California’s 2024 Proposition 36 Diversion law is called the “Homelessness, Drug Addiction, and Theft Reduction Act,” and it made significant changes to California drug and theft laws.
It gives prosecutors the discretion to charge drug crimes that would have previously been charged as misdemeanors as “treatment mandated felonies.”
This post explains how the updated Prop 36 law works with respect to illegal drug possession and what to expect if you’re charged.
The 2024 Prop 36 created a new felony called a “Treatment-Mandated Felony” for people with two or more prior convictions for certain drug offenses who are caught possessing hard drugs, even if the prior convictions were misdemeanors and the present offense is simple possession.
If the person accepts treatment and successfully completes their individualized treatment program, the case is dismissed, and the arrest is sealed. If they fail or refuse treatment, they face up to three years in county jail and potential prison time for further violations.
Despite the name, this law does not create any services. Nor does it address homelessness or addiction.
Yes. Here is the information you need to know about the history of Prop 36 in California to help you understand the newest Prop 36 from 2024.
[H3] 2000 – Proposition 36, the Substance Abuse & Crime Prevention Act, passes.
This law mandated that people convicted of non-violent felony drug possession had to be given an opportunity to receive treatment before they were sentenced to prison.
[H3] 2014 – Proposition 47, The Safe Neighborhoods & Schools Act, passes.
This Act:
• Re-categorized some non-violent simple drug possession crimes as misdemeanors rather than felonies.
• Reduced California’s prison population.
• Saved California $816 million.
• Gave the courts the ability to redirect defendants to school programs, victim’s services programs, mental health programs, and drug programs.
[H3] 2024 –Proposition 36, The Homelessness, Drug Addiction, and Theft Reduction Act, passes.
This Act creates a new drug-related felony called a “Treatment-Mandated Felony.”
A Treatment-Mandated Felony is a new definition found in Penal Code Section 11395.
According to this new definition, it’s a felony to possess a “hard drug” in California if the possessor has already had two or more convictions for a specified drug-related crime, even if those two convictions were misdemeanor convictions.
A person charged with a Treatment-Mandated Felony is offered treatment. But if they fail treatment, or refuse it, they face three years in county jail. Any additional convictions under this section will result in prison time.
In pretrial diversion:
1. The defendant does not admit to any charges.
2. The defendant does not give up their right to a trial.
3. The defendant seeks drug treatment with a qualified program.
4. If the defendant successfully completes the program, their case gets dismissed.
5. The arrest then gets sealed, meaning the law treats the arrest as if it “never happened.”
Yes. The old Prop 36, the Substance Abuse & Crime Prevention Act from 2000, is still a law codified under California Penal Code Section 1210.1. As long as your crime and you meet the eligibility requirements, you can still technically be sentenced under this penal code.
However, other diversion options are more commonly used before the old Prop 36. The old Prop 36 only applies to non-violent drug possession crimes and non-violent offenders. Most of the crimes it once applied to were reduced to misdemeanors in 2014, and Prop 36 only applies to felonies.
Unlikely.
While the new law, The Homelessness, Drug Addiction, and Theft Reduction Act, did not allocate any new funding, Medi-Cal is usually used to pay for residential treatment, outpatient treatment, and counseling, based on the individualized assessment. The reason for the treatment doesn’t matter.
A “hard drug” would be any drug listed in Health and Safety Code sections 11054 or 11055, and includes:
• Fentanyl
• Heroin
• Cocaine
• Crack cocaine
• Meth
• PCP
This list excludes:
• Cannabis
• Peyote
• LSD
• Mescaline
• Psylocibin
It also excludes drugs listed under 11054 (hallucinogens and depressants, including GHB). It also excludes substances listed in Section 11055(D), except for methamphetamine.
• HSC 11350 – Unlawful Possession of Controlled Substances. This section includes what we think of as the “opiates” or “narcotic” drugs, including, but not limited to, opiates like fentanyl and heroin.
• HSC 11351.5 – Possession of “crack cocaine” with intent to distribute.
• HSC 11353 – The Juvenile Drug Trafficking and Schoolyard Act, targeting individuals who sell drugs to minors.
• HSC 11343.7 – Possession of more than 28.5 grams of cannabis.
• HSC 11377 – Possession of Methamphetamine.
• HSC 11378.5 – Possession of PCP.
• HSC 11379.5 – Transporting or selling PCP.
• HSC 11380 – Trafficking heroin, cocaine, cocaine base, methamphetamines, or PCP.
• HSC 11351 – Possessing a controlled substance with intent to sell it.
• HSC 11352 – Transportation or sale of controlled substances.
• HSC 11353.5 – Preparing drugs for sale on school grounds.
• HSC 11370.1 – Possessing a controlled substance while armed.
• HSC 11378 – Possessing methamphetamine with intent to sell.
• HSC 11379 – Transporting or selling methamphetamine
• HSC 11379.6 – Manufacturing or creating controlled substances.
• HSC 11395 – Possession of hard drugs, as discussed above.
