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Plea Bargain or Not to Plea Bargain? Should I Take the DA's Offer? CA Criminal Defense Attorneys

Plea Bargain or Not to Plea Bargain? Should I Take a Deal in Criminal Court?

What is a Plea Bargain

A plea bargain is a negotiated settlement of legal issues, which occurs between a criminal defendant and a prosecutor, or between a criminal defendant and a judge, and which is intended to settle a criminal case before trial on the legal issues.

Example: David is charged with committing first degree murder in San Bernardino. The district attorney offers David a chance to reduce the first-degree murder charge to a second-degree murder charge if David is willing to plead guilty to the reduced charge. If David accepts the district attorney’s offer, then the criminal case is settled, and defendant will not proceed to trial on the first-degree murder charge.

Note: The term “bargain” in the phrase “plea bargain” does not indicate that either the prosecutor, or the defendant, is receiving a positive outcome if the criminal case is settled before trial. It also does not mean that there is any real negotiating that occurs. Rather, plea bargain simply means the parties are resolving a criminal case in lieu of proceeding to trial on the issues.

Example: District Attorney Goliath “offers” Bernadette a chance to resolve her first-offense prostitution case. The terms of Goliath offer would result in a non-jail probation case for Bernadette if she plead guilty to the charge. Goliath will not even consider a counteroffer from Bernadette. Result: Despite Goliath’s refusal to negotiate, or “bargain,” he has still considered to be plea bargaining with Bernadette.

Note: An offer to settle a criminal case before trial can be made by either the prosecutor or the criminal defendant, but in practice, a plea bargain offer almost always originates from the district attorney in a misdemeanor or felony case. In infraction cases, the plea bargain offer is commonly made by the judge.

Types of Plea Bargains

There are two basic types of plea bargaining: 1) Charge Bargaining, and 2) Sentence Bargaining.

Charge Bargaining: Charge Bargaining occurs where the district attorney, or judge, offers to change the criminal charge in exchange for the criminal defendant’s promise to plead guilty, or “no contest,” to the new criminal charge. The offer can originate from the defendant, but again, offers made during plea bargaining generally originate from the prosecutor.

Example: David, who is a police officer, is charged with domestic battery. David is concerned about a domestic battery criminal conviction because he could lose his right to own a firearm, and his job, upon a DV conviction. Therefore, David makes an offer to the district attorney wherein he promises to plead guilty to a disturbing the peace charge in exchange for the district attorney’s promise to dismiss the DV allegation.

Note: Charge bargaining offers originate from the defendant more often than sentence bargaining offers (See Sentence Bargaining below). The most common reasons for this are that the defendant cannot accept certain convictions that could lead to the loss of firearm rights, immigration status, professional licensing status, or military service status, or where the defendant is trying to avoid sex offender registration requirements.

Sentence Bargaining: Sentencing bargaining occurs where district attorney, or judge, offers a lesser sentence and/or less punishment than the maximum sentence or punishment otherwise allowed under the law. Sentence bargaining usually originate with the district attorney (or judge in infraction cases), but it is quite common for the defendant to make a counteroffer for a lesser sentence or punishment after the district attorney announces a lighter sentence or lighter punishment plea bargain option.

Example: Sally is charged with felony welfare fraud and perjury. The maximum punishment for each charge is three years in state prison. However, the district attorney offers the defendant a misdemeanor welfare fraud charge, and dismissal of the remaining charges (the perjury charge), but only if the defendant agrees to plead guilty to the added misdemeanor welfare fraud charge. In this case, the criminal charge remains the same (welfare fraud), but the prison sentence associated with the charge is reduced, and the classification of crime is reduced (felony to misdemeanor) in exchange for Sally’s guilty plea.

Example II: David is charged with three (3) counts of lewd act on a child under 14. He faces twelve years in prison. The district attorney offers David the following: Plead to one charge of lewd act on a child under 14, receive a three (3) year prison sentence, and dismiss the other lewd acts charges, in exchange for David’s promise to plead guilty to one count of lewd act on a child under 14. In this example, the criminal charge remains the same, but the prison sentence associated with the crime is greatly reduced if David takes the plea bargain offer.

