1ATTACK AND ENFORCEMENT OF PLEA BARGAINSBy: Jonathan GrossmanA. What is a Plea?A guilty plea is “more than a confession which admits that the accused did variousacts,” 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 criminalcase via any one of a number of contrived procedures which does not requirethe defendant to admit guilt but results in a finding of guilt on an anticipatedcharge and, usually, for a promised punishment.” Perhaps the clearestexample of a slow plea is a bargained-for submission on the transcript of apreliminary hearing in which the only evidence is the victim's credibletestimony, and the defendant does not testify and counsel presents no evidenceor argument on defendant's behalf. Such a submission is “tantamount to a pleaof guilty” because “the guilt of the defendant [is] apparent on the basis of theevidence presented at the preliminary hearing and . . . conviction [is] aforegone 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 theprosecution witnesses and the presentation of defense evidence or (2) the factsrevealed at the preliminary examination are essentially undisputed but counselmakes an argument to the court as to the legal significance to be accordedthem. (In re Mosley, [(1970)] 1 Cal.3d  at pp. 924-925, fn. 9.)A wide variety of submissions that fall between these extremes,however, present troublesome classification problems. . . . [¶] An appellatecourt, in determining whether a submission is a slow plea, must assess thecircumstances of the entire proceeding. It is not enough for a reviewing courtto simply count the number of witnesses who testified at the hearing followingthe submission. A submission that prospectively appeared to be a slow plea
2may turn out to be part of a full-blown trial if counsel contested the sufficiencyof evidence for those counts or presented another potentially meritorious legalargument against conviction. Conversely, a submission that did not appear tobe a slow plea because the defendant reserved the right to testify and callwitnesses 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 defensepresented no evidence or argument contesting guilt. [¶] If it appears on thewhole that the defendant advanced a substantial defense, the submissioncannot be considered to be tantamount to a plea of guilty. Sometimes, adefendant's best defense is weak. He may make a tactical decision to concedeguilt as to one or more of several counts as part of an overall defense strategy.