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Plea Bargaining Demystified
Criminal defendants and prosecutors often enter into plea bargains in which the defendant agrees to plead either guilty or no contest in exchange for one or more charges being dropped, a reduction of a charge to a less-serious offense, or a recommendation to the judge for a specific sentence that is acceptable to both parties.

Generally speaking, once the plea agreement is accepted, the defendant cannot be sentenced to a higher degree or more time. (Cal. Penal Code §§ 1192.1, 1192.2, 1192.5.) The California Supreme Court formally endorsed the plea bargain process more than 40 years ago (see People v. West, 3 Cal. 3d 595 (1970)).

Plea bargaining has historically been recognized as "an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal case were subjected to a full-scale trial, the states and federal government would need to multiply by many times the number of judges and court facilities." (Santobello v. New York, 404 U.S. 257, 260 (1971).)

Restrictions on Plea Agreements
In 1982 California voters passed Proposition 8, commonly referred to as the "Victims' Bill of Rights." Among other things, the initiative greatly restricted plea bargaining in serious felony cases, certain violent sex crimes, and felonies that involve the use of a gun. (See Cal. Penal Code § 1192.7.) The law allowed for plea bargains in these cases only when (1) there is insufficient evidence to prove the people's case, (2) testimony of a material witness cannot be obtained, or (3) a reduction or dismissal would not result in a substantial change in sentence.

Despite this law, plea bargains are often reached either at or after an arraignment, a preliminary hearing, or grand jury investigation - primarily because these procedures occur before the filing of an information or indictment.

Not only has plea bargaining endured, it has become prevalent. A 2011 study revealed that more than 90 percent of all criminal cases in the United States end in plea bargains rather than a jury trial. (See Abrams, Is Pleading Really a Bargain?, 8 J. EMPIRICAL LEGAL STUDIES 200-221 (2011).) Although plea bargaining may be a vital part of the criminal justice system, the protocol surrounding it is not a code of trial procedure but rather a set of rules that govern a contractual relationship between the parties. That relationship, however, is grounded in due process. The U.S. Supreme Court has clearly recognized that due process applies not only to the procedure of accepting a defendant's plea but also that the requirements of due process attach to implementation of the bargain itself. "It necessarily follows that violation of the plea bargain by an officer of the state raises a constitutional right to some remedy." (People v. Mancheno, 32 Cal. 3d 855, 860 (1982) (relying on Santobello, 404 U.S. at 262).)

Simple Plea
In regard to the sentence actually imposed, counsel must be aware of the distinction between a simple guilty plea and a negotiated plea bargain. A guilty plea may be preceded by the court discussing an "indicated sentence" that might be imposed (even over the prosecution's objection) should a given set of facts and circumstances be confirmed. In that situation, the court cannot threaten a harsher sentence if the defendant refuses to plead guilty. The very nature of an indicated sentence is that it reflects the court's best judgment as "to the appropriate sentence based on defendant's criminal history and his current offenses and regardless of whether defendant was convicted by plea or at trial." (People v. Clancey, 56 Cal. 4th 562, 577 (2013) (emphasis by the court).)

Negotiated Plea
But a negotiated plea bargain is different. When that happens, the court "has no authority to substitute itself as the representative of the People in the negotiation process and under the guise of 'plea bargaining' to 'agree' to a disposition of the case over prosecutorial objection." (Clancey, 56 Cal. 4th at 570 (citing People v. Orin, 13 Cal. 3d 937, 943 (1975).)

Whatever the motivation for each party to enter into a negotiated plea, the agreement is not executed until it is reviewed and approved by the court. And if the plea bargain is approved, the court cannot change the contractual terms without the parties' consent. (People v. Segura, 44 Cal. 4th 921, 931 (2008); People v. Superior Court (Gifford), 53 Cal. App. 4th 1333 (1997).)

For example, in one case, the juvenile court initially accepted a negotiated plea with terms that included the juvenile's placement at a specific facility. But after it reviewed the probation report, the court had concerns about that placement and felt an alternative placement would be more suitable. In exercising its own independent discretion to select the best placement for the juvenile, the court effectively changed the terms of the negotiated agreement, which meant the entire plea had to be invalidated. (See In re Ricardo C., 220 Cal. App. 4th 688 (2013).) The court of appeal reasoned it would have been inequitable for the juvenile court to enforce only certain parts of the plea bargain. The remedy was to reject the plea bargain completely and restore the parties to their former positions. (Ricardo C. at pp. 698-99.)

