Deferred Entry of Judgment (DEJ) and Diversion are legal mechanisms that allow you to avoid jail time, avoid a conviction and avoid a criminal record by agreeing to participate in a Court ordered “DEJ” or “Diversion Program.”
The goal of both DEJ and diversion is to keep first-time offenders out of jail by allowing them to participate in a rehabilitative program. The idea is that the offender is given a second chance to prove to the Judge, the DA and the community that they can be, or truly are, a law-abiding citizen.
Since we all understand that a conviction for any misdemeanor offense could have lifelong consequences, DEJ or a pretrial diversion program can help fix and erase your mistake to prove that you are neither a threat to the community or to the public.
To be considered for DEJ or Diversion we must establish that you are the right candidate for such consideration. We will create a plan for showing and convincing the Judge that you can be a law abiding, productive, citizen and that you will in fact benefit from a grant of DEJ or diversion.
The idea is to convince the Judge and the DA that there is a valid reason to believe that you are the right candidate for DEJ or diversion. Some of the factors the court will likely consider before allowing you to participate in a diversion program instead of going through the typical, presumed, prosecution path include:
- Your criminal background
- All facts and circumstances related to your unique case
- Your likelihood of completing the diversion program
- Your likelihood of re-offending
The bottom line… even if you think you are the right candidate for DEJ or a diversion program, you are NOT automatically entitled to it.
Deferred Entry of Judgment – DEJ
A deferred entry of judgment-DEJ is where you typically are asked to enter an initial guilty or no contest plea. With your plea the Judge holds off on finishing the case. You are not sentenced on your plea, rather your case is paused for you to comply with the terms and conditions of your DEJ. If you successfully complete DEJ by performing the terms and conditions imposed by the Judge, and you have not committed any new offense, then the Judge will dismiss your case avoiding a conviction on your criminal record.
However, if you were to violate a term or condition of your DEJ, the Judge may choose to simply “reinstate” you on DEJ, with perhaps a further consequence, of let’s say 10 hours of community service. If the Judge decides not to reinstate you on DEJ, the Court may then move to sentence you on the charge.
Diversion
Under the Penal Code (PC) There are several types of Diversion Programs in California. Some allow Diversion for Felony and misdemeanor offenses and some do not. Most Diversion programs do not allow a Diversion opportunity for a DUI offense. However, Military Diversion does provide an active service member or a Veteran a diversion possibility if charged with a DUI offense.
If placed on diversion, you do not have to enter a guilty or a no-contest plea to participate. If you successfully complete DEJ or Diversion, your case is formally dismissed, your arrest record is sealed and you avoid being convicted of the criminal offense. However, should you fail the program by not complying with one or more of the Judge’s orders or, you are charged with a new offense, the original case stays on the typical prosecution path which may result in a conviction with jail time or, in a felony case, possibly prison time.
Below are several Pretrial Diversion Programs:
Drug Diversion (PC 1000)
California Penal Code 1000 allows certain non-violent drug-related misdemeanors such as “simple possession” to be diverted from the criminal justice system. This means the charges can be dismissed and sealed if you complete the required drug treatment and abide by your diversion terms.
To be eligible for drug diversion under California law, four conditions must be met:
- You have not been convicted of a crime that is ineligible for diversion under Penal Code 1000 in the last 5 years (“first time offender”),
- Your current charge does not involve a crime of violence or a threat of violence,
- There is no evidence of a more serious crime that is ineligible for diversion under Penal Code 1000, and
- You have not had a felony conviction in the last 5 years.
Simply put, diversion is a win-win for our clients. If you, like most people, complete the program, you come out with no criminal record. If something happens where you do not complete diversion, we can still fight the charges and can often achieve a case or sentencing reduction or even a dismissal.
