualify for diversion. While it is desirable to avoid any admissions of drug use, it is essential to obtain the grant of diversion. Therefore it is preferable to make whatever admissions are necessary in order to obtain diversion, even if that entails some risk of admissions of drug abuse that might later be used (if the DHS ever gets a hold of them) to impose immigration penalties. See K. Brady, § 3.4.