Note: Sentence bargaining is more common than charge bargaining in the plea-bargaining process, this is especially true in sex crimes cases, where the district attorney is not willing to change the criminal charge because the district attorney is demanding sex offender registration that is related to the criminal charge. Sentence plea bargaining is also more common than charge bargaining in domestic violence cases, DUI cases, and criminal street gang crimes.

Charge & Sentence Bargaining: Plea bargaining can include a combination of charge bargaining and sentence bargaining. This is common in cases where the defendant is charged with a “wobbler” crime. A wobbler crime is a classification of crimes that may be charged either as a felony, or alternatively as a misdemeanor.

Example: David is charged with felony inflict corporal injury to spouse (PC 273.5), a wobbler offense. The district attorney makes the following offer during plea bargaining: The DA agrees to reduce the felony to a misdemeanor domestic battery (PC 243(e)(1)) [charge bargaining], and to grant a probation sentence to the defendant (sentence bargaining), if the defendant agrees to plead guilty to the domestic battery charge.

Note: Charge bargaining, and sentence bargaining combinations are common. In fact, in many cases, the changing of the criminal charge itself automatically reduces the exposure to the defendant.

Example: David is charged with the crime of robbery; he is also charged with using a firearm during the commission of a felony offense (PC 12022.53). The district attorney offers to dismiss the gun enhancement against David if David pleads guilty to the underlying robbery offense. If David accepts the plea deal, the result will be the dismissal of the gun enhancement (charge bargaining) and a much lighter sentence for David (sentence bargaining) than he otherwise could have received if he had not accepted the plea bargain offer.

Should I Accept a Plea Bargain

The most common question related to plea bargaining is whether the defendant should accept a plea bargain offer from the district attorney (or judge). This is also the most difficult question to answer. This is because every case is different, every offer is different, every defendant’s goals are different, and every criminal defense attorney is different. With that in mind, consider the following when deciding whether to “take a deal or go to trial,”

Every Case is Different: When considering whether a defendant should “take a deal or go to trial,” keep in mind that the facts of every case are different. Some criminal cases will have substantial inculpatory evidence against the defendant, while other cases may have very little inculpatory evidence against the defendant.

Example: David and Goliath are both charged with robbery. David has a criminal history of three prior robbery convictions and there are three witnesses who identify David as the robber. On the other hand, Goliath has no criminal history and the only witness against him is not certain that Goliath is the suspect. Result: David and Goliath are likely to receive different offers during plea bargaining even though both defendants are charged with the same criminal offense.

Every Offer is Different: As stated in the previous example, every offer to plea is different. Therefore, a defendant can only decide whether to take a plea bargain after weighing the strengths and weaknesses of the alleged facts considering the defendant’s goals and willingness to risk a trial on the legal issues.

Defendant’s Goals Vary: When deciding whether to accept a plea bargain offer, the defendant must consider his or her own goals, not the goals of a defendant in general.

Example: Linda, Lucy, and Lorretta are charged with conspiracy to commit welfare fraud. The plea bargain offered to all defendants is one year in county jail and all defendants must accept the offer or none of the defendants may accept the offer (“global resolution”). Linda is a non-US citizen, and her primary concern is deportation from the US, not jail; Lucy’s primary concern is remaining out of jail because she has young children to raise; Loretta’s primary interest is not paying restitution because she has no money. Result: These ladies all have different reasons for not accepting the offer and a counteroffer, even if accepted, will not likely result in a negotiated settlement.

Attorney Skill-Levels Differ: One of the most factors in deciding whether to take a deal during plea bargain is the skill level of the criminal defense lawyer. An experienced criminal defense attorney who is familiar with the district attorney, and one who is adept at trial, if necessary, will usually obtain the best offer for the defendant during plea bargaining. A good attorney will understand the client’s individual needs and he or she will be able to find the defenses and make the arguments that convince a prosecutor that the case is not as straightforward as the district attorney would otherwise like it to be.

Note: Criminal defense attorneys with deep experience, including trial experience, tend to negotiate on principles of legal procedure and factual disputes. These experienced criminal defense attorneys can see ahead to trial and how the evidence will play out at trial. New criminal defense attorneys tend to lack this knowledge and many district attorneys know that new criminal defense attorneys talk their client’s into accepting plea deals because of the attorney’s own insecurity of proceeding to trial.

Is the Offer a Good Offer? The only way to know whether an offer to plea a good offer is to have an experienced criminal defense attorney review the facts of the case, review the terms of the offer, and balance those issues in light of the defendant’s goals.

Example: David is charged with lewd acts upon a child under 14. David has no criminal history, there is no forensic evidence against David; David made no statement; there is only one witness to the alleged offense; the one witness is not sure whether David is the suspect, and the alleged victim is motivated to fabricate the allegation. Result: If the case is filed against David, he is likely to receive an offer that reflects the weakness of the district attorney case (no jail); however, it is David that decides whether he wants to go to trial and risk a conviction on a very serious offense.

Note: It is not uncommon for a defendant to ‘take an offer’ even over the defense attorney’s advice. This is because the defense attorney cannot put himself or herself in the shoes of the defendant and the defendant’s goals. Sometimes the goals of the defendant have nothing to do with direct or indirect legal punishment. Sometimes a defendant is simply terrified of the trial itself or the defendant wants to give closure to his or her victim and not put them through a trial.

Parole and Probation Considerations: A defendant who ‘takes a plea’ after plea bargaining, and who either allows “open sentencing” (unknown sentence until plea), or a defendant who is seeking early release on parole after prison, is more likely to get a lower jail sentence or earlier parole, respectively, when he or she pleads guilty (or “no contest”) as opposed to fighting the case through trial and being found guilty. This is because the defendant who pleads guilty (or “no contest”) demonstrates some responsibility for his or her actions, which is the starting point for considerations to lighter sentencing and early release on parole.

Withdrawing an Offer: What happens if defendant changes his mind about accepting an offer after he has accepted the offer?

A defendant who has not been sentenced according to the terms of a plea bargain may usually rescind or withdraw his plea bargain offer (or counteroffer). The district attorney would not normally withdraw an offer unless some condition of the offer is breached by the defendant before sentencing.

Note: The details of the plea bargain negotiation are not admissible as evidence against the defendant if the deal ‘falls apart.’ Of course, a defendant who rescinds his acceptance, or offer, might not be able to negotiate with good faith if plea negotiations recommence.

Example: David is offered a probation sentence in a child endangerment case. David accepts the district attorney’s offer, and he is ordered to return to court at a subsequent court hearing for sentencing. David fails to appear for his sentencing hearing and a warrant is issued for David’s arrest. When David is arrested, the district attorney withdraws the prior offer for a probation sentence. Result: If David attempts to reenter into plea negotiations on the child endangerment case, the district attorney may, but is less likely to, reoffer the original offer for a probation sentence.

Limitations to Plea Bargains

There are legal limitations to plea bargaining. For example, according to Penal Code 1192.7, serious crimes may not be negotiated by plea after preliminary hearing without advising the court as to the good cause reason why plea bargaining should be re-commenced.

Other legal limitations include the inability of the district attorney to negotiate sex offender registration requirements for qualifying sex offenses, the inability of the district attorney firearm restriction for any felony or domestic violence conviction, the inability of the district attorney to negotiate driving privileges after a DUI conviction, the inability of the district attorney to negotiate probation length in sex cases and domestic violence cases, and more.

Example: Jason is charged with annoy or molest a minor. Jason is willing to accept the criminal charges during plea bargaining negotiations, so long as the district attorney does not require Jason to register as a sex offender under California law. Result: Even if the district attorney is willing to offer Jason a non-sex offender registration requirement, the law does not allow the district attorney to control this issue for certain criminal offense, including the crime of annoy or molest a minor (PC 647.6). Of course, the district attorney might offer a change of criminal charge to avoid the sex offender requirement (See Charge Bargaining above).

Other restrictions on plea bargains include negotiations to reduce immigration consequences, professional licensing consequences, arson or gang registration, Child Abuse Central Index (CACI) listing, and more. Again, to avoid the restrictions, the district attorney might be willing to change the criminal charge.

Example: Betty is charged with DUI. Betty is a commercial truck driver and a DUI will severely affect her future as a commercial truck driver. The district attorney is willing to offer a probation sentence in exchange for Betty’s plea of “no contest,” but the district attorney cannot control what the Department of Motor Vehicles does with Betty’s Class A license after the conviction. Therefore, the district might be willing to change the DUI charge to an offense that will not affect Betty’s class A license as severely (i.e., reckless driving, speeding, etc.).