Mental Health Diversion (PC 1001.36)
If you or someone you care about is struggling with mental health issues and is arrested and charged with a crime, he/she could qualify for Mental Health Diversion. Mental Health Diversion allows you to receive inpatient or outpatient treatment in the hopes that such treatment will facilitate your recovery and provide you with the assistance needed to once again be a trusted, law-abiding, contributing member of the public. Mental Health Diversion is available in both misdemeanor and felony cases.
PC 1001.36 offers a prosecution “out” for those individuals who may qualify for a mental health treatment program. If found eligible and suitable for Mental Health Diversion, instead of going through the criminal justice system, you would instead be ordered to comply with a “Mental Health Treatment Plan.”
In most situations, this program provides you with a chance to address your mental health concerns instead of being prosecuted. The period of diversion is not more than two (2) years with the court’s oversight. A court-ordered “treatment plan” could include:
- Counseling sessions with a qualified mental health expert
- Drug treatment as recommended by a qualified psychiatrist
- Therapy sessions with a qualified expert or professional
Typically, the Judge, your mental health provider(s), a court-approved probation officer, and your defense attorney collaborate with the best hopes for your healing and success during your mental health treatment. Once you complete the court-approved mental health treatment program, your charge(s) are dismissed and sealed.
Having your case sealed is very important because it gives you a fresh start without a criminal record. That means anyone who wants to know your criminal history (employer, landlord, loan provider, etc.) will not know whether or not you have a past conviction or arrest record.
Mental Health Diversion afforded under PC 1001.36, has some limitations for certain offenses. Below are the eligibility requirements needed to be considered for Mental Health Diversion:
- You have an eligible mental illness or disorder recognized by the DSM (Diagnostic and Statistical Manual of Mental Disorders)
- A qualified mental health expert or professional can attest that your mental health disorder played a significant role in the alleged charge, and you could benefit from a treatment
- You are ready to waive your legal right to a speedy trial
- The court has determined that you are not a threat to public safety
- The diagnosis is not an antisocial personality disorder, pedophilia, borderline personality disorder
- You are ready to participate in a mental health treatment program
Typically, if your diagnosis reveals that you have any of the following disorders or conditions, you could qualify for a mental health diversion program under PC 1001.36:
- Post-traumatic stress disorder
- Schizoaffective or schizophrenia disorder
- Bipolar disorder
Military Diversion (PC 1001.80)
Military Diversion is another California Diversion program open only to current and past service members. Military Diversion is available for both felony and misdemeanor offenses and also is available to those military personnel charged with a drunk driving (DUI) offense.
To qualify for diversion, one of the below concerns must have resulted from or be connected to your current or past military service. Qualifying concerns include:
- Sexual trauma,
- Mental health related issue,
- Traumatic brain injury (TBI),
- Post-traumatic stress disorder (PTSD), or a
- Substance (alcohol or drug)use disorder
If you are accepted into a Military Diversion Program, the Judge imposes the diversion terms, which generally involve substance use treatment, counseling, therapy, and may also include victim restitution.
Again, a grant of Military Diversion provides a service member the opportunity to both rehabilitate and escape/avoid the outcome of a criminal record.
Developmental Disability Diversion (PC 1001.20)
To qualify for California’s Developmental Disability Diversion Program, you must:
- have a developmental disability as defined in Welfare and Institutions Code § 4512,
- have not been in a diversion program in the past two years, and
- get approval by the court.
The program begins with an assessment by a regional center. Then an individualized treatment plan is developed.
Diversion can last up to two years for misdemeanors or three years for felonies. Upon successful completion of the program, the criminal charges are dismissed and the individual’s record is sealed.
Misdemeanor Diversion (PC 1001.95)
This is a broad- based Misdemeanor Diversion program allowing a Judge the discretion to order Diversion over the prosecutor’s/DA’s objection. The reality… Misdemeanor Diversion has opened the door to opportunities that were not available before this law was enacted.
Penal Code 1001.95 states:
“(a) A judge in the superior court in which a misdemeanor is being prosecuted may, at the judge’s discretion, and over the objection of a prosecuting attorney, offer diversion to a defendant pursuant to these provisions.
