The Basics of Plea Bargains in California


The criminal justice system in California can be confusing and intimidating, particularly to anyone who’s being prosecuted for a crime for the first time. In this state, a police officer can make an arrest if he or she reasonably believes that a crime has occurred or is currently taking place. To make a formal arrest, a police officer must have a warrant, probable cause, or observe the crime in progress. During the arrest process, the police must also tell a suspect about his or her “Miranda” rights, the right to a lawyer and the right to keep silent.

A suspect’s first appearance in court is called the arraignment, where charges are formally read to the defendant, a bail amount is set, and the defendant may enter a plea. A “plea bargain” is an arrangement between the defendant and the prosecutor. In a typical appeal bargain, the defendant complies to a guilty plea (or “no contest”) to at least one charge in an effort of having one or the other charges dropped, for the reduction of a charge to an offense that is less severe, or for recommending to the court a distinct sentence adequate to the defense.


As California’s courts grow even more crowded, judges and prosecutors must move cases through the system as rapidly as they can. A formal trial can take days, weeks, or even months, but appeal bargains can take only a few minutes. Plea bargains also give both the prosecution and the defense an aspect of authority over the result of a case, while the result of a jury trial is always unpredictable.


Despite some restrictions and some noteworthy criticism, the practice of appeal bargaining is not only common – it’s predominant in criminal cases in all fifty states. More than ninety percent of all criminal convictions are the result of plea negotiations, so fewer than ten percent of criminal cases actually go to trial. Federal prosecutors and the prosecutors in most states have codified rules that precisely spell out how plea bargains are to be arranged and granted by the courts. Attorneys use the following terms to describe different kinds of plea bargains:

  • Charge Bargaining: A suspect pleads guilty to a charge that’s less serious than the original or the most serious of the charges. For example: The state charges a defendant with DUI, but the suspect is allowed to plead guilty to “wet reckless,” so the state drops the DUI charge.
  • Count Bargaining: A suspect pleads guilty to one or several original charges, and the state drops the other charges. For example, if a suspect is charged with both robbery and assault, and the lawyers agree that if the defendant pleads guilty to the assault, the state will drop the robbery charge.
  • Sentence Bargaining: The suspect pleads guilty or no contest to a charge in return for a reduced sentence. For example, a suspect may agree to plead guilty to a misdemeanor if the prosecutor promises to recommend that the judge not order jail time.
  • Fact Bargaining: The suspect pleads guilty in exchange for the state’s omission of particular details in the case. For example, say the state prosecutes a suspected drug dealer for drug trafficking, caught with more than five kilograms of cocaine. Five kilograms triggers a longer prison sentence, so the defendant agrees to plead guilty if the prosecution “stipulates” that the defendant possessed fewer than five kilograms of cocaine.


In most courts, pleas can be negotiated at pretty much any part in the criminal justice process. These deals can be negotiated even before a prosecutor files criminal charges; thus, anyone being investigated for a crime in southern California should contact an experienced San Diego criminal defense attorney for guidance even if you have not yet been arrested and formally charged. Plea deals even happen after trials. In the event there is a hung jury, for example, the state and the defense will often negotiate a plea in hopes of avoiding another trial. Plea deals can also be made after a conviction while a case is being appealed.


A “no contest” or nolo contendere plea says, “I do not choose to plead guilty, but I will not refute these charges.” A no contest plea is typically an aspect of the plea – similar to a plea of guilty, this results in a conviction. A no contest appeal also shows up on the offender’s record. However, by not admitting guilt, a defendant protects himself or herself if the victim of the crime decides to sue the accused in civil court, because the victim then has no admission of guilt to submit as evidence. A guilty plea, however, would be an admission of guilt that could be used as negative evidence towards the accused in civil cases.


A guilty appeal or a no contest plea approved by a judge establishes the defendant’s legal guilt and results in a criminal conviction that will appear on the accused’s criminal record. However, based upon the circumstances of the conviction and the defendant’s overall criminal record, in the state of California the defendant has a chance to eventually seal or expunge the conviction at some point in the future.


In response to the critics of plea bargaining, California attempted to ban the practice back in 1982. That’s when California voters approved Proposition 8, which is supposed to ban plea bargaining in cases where the charge is a serious felony, a violent sex crime, a felony committed with a gun, or a driving under the influence charge. The law supposedly allows exceptions for appeal bargaining in only these three situations:


  1. The evidence to prove the state’s case is insufficient.
  2. The testimony of a material witness cannot be obtained.
  3. The charge’s reduction or dismissal will not make a substantial change in the sentence.

But even when these exceptions are not applicable, criminal cases in California are still negotiated and pled. The law applies only to charges in the “information” (the document that formally charges a defendant with a crime) or in the “indictment” (the document issued by a grand jury), so Proposition 8 does not prohibit appeal  bargaining after an arraignment, before a preliminary hearing, or during a grand jury investigation – the times when most appeal bargaining actually takes place. Opponents of the plea bargain “ban” in California continue to press for its repeal.

The choice to accept or reject a plea bargain is ultimately the defendant’s alone. However, in Southern California, a defendant’s own San Diego criminal defense attorney may make a recommendation regarding a appeal bargain, and defendants normally accept the plea deals that their lawyers recommend. Still, an agreement between lawyers is not the end of a criminal case. Every plea bargain agreement in California must be presented to and approved by a judge before it is considered final.

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