Priors do not “wash out” or stop counting for Prop 36.
That means if you were convicted of two counts of simple possession of heroin in 1985, you could still face a felony charge under 11395 today, even if you were never arrested again in the intervening 40-year period.
1. Plead guilty or no contest to the violation.
2. Admit all prior convictions.
3. Waive time for sentencing.
4. Agree to participate in a court-approved drug treatment program.
5. Participate in an eligibility evaluation for public benefits, including Medi-Cal.
6. Participate in a substance abuse and mental health evaluation.
7. Check in with the court on a regular basis so the court can track progress.
A treatment program can include:
• Drug treatment
• Mental health treatment
• Job training
Judges have the creative power to tailor the program to the needs of the individual. A drug addiction expert also works with the court to come up with a treatment plan.
1. The arrest is treated as if it never occurred.
2. Your plea of guilty or no contest does not count as a conviction for any purpose.
3. You are free to go. You will not be on probation or parole.
If the court, probation department, or prosecutor believes any of the following, they may ask the judge to enter a judgment against you and begin the sentencing process:
• You’re not performing satisfactorily.
• You’re not benefiting from treatment.
• You refused treatment.
• You’ve been accused of a new crime.
They will enter a motion, and a hearing is held.
The judge may:
1. Sentence you to probation, jail time, or prison time.
2. Re-refer you to treatment.
Whether the judge sentences you or re-refers you to treatment depends on what’s happening. If you’re convicted of a new crime, you’ll be sentenced. If the judge believes justice is better served by a re-referral and you agree to a re-referral, that may still be an option for you.
It depends. The judge will determine the severity of the offense and the appropriate response.
You could face formal sentencing for the felony, including a jail sentence. This would mean that judgment would enter, and you would be formally convicted of the crime. You would have a felony on your record, and face a jail sentence, a period of formal probation, or a combination of both.
Or, the court may give you another chance at treatment.
1. The judge may enter a judgment against you.
2. You may be sentenced.
3. You may serve prison or jail time.
4. The judge may choose to give you another chance at treatment.
1. Regular check-ins with the court.
2. A report from either probation officers or the treatment program.
Keep in mind that each county will have a different system and may operate differently. Counties may establish their own check-in processes and intervals.
Because the changes to Prop 36 are relatively new, it’s not easy to say what will happen in all cases. We’ll keep you posted.
There are no limitation lists within the statute. Each county will likely develop its own guidelines regarding the duration of the program. Each courtroom may also be allowed to develop its own programs in its own way.
We will update this blog post as we get more information.
It can.
You will be pleading guilty to a felony with a judgment that hasn’t been imposed yet. If you fail, you will be officially convicted of a felony and unable to own a firearm in the future.
If you’re successful, it’s not yet clear whether you’ll be able to own a firearm legally. In California, addicts aren’t allowed to own firearms. If you’ve suffered two prior drug convictions and are facing prosecution under 11395, the prosecution may be able to make a strong argument that you are an addict. At that point, you’ll lose your ability to own a firearm in the state of California.
You should consult with a lawyer about your particular case.
Possibly.
Treatment providers are stretched thin throughout the state. This bill did not create any new funding for any treatment.
Therefore, there’s no incentive for treatment providers to engage with people. All they can count on is Medi-Cal or insurance reimbursement. Writing reports for the court comes with no additional compensation, for example.
As a result, if you’ve found a treatment program that will take you, then you might not have the luxury of leaving it. Attempting to do so may even be construed as refusing treatment or failing to benefit from treatment.
Remember, no matter how much you don’t like your treatment program, it isn’t prison or jail. Make every effort to work with the provider you have.
Call your lawyer immediately.
You’re in a bad situation already, and they will need to work with you to get the best possible outcome.
Prop 36 itself doesn’t mandate any family support. However:
1. Some treatment programs do emphasize family support, offering family counseling, parental support, and resources.
2. Other support programs, like Nar-Anon and SMART Recovery, exist. They are designed especially for family members of addicts. Click here for a full list of resources.
Possibly.
You will be on felony supervision. You will be required to check in with the court, treatment providers, and a probation officer on a regular basis.
So, while you may not be technically barred from traveling out of state, it may not be feasible for you to do so.
It is always better to err on the side of communication. If you know that you need to travel out of state, immediately connect with your lawyer so that they can make every effort to clear the travel with the judge, probation officer, and/or treatment provider.
Yes.
Regular drug testing will be part of any program.
Since there is no state funding for this treatment arm, it is unclear who is responsible for paying for this testing. But random drug testing requirements are expected, and you should plan for them.
Yes, two that we’ve written about are mental health diversion and military diversion/veterans court.
If you’ve been accused of possession of drugs or other drug crimes, fill out our contact form or call the Cohen Defense Group at (530) 823-7700 to reach our offices in Auburn, Roseville, Truckee, or Nevada City, CA.
You need a criminal defense attorney with expertise in drug crimes.
We can help you defend the charges and can help you understand your rights and responsibilities under any diversion program.