(b) A judge may continue a diverted case for a period not to exceed 24 months and order the defendant to comply with terms, conditions, or programs that the judge deems appropriate based on the defendant’s specific situation.
(c) If the defendant has complied with the imposed terms and conditions, at the end of the period of diversion, the judge shall dismiss the action against the defendant.
(d) If it appears to the court that the defendant is not complying with the terms and conditions of diversion after receiving notice from the defendant, the court shall hold a hearing to determine whether the criminal proceedings should be reinstituted. If the court finds that the defendant has not complied with the terms and conditions of diversion, the court may end the diversion and order resumption of the criminal proceedings.
(e) A defendant may not be offered diversion pursuant to this section for any of the following current charged offenses:
(1) Any offense for which a person, if convicted, would be required to register pursuant to Section 290.
(2) Any offense involving domestic violence, as defined in Section 6211 of the Family Code or subdivision (b) of Section 13700 of this code.
(3) A violation of Section 646.9.”
The result is that Judges have the authority to approve diversion for a wide range of misdemeanor offenses. Misdemeanor Diversion allows a judge to “pause” a criminal prosecution while the defendant completes the requirements that the Judge may order. With Misdemeanor Diversion, we no longer need the prosecutor’s blessing to qualify. Instead, we ask the Judge directly, and the Judge, not the prosecutor, makes the final decision as to whether or not allow you an opportunity to be placed on Misdemeanor Diversion. Under a PC 1001.95 Diversion agreement, the Judge may:
- Offer you diversion for up to 24 months.
- Set specific programs or conditions specifically tailored to your situation.
- Dismiss the charges completely if you successfully meet all terms during the diversion period.
This process gives you a second chance to prove yourself to be a solid, law abiding, citizen -even where the prosecution disagrees.
Misdemeanor Diversion is not open to all misdemeanor offenses. There are a few misdemeanor crimes that are excluded from Diversion consideration:
- Sex Offenses That Require Registration
- Domestic Violence Charges
- Stalking Charges
Unlike other potential diversion programs, this law gives Judge’s more control. The Judge may look at factors beyond the prosecution’s preferences, such as your circumstances, history, and whether an opportunity to be placed on diversion can truly help you be a productive, law abiding, member of the public.
In short, here are the benefits to successfully completing Misdemeanor Diversion:
- A Clean Slate: Completing a PC 1001.95 diversion program means your case is dismissed, leaving you without a criminal record. Without a conviction, you’ll face fewer obstacles when applying for jobs, housing, or education.
- A Path to Rehabilitation: Diversion takes a rehabilitative approach rather than a punitive one. It can give you access to the help you need, whether that’s treatment for substance abuse, mental health support, or skills training.
- Fairer Access to Programs: Since Judges weigh your unique circumstances, you’re not automatically excluded because of rigid prosecutorial standards. The Judge decides what’s fair and appropriate; not the prosecutor.
How an Experienced Defense Attorney Can Help
Even if you qualify for DEJ or Diversion, the process of being approved isn’t automatic. A skilled defense attorney knows how to position your case in the best possible light and can guide you through every step. An experienced lawyer will gather the right evidence, prepare your presentation, and help you get in front of the Judge for Diversion or DEJ consideration.
At Cohen Criminal Law, Attorney Gregg Cohen understands what Judges and District Attorneys look for when evaluating candidates for these programs. He works closely with clients to show genuine accountability and readiness to change, which are key factors that can make the difference between conviction and dismissal.
If you’re hoping for a chance at a Pre-Trial Diversion Program or Deferred Entry of Judgment, don’t wait. The earlier you involve an attorney, the better your odds of securing an outcome that protects your record and your future.
Contact Cohen Criminal Law
If you or someone you know has been charged with a misdemeanor or other offense and wants to explore eligibility for DEJ or Diversion, we can help. Call (530) 527-1972 or contact us online today to speak directly with Gregg Cohen and find out what options are available to you.