While every defendant has a constitutional right to a jury of his or her peers, criminal charges rarely go to trial. In fact, around 97% of criminal cases are resolved by a plea bargain. A plea bargain is when the defendant pleads guilty or nolo contendere (no contest) to criminal charges. Often the process involves the prosecutor agreeing to dismiss some of the charges in exchange for a plea to the remaining charges. Sometimes, the plea will include an offer of a low-end sentence or probation in exchange for the plea. These are called conditional pleas. An open or unconditional plea is one where the defendant pleads guilty with no promises made to him or her for the plea.

The judge has very little to do with the conditional plea process and, in fact, in California, the judge is not allowed to engage in any plea bargaining. However, at the time the plea is entered by the defendant in court, the judge can reject the plea agreement but the judge cannot change the terms of the agreement. Open pleas can be made to the court and the judge can, in that instance, indicate the sentence he or she will levy against the defendant. If that sentence is not imposed, the defendant can withdraw the plea.

Following the acceptance by the judge of the defendant’s plea of guilty or no contest, whether after a plea bargain with the prosecutor or an open plea, the court will enter judgment, that is, the judge will enter the conviction pursuant to the plea.

Most plea bargains are conditional pleas. These pleas are considered a contract between the defendant and the prosecution and governed by general contract principles. Because it is a form of contract, neither party can easily back out unless the plea agreement violated certain principles under contract law. Examples of this may include that the agreement was ambiguous, was not fulfilled as promised, was fraudulently made or was entered into (by the defendant) under coercion. The penal code at section 1018 permits a defendant to withdraw a plea within a certain time frame and for good cause, good cause generally relating to contract law.

Many criminal justice reform advocates believe that the high rate of plea bargains suggests a fundamental unfairness in the system. It is common that prosecutors will charge a defendant with every possible crime for the offense and as severely as possible in order to get the defendant to “plea down.” For example, let’s say 18-year-old Jenny enters her friend’s home and takes some costume jewelry. Jenny may be charged with petty theft but the prosecution may also decide to charge her with grand theft instead, on the allegation that the jewelry is worth more than $950. Additionally, Jenny will almost certainly be charged with first degree burglary. First degree burglary (in this example, it would be for entering a residence that someone lives in for the purpose of committing a theft) is a serious felony that carries a prison sentence and is a “strike offense.” Should Jenny go to prison or have a strike on her record for coveting and taking her friend’s jewelry. Surely not. But the prosecution will hang this over Jenny’s head to get her to plea to the theft.

Advocates of the plea bargain process maintain that is conserves resources and taxpayer money. If every defendant went to trial, counties would quickly run out of money. Court trials are expensive. The taxpayers foot the bill for court operations, the judges’ salaries, the prosecutors’ salaries, and the public defenders’ salaries.

Plea bargains often result in a favorable outcome for the defendant. The alternative is to take it to the jury and depending on the crime and the sympathies of the jury, this can be a risky choice. Orange County jurors are known for their inclination towards law and order. A good defense attorney who can spot weaknesses in the prosecution’s case and who is a skilled negotiator often makes a significant difference in plea bargaining with the prosecutor. For example, the charges may indicate a prison sentence but a defense attorney who can drive a “hard bargain” can often get probation for his or her client instead.

Orange County criminal defense attorney William Weinberg has been driving hard bargains with the Orange County District Attorney’s officer for 25 years. He will endeavor to get the best outcome in your case. You can contact him for a complimentary consultation at his Irvine office by call (949) 474-8008 or by emailing him at bill@williamweinberg.com.