Sunday, September 11, 2011

The Plea Bargain Triade

In most plea bargain negotiations there are three parties involved, the deputy district attorney (DDA), the defendant through his/her attorney, and the judge. In order to reach a plea bargain all of the parties must agree.

A normal sequence of events would be for the DDA to make a settlement offer to the defendant's attorney at either a pre-preliminary hearing or readiness hearing for felony cases or at pre-trial for misdemeanor cases. The defendant can either agree to the offer, make a counter-offer, or refuse the offer. At this point there may be some back and forth discussion between the DDA and the defendant's attorney about the weakness of the case, potential defenses and/or mitigating factors. There will also be a discussion of any priors the defendant might have including strike priors. If what the parties believe is a reasonable offer is reached or if the DDA simply refuses to go any lower the judge may given an indication of what she/he is willing to accept or willing to impose as the sentence inline with the plea bargain.

At this point the defense attorney will generally share the offer with the defendant to determine if she/he is willing to accept the bargain as outlined. The defendant is then free to either accept, refuse, or to ask about a different counter offer. The new counter offer will be made to the DDA by the defense attorney if it has not already been discussed and refused. This back and forth may go on for a couple of rounds. At some point either the defendant will simply decide to go to trial or the DDA will simply refuse to go any lower on their offer. When that point is reached it is up to the defendant to either accept the deal or not. The defendant is always in charge of whether or not to take a plea bargain.

If a plea agreement is reached between all the parties, then a advisal and waiver of rights will be taken by the court--often in both a written and verbal form--and the plea will be taken in open court along with any required admissions. After the entry of the plea the court will set a sentencing date and the defendant will be instructed to contact the probation department which is responsible for completing a sentencing report for the judge.

It is important that the defendant fully understand the terms of the plea bargain and what is going to happen. After a plea is entered in open court it is very difficult to withdraw the plea except on specific legal grounds. The defendant generally cannot withdraw his/her plea simply because they have had more time to think and have changed their minds.

Good communications between the defense attorney and the defendant are essential to ensure that the defendant is fully informed and comfortable that the plea they enter is in their best interest.

Be sure the attorney you hire is one you can communicate with and who has the experience and knowledge to help reach the best agreement possible.

Friday, September 2, 2011

Changes are coming to California sentencing

Change is coming to felony sentencing in California state courts. Under AB109 and its various amendments and corrections (with more still to come) sentencing in California is going to change for some but not all persons convicted of a felony. Under the general term of "State Realignment" some persons who may have previously been sentenced to go to CDCR(prison)may soon be allowed to serve their time in the county jail. Types and time on probation is changing along with supervison status. Some persons in prisons may be returned to the local jail or other community facilities.

Because of the many questions, the unresolved issues, and still more changes in the pipeline, implementation of the program has been put off until October 1, 2011.

All of this is important if you are charged with a felony. For some people it will not matter--persons with strikes, person who have to register under PC 290, if the current offense is a serious or violent felony or is a "exempt offense." But for others it could be very import in what kind of plea terms to accept, whether to delay entry of a plea and sentencing, and what new options are available for pleas and sentencing.

It is always harder to accomplish a goal when the rules are changing and uncertain, but it may also open new opportunities to the defendant. Therefore it is important that you have competent defense attorney that can get the most for you in this new and uncertain environment.

If you need an honest evaluation of your case go to:

Thursday, April 22, 2010

Fear Based Decisions

Fear is rarely a good basis for making a decision, whether your electing a president, voting on an initiative, buying insurance or selecting a criminal defense attorney. Creating and manipulating fear is as old as commerce and politics. It is also used by some attorneys to scare accused persons into signing a retainer agreement when the accused has little or no information about the charges, the consequences or the alternatives.

Although time and knowledge are what attorneys sell, the buyer should also know what he/she is buying and what alternative are in the market. Neither an accused party nor his/her family or friends should ever retain an attorney who doesn't have time to sit down and discuss what is going to happen during the criminal process and what services the attorney can provide during each stage of that process. Take advantage of free consultations or even those with a small fee. But be willing to walk out without signing any agreement. If after thinking about it you find the attorney a good fit for your needs, you can always go back and retain the attorney based on what you now know and not out of fear of what you don't know.

If the attorney is more interested in scarring you into closing the deal by signing the retainer than explaining and honestly evaluating your situation--move on to another attorney.

If you need an honest evaluation of your case go to: