Attack and enforcement of plea bargains.pdf - ATTACK AND...

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ATTACK AND ENFORCEMENT OF PLEA BARGAINS
By: Jonathan Grossman
A. What is a Plea?
A guilty plea is “more than a confession which admits that the accused did various
acts,” it is a “stipulation that no proof by the prosecutor need be advanced.” ( Boykin v.
Alabama (1969) 395 U.S. 238, 243, 242-243 & fn. 4.) “A guilty plea is the < legal equivalent'
of a < verdict' [citation] and is < tantamount' to a < finding' [citations.]” ( People v. Statum
(2002) 28 Cal.4th 682, 688, fn. 2.) The same applies if the defendant plead no contest. (Pen.
Code, § 1016, subd. 3.)
There are also slow pleas:
“[T]he term ‘slow plea’ . . . is an agreed-upon disposition of a criminal
case via any one of a number of contrived procedures which does not require
the defendant to admit guilt but results in a finding of guilt on an anticipated
charge and, usually, for a promised punishment.” Perhaps the clearest
example of a slow plea is a bargained-for submission on the transcript of a
preliminary hearing in which the only evidence is the victim's credible
testimony, and the defendant does not testify and counsel presents no evidence
or argument on defendant's behalf. Such a submission is “tantamount to a plea
of guilty” because “the guilt of the defendant [is] apparent on the basis of the
evidence presented at the preliminary hearing and . . . conviction [is] a
foregone conclusion if no defense [is] offered.” [Citations.]
Submissions that are not considered slow pleas include those in which
(1) the preliminary hearing involves substantial cross-examination of the
prosecution witnesses and the presentation of defense evidence or (2) the facts
revealed at the preliminary examination are essentially undisputed but counsel
makes an argument to the court as to the legal significance to be accorded
them. ( In re Mosley, [(1970)] 1 Cal.3d [913] at pp. 924-925, fn. 9.)
A wide variety of submissions that fall between these extremes,
however, present troublesome classification problems. . . . [¶] An appellate
court, in determining whether a submission is a slow plea, must assess the
circumstances of the entire proceeding. It is not enough for a reviewing court
to simply count the number of witnesses who testified at the hearing following
the submission. A submission that prospectively appeared to be a slow plea

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may turn out to be part of a full-blown trial if counsel contested the sufficiency
of evidence for those counts or presented another potentially meritorious legal
argument against conviction. Conversely, a submission that did not appear to
be a slow plea because the defendant reserved the right to testify and call
witnesses or to argue the sufficiency of the evidence (see People v. Guerra
(1971) 21 Cal.App.3d 534, 538) may turn out to be a slow plea if the defense
presented no evidence or argument contesting guilt. [¶] If it appears on the
whole that the defendant advanced a substantial defense, the submission
cannot be considered to be tantamount to a plea of guilty. Sometimes, a
defendant's best defense is weak. He may make a tactical decision to concede
guilt as to one or more of several counts as part of an overall defense strategy.