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Fundamentals of plea bargaining
By David Danielsen

Plea bargaining can result in a plea to a particular charge or to a sentence with certain limitations in exchange for a defendant's waiver to a trial on the pending charges. Because the vast majority of cases are resolved through pleas, it is often said that plea bargaining is the lifeblood of the criminal justice system.

The objective of this article and self-study test is to discuss the most important features of plea bargains. Readers will learn about statutory limitations to bargaining; the difference between plea bargains, sentence bargains, charge bargains, and indicated sentences; as well as the actual mechanics of common agreements like package deals and Cruz waivers.

Courts have acknowledged that plea bargaining is "an integral part of the administration of justice in the United States," Barber v. Gladden, 220 F.Supp. 308 (D.Ore. 1963), "essential to the expeditious and fair administration of justice" People v. Williams, 269 Cal.App.2d 879 (1969).

But the reported decisions and statutory enactments on the subject highlight a tension in the law of plea bargaining. The law recognizes the need for the efficiency of plea bargaining, but it also recognizes both concerns for protection of defendants from undue pressure and coercion, and concerns for protection of the public from the leniency afforded to potentially dangerous criminals by some judges and prosecutors.

The concern for defendants is reflected in court decisions addressing the special problems when the judge participates in plea negotiations. The cases look at the judicial activity and ask whether it results in undue coercion of defendants or promotes understanding and voluntary pleas. People v. Weaver, 118 Cal.App.4th 131 (2004).

California voters imposed limits on bargaining by defining it, listing offenses where bargaining should not occur, and defining circumstances where it could happen.

Voters enacted Penal Code Section 1192.7(b) through an initiative defining "plea bargaining" as "any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant."

They also enacted Penal Code Section 1192.7(a), precluding plea bargaining on several crimes. This included serious felonies specified in Penal Code Section 1192.7(c), such as robberies, residential burglaries, and sex crimes, as well as any offenses involving driving under the influence of alcohol and/or drugs.

Several exceptions to the plea bargaining ban exist. By its own terms, the statutory bar for serious felonies does not apply before the commitment order at preliminary hearing. Further, bargaining is explicitly allowed when there is insufficient evidence, or when a material witness's testimony is unavailable. See Penal Code Section 1192.7(a)(2).

A large exception is when a reduction or dismissal of a charge in a bargain "would not result in a substantial change in the sentence." Penal Code Section 1192.7(a)(2). The test used for this exception asks whether the sentence would have been the same if there had been no plea bargain; i.e., if the defendant had pleaded guilty and thrown himself at the mercy of the judge, would the sentence have been the same as in the bargain? See People v. Arauz, 5 Cal.App.4th 663 (1992).

Plea bargains resulting in sentencing restrictions are called "sentence bargains." The difference between plea (charge) and sentence bargaining is that with the former, some charges are actually dismissed or reduced, whereas with sentence bargaining only the sentence is affected.

Sentence bargaining is codified in Penal Code Section 1192.5. This section specifically authorizes sentence bargains in felonies, except for felonies involving designated sex offenses.

Penal Code Section 1192.5(a) provides that when a defendant pleads guilty or no contest, "the plea may specify the punishment to the same extent as it may be specified by the jury on a plea of not guilty or fixed by the court on a plea of guilty, nolo contendere, or not guilty, and may specify the exercise by the court thereafter of other powers legally available to it."

Pleas taken under this section require the consent of the prosecuting attorney and approval by the judge. Penal Code Section 1192.5. The judge retains discretion to withdraw approval of such pleas and must inform the defendant of the plea's conditional nature.

Under Section 1192.5, the court's initial approval is not binding: "If the court approves of the plea, it shall inform the defendant prior to the making of the plea that its approval is not binding; it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter; and in that case, the defendant shall be permitted to withdraw his or her plea if he or she desires to do so."

"Lids" are a type of sentencing bargain: "Negotiated plea agreements may include a sentence 'lid,' which constrains the maximum sentence a trial court may impose but is less than the maximum exposure the defendant would otherwise face absent the agreed upon lid." People v. Cuevas, 44 Cal.4th 374 (2008).

Plea bargains resulting in a plea to a particular charge are called "charge bargains." Charge bargaining is codified in Penal Code Sections 1192.1 and 1192.2.

Like Penal Code Section 1192.5, dealing with sentence bargains, pleas taken under this section require the consent of the prosecuting attorney and approval by the court. Penal Code Sections 1192.1, 1192.2. In contrast to Section 1192.5, neither section includes language indicating that the court retains authority to withdraw approval once given at the time of the plea.

Both the charging of offenses and the negotiation of pleas to lesser offenses are matters solely within the province of the executive branch as illustrated by People v. Mikhail, 13 Cal.App.4th 846 (1993).

In Mikhail, defendant was charged with murder, attempted murder, and assault with a deadly weapon. The defendant entered a plea of guilty to the lesser-included offense of voluntary manslaughter in exchange for dismissal of the remaining charges.

The plea included no restrictions on the court's sentencing power. The court took the plea, granted the motion to dismiss the other charges, and set the matter for sentencing before another judge. The sentencing judge stated he believed that the charge of voluntary manslaughter was too light and that a jury should decide the matter. Over the prosecutor's objection, he declined to sentence and reinstated the original charges. In a subsequent jury trial, defendant was convicted of second-degree murder, attempted second-degree murder, and assault with a deadly weapon.

Mikhail held that since the plea under Penal Code Section 1192.1 does not affect a judge's sentencing function, a judge is forbidden by the doctrine of separation of powers from vacating the plea and reinstating the original charges. Mikhail reversed the defendant's conviction, ruling that "The court's action in nullifying the plea violated the separation of powers and deprived Mikhail due process rights."

Are indicated sentences plea bargaining? It is a fine line between prohibited plea bargaining and the practice of giving an indicated sentence. See People v. Woosley, 184 Cal.App.4th 1136 (2010).

When a judge indicates a sentence based upon a given set of facts, irrespective of whether guilt is determined by plea or trial, this is not plea bargaining. The defendant who avails himself of the indicated sentence must plead guilty or no contest to all the charges and allegations in the complaint, information, or indictment, and the judge can then pass sentence consistent with the judge's previous indication.

People v. Superior Court (Ramos), 235 Cal.App.3d 1261 (1991), provides a comprehensive discussion of these principles.

Absent a strict prohibition on the practice of imposing an indicated sentence, there is a strong public policy in California favoring settlement as the primary means of resolving criminal disputes. If a judge gives an indicated sentence, the judge should withdraw from the indicated sentence if new facts are brought out at the sentencing hearing, showing that the sentence is inappropriate.

If the prosecutor feels that the indicated sentence is inappropriate, his or her duty is to try to persuade the judge to withdraw from the indication at the sentencing hearing. However, the prosecutor has no right to interfere with the process of the judge giving an indicated sentence to a defendant willing to plead guilty to all charges and allegations of an information or indictment. Indicated sentences fall within a judge's inherent sentencing powers and, in contrast to a plea bargain, do not require prosecutorial consent.

Giving an indicated sentence is thus not a prohibitive plea bargain: Although the two may be related, giving an indicated sentence is a distinct way of compromising a case short of trial. When the judge gives an indicated sentence, he or she simply informs the defendant what the sentence is that will be imposed if a given set of facts is confirmed, whether by trial or plea. The defendant may reject the indicated sentence, and the judge may withdraw from the indication if the factual predicate is disproved.

A "package deal" is when the prosecutor offers to allow two or more defendants to plead guilty or no contest for an agreed-upon disposition, but the prosecutor's offer is valid only if all the defendants agree to plead. Coercion is a particular danger in the package deal plea bargain context. In re Ibarra, 34 Ca1.3d 277 (1983).

Judges are required to exercise "special care" in determining the voluntariness of a plea undertaken pursuant to a package deal plea bargain. There must be an inquiry into the totality of the circumstances whenever a plea is taken pursuant to a package deal bargain. A trial court should carefully scrutinize pleas in which the defendant shares a special relationship with a person who has been promised a benefit contingent on the defendant pleading guilty and those cases in which a third party has threatened the defendant.

The state Supreme Court in the In re Ibarra case noted that package deals may approach the line of unreasonableness because "[e]xtraneous factors not related to the case or the prosecutor's business may be brought into play. For example, a defendant may fear that his wife will be prosecuted and convicted if he does not plead guilty; or, a defendant may fear...that his codefendant will attack him if he does not plead guilty. Because such considerations do not bear any direct relation to whether the defendant himself is guilty, special scrutiny must be employed to ensure a voluntary plea."

As a part of the plea agreement, a defendant can agree that should he or she fail to appear at sentencing, a greater term can be imposed by the sentencing court and the defendant will not be allowed to withdraw his or her plea. This is known as a Cruz waiver, based on People v. Cruz, 44 Cal.3d 1247 (1988).

The right way to do a Cruz waiver is illustrated by People v. Vargas, 223 Cal.App.3d 1107 (1990), in which the defendant and the prosecutor bargained for and agreed to the Cruz waiver and its attendant potential for a maximum term prison sentence. In short, defendant agreed that the trial court could impose the upper term sentence if defendant violated the provisions of the Cruz waiver. The appellate court rejected the defendant's argument that by imposing the bargained for upper-term sentence, the trial court violated the provisions of the agreement and deprived defendant of his right to due process.

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