Waiver of Rights
A plea agreement often may result in the waiver of more than just the right to trial. A number of additional rights may be bargained away as part of the deal, including:

- Pre-sentence or future custody credits. (See People v. Johnson, 82 Cal. App. 3d 183, 188 (1978) (pre-sentence credits); and People v. Ambrose, 7 Cal. App. 4th 1917 (1992) (future credits)).

- An otherwise applicable statute of limitations defense to the charged offense (Cowan v. Superior Court, 14 Cal. 4th 367 (1996)).

- The right to file an appeal (People v. Panizzon, 13 Cal. 4th 68, 80 (1996)).

In regard to the sentence imposed, a defendant may agree to waive claims that the sentence violated the proscription against multiple punishment. (See Cal. Penal Code § 654; Cal. Rules of Court 4.412(b).)

But perhaps the waiver with the greatest effect is a "Harvey waiver," which permits the trial court to otherwise consider facts underlying the dismissed counts when determining the appropriate punishment for the convicted offenses. (See People v. Harvey, 25 Cal. 3d 754 (1979).)

Advisement and Consequences
One area of the process that many attorneys fail to appreciate (or understand) is the "advisement" required as to the effect and consequences of a plea bargain.

A court can accept a plea bargain only after it properly admonishes the defendant to ensure there is a knowing and voluntary plea. The court must advise the defendant about the "direct consequences of the plea." (People v. Walker, 54 Cal. 3d 1013, 1019-20 (1991).) A defendant can withdraw the plea by proving the court did not properly explain the constitutional and other legal rights at stake. If the defendant seeks to withdraw a plea in that situation, there must be a further showing that the defendant would not have pled had there been a proper advisement. (Walker, 54 Cal. 3d at 1020, 1022-23; People v. Howard, 1 Cal. 4th 1132, 1178 (1992); In re Alvernaz, 2 Cal. 4th 924, 933-934 (1992).)

Direct Consequences
Generally speaking, direct consequences are those that automatically occur with the agreement or effect of the punishment. These include:

- The terms of the plea bargain itself - for example, forfeiting the right to a speedy jury trial (Boykin v. Alabama, 395 U.S. 238 (1969); In re Tahl, 1 Cal. 3d 122 (1969)).

- The penalty to be imposed for the crimes (Bunnell v. Superior Court, 13 Cal. 3d 592, 605 (1975)).

- Fines and penalty assessments (People v. Sorenson, 125 Cal. App. 4th 612, 620 (2005)).

- Restitution requirements (Walker, 54 Cal. 3d 1013, 1022).

- The impact on parole and probation (In re Moser, 6 Cal. 4th 342, 351-52 (1993) (parole); and People v. Spears, 153 Cal. App. 3d 79, 86-87 (1984) (probation)).

In many cases involving a sex offense, direct consequences also include:

- Lifetime sex-offender registration (People v. Zaidil, 47 Cal. App. 4th 1470, 1481 (2007)).

- Potential civil commitment due to the conviction (People v. Renfro, 125 Cal. App. 4th 223, 231(2004) [mentally disordered offender]; and People v. Moore, 69 Cal. App. 4th 626, 632-33 (1998) [sexually violent predator])).

Indirect Consequences
Unlike direct consequences, a court is not required to advise a defendant about indirect or collateral consequences of a plea bargain. (See People v. Gurule, 28 Cal. 4th 557, 633-34 (2002)).) These are consequences that do not "inexorably follow" from the conviction. (Moore, 69 Cal. App. 4th at p. 630.) For example, certain disqualifications and suspensions are considered indirect consequences. These might include a driver's license suspension (People v. Dakin, 200 Cal. App. 3d 1026, 1033 (1988)), disqualification from jury service, or disqualification to hold a professional license. (See generally People v. Ansell, 25 Cal. 4th 868, 872-73 (2001).)

Additional indirect consequences may include:

- A ban on firearm possession (Ansell, 25 Cal. 4th at pp. 872-73).

- Limits on conduct credits (People v. Barela, 20 Cal. 4th 261, 272 (1999)).

- The possibility that the defendant may later be impeached as a witness (People v. Reed, 62 Cal. App. 4th 593, 601-02 (1998)).

- Possible effects on a future criminal proceeding against the same defendant - for example, whether the conviction may be viewed as a valid "prior offense" (Gurule, 28 Cal. 4th at 634).

- Possible basis for a violation of probation in another matter (People v. Martinez, 46 Cal. App. 3d 736, 745 (1975)).

- Immigration status complications (considered an indirect consequence even though Penal Code section 1016.5 otherwise requires the court to advise the defendant about immigration consequences) (Spencer v. Kemma, 523 U.S. 1, 8-9, 12 (1998)).

Given the complexities of direct and indirect consequences of plea bargaining and the need to assure that a defendant has been properly advised, the California Judicial Council has developed a checklist form that must be utilized in all felony cases in which a plea bargain is presented to the court. (See Cal. Jud. Council Form CR-101.)

Ineffective Assistance of Counsel?
Because courts are not required to advise defendants of indirect consequences, it becomes counsel's obligation to ensure such consequences are fully understood by their clients. Indeed, professional standards dictate that counsel provide competent advice as to "all aspects" of the case. (In re Vargas, 83 Cal. App. 4th 1125, 1139 (2000).) And the failure to advise a defendant about plea consequences, as well as mistaken advice about those consequences, could become grounds for a claim of ineffective assistance of counsel.

Three recent U.S. Supreme Court cases address a lawyer's responsibilities in this regard. In Padilla v. Kentucky (559 U.S. 356 (2010)), the Court ruled that the Sixth Amendment requires attorneys to advise their clients about potential immigration consequences, such as deportation, that might follow a guilty plea. In another case, the Court held that a defense attorney must communicate plea offers to a client regardless of whether counsel believes the offer is acceptable. (See Missouri v. Frye, 132 S. Ct. 1399 (2012).) Moreover, if counsel does not advise the defendant of the offer and there is prejudice by virtue of the failure to communicate, the defendant may be allowed a second opportunity to accept the prosecution's offer.

It should also be noted that the obligation to communicate a plea offer carries with it the related responsibility to properly advise the client as to whether the offer should be accepted. Thus, in Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Court held that a defense attorney's erroneous advice about whether to accept or reject an offered plea may also mean that the defendant is given a second opportunity to opt for the original plea offer.

The remedy discussed in Lafler offers another point to remember. When a plea is withdrawn, the parties are returned to the position as if it had never occurred. But when a defendant withdraws the plea and is later convicted, the court can always impose a greater sentence than what previously was bargained. (See People v. Serrato, 9 Cal. 3d 753, 765 (1973) (disapproved on other grounds in People v. Fosselman, 33 Cal. 3d 572, 583 & n. 1 (1983).)

Benefits in Perspective
The benefits of a plea bargain are often viewed from the perspective of the individual defendant. Some may choose to plead guilty for a variety of reasons, including to avoid the risks of a trial. But does that mean a person might plead guilty to an offense he or she did not commit? Possibly. As late California Supreme Court Justice Stanley Mosk once observed in a dissent, "a claim of innocence is not necessarily inconsistent with a plea of guilty." (Alvernaz, 2 Cal. 4th at 951 (1992); see also North Carolina v. Alford, 400 U.S. 25 (1970).)

But there is another perspective too. Plea bargains exist because they provide advantages to both defendants and the courts. The main advantage to defendants is the reduction of risk. But courts also benefit from streamlined calendar management. With plea bargains there are fewer contested trials in congested courtrooms, as judges, staff, and prosecutors are able to spend more time on other pressing (and more difficult) matters.

Indeed, as U.S. Supreme Court Justice Anthony Kennedy observed recently, the reality is that plea bargaining has "become central to the administration of the criminal justice system." (Frye, 132 S. Ct. at 1407.) More colloquially, as one law review article put it: "To a large extent this kind of horse trading determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." (Scott & Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1912 (1992).)

Whatever the motivation for a particular plea bargain, counsel should always ensure that the client is fully aware of the offered terms and their consequences.

Brad A. Weinreb is a deputy attorney general in San Diego. The views expressed herein do not constitute legal advice or necessarily reflect the position of his office. Jonathan D. Grossman of Santa Clara contributed to this article.

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