Prop 115 Limitations: A district attorney’s ability to negotiate in plea bargaining is limited, at least to some degree, by the alleged victim’s desire for prosecution. California Prop 115 gives victims the right to be part of the plea bargaining and prosecution process, at least to some degree. The ultimate decision as to whether the district attorney makes, or accepts, an offer during plea bargaining rests with the district attorney, but it is not uncommon for district attorney to refuse certain counteroffers because it violates the alleged victim’s wishes.

Example: Monty is charged with sexual battery. The district attorney is willing to change the charge lewd act in public, a much less punishing charge and one that does not require sex offender registration. However, the victim in the case does not want the district attorney to engage in charge bargaining with the defendant. Result: The district attorney will give great consideration to the desires of the victim as to not changing the sexual battery charge to a lewd act in public charge, but the ultimate decision as to charge bargaining will rest with the district attorney.

Special Considerations

Lawyer Insecurity: Sometimes, an attorney might unconsciously pressure a defendant to accept a plea bargain offer, not because the deal is so great, but because the attorney’s fear or insecurity with proceeding to trial is subconsciously working to pressure the defendant into accepting a plea bargain offer. This is more likely to occur with newer criminal defense attorneys or even experienced criminal defense attorneys with little or no jury trial experience.

Unknown Plea Bargain Terms: Not every term of a plea bargain is known to the defendant. This is especially true when the defendant is hyper-focused with certain terms at the expense of his attention to other terms. However, all direct consequences must be known to the defendant before he accepts a plea bargain. Otherwise, the defendant may withdraw his guilty or “no contest” plea.

Example: Jose is charged with assault with a deadly weapon. The district attorney offers Jose a probation sentence, as opposed to a prison sentence, so long as Jose pleads guilty to the offense. Jose jumps at the chance to plea to the negotiated offer. However, Jose is not informed by his attorney, or the court, that he could be deported as a non-US citizen if he pleads guilty to the charged offense. After Jose discovers this direct consequence of his guilty plea, he motions the court to have his guilty plea withdrawn. Result: Jose may withdraw his plea if he can prove that neither the court, nor his defense attorney, informed him of the direct consequence of his guilty plea (i.e., deportation from the United States).

Counteroffer Precautions: An offer by the district attorney, or court, may be accepted at any time before the offer is withdrawn by the district attorney, or until the offer is rejected by the defendant, if ever. Unfortunately, the offer is sometimes impliedly rejected when the defendant makes a counteroffer, unless the defendant is only ‘inquiring as to the acceptance of a defense counteroffer.’ This is another reason why it’s important to secure experienced criminal defense attorneys who are careful not to impliedly reject offers with their counteroffers.

Note: In most cases, the district attorney will ‘keep the offer open’ despite the defendant’s counteroffer attempts. But to keep the case from too many continuances, the district attorney will sometimes keep the offer open until a certain date, as opposed to leaving the offer open forever.

Defense Attorney Fees: It is not uncommon for a defendant to accept a plea bargain offer because he does not have sufficient funds to retain his preferred attorney for trial. This is common with private attorneys and one of the drawbacks of hiring a private attorney for only a portion of the defendant’s defense.

Example: Billy loves his criminal defense attorney, Moses, and Billy believes that he has a strong defense if he proceeds to trial with Moses as his attorney. Therefore, Moses initially rejects decent offers from the district attorney to settle the case without proceeding to trial. However, Billy has retained Moses for only a portion of the case, and Billy cannot afford Moses to have Moses represent Billy at trial. Therefore, Moses accepts an offer from the district attorney that he was never comfortable accepting in the first place.

Note: This issue of not retaining the criminal defense attorney through trial can be avoided where the attorney is upfront and honest about the district attorney’s offers considering the attorney’s limited representation.

To learn more about plea bargaining in criminal cases, including how to know ‘if an offer is a good offer’ during plea bargaining, contact our highly experienced criminal defense attorney for a free consultation. We offer second opinions on reviewed evidence as it relates to any ‘offer to settle’ made by the district attorney or court. Our award-winning attorneys are successful criminal defense trial attorneys and we have settled hundreds of cases through plea bargaining when it’s appropriate. Call today!


Further Reading

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Plea Bargain


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