A defense lawyer and their client will first decide that they won't take the case to trial. Then, the lawyer should exhaust all potential motions that could be filed on the client's behalf.
When it looks like the client will have to work out some deal with the prosecutors, they've entered the plea-bargaining process. The defense lawyer will typically approach the prosecutors to see their position.
I would like to have our position in place before I approach the prosecutors so that I know exactly what my client is willing to take and what they're not willing to take. That allows me to try to convince the prosecutors of our position as I'm talking to them. I'll also bring up my client's good points:
- they have no criminal record;
- they have a job;
- they have a family;
- they have kids;
- they suffer from some alcohol, drug, or mental health issues, etc.
When it comes to working out a plea bargain, there is no cookie-cutter approach. A defense lawyer has to look at the particular defendant and the facts of the case. Sometimes, an act like paying the victim back restitution, for example, can move the prosecutors.
Mitigation Package
Let's say the prosecutors want jail time, but your client is terrified of going to jail. We can pay the restitution off upfront, which makes the prosecutors look good because now they're getting a victim made whole in exchange for an offer of no jail time.
I would also like to put together a mitigation package. I collect character letters and documents that show all the good stuff about a particular individual so that we can remind people that the defendant is an individual, not a case, not a crime.
By doing so, we try to convince the prosecutors to give them a resolution protecting their rights, freedom, and liberty.
We often try to reduce felonies to misdemeanors and keep people out of prison. Securing a plea deal will differ depending on each defendant and their case circumstances.
Are Plea Bargains Available in Every California Criminal Case?
Basically, when a criminal case is filed, there are only a few ways to dismiss it or resolve it. Dismissing the case is a rarity because the defense would have to convince the prosecution that they've made a mistake once they've evaluated all of the evidence and filed the case.
To do so, the defense would have to bring additional evidence that the prosecutors or police didn't know about when the case was filed. The evidence might convince the prosecutor to dismiss the case, but this only happens a small percentage of the time.
One way to resolve the case is to take it to trial. The jury determines whether the defendant is innocent or guilty. Then, the judge either dismisses the case after a not guilty verdict or punishes the defendant for their conduct after a guilty verdict.
Now, not every criminal case can go to jury trial because it would overrun the criminal system. In the vast majority of cases, the prosecutors have some sort of evidence against the defendant, or they wouldn't have filed the case in the first place.
That leaves the third and final option: a plea bargain.
Penal Code 187 Murder Cases
In all cases, there is an opportunity to take a plea deal, which can take different forms. For example, the prosecutors are particularly emotional about a murder case.
They might tell the defense, “Your client is facing 50 to life, but we'll give them 25. Take it or leave it. If you don't like what we're offering, go to trial, and good luck to you.”
This is a nasty form of plea bargaining, one in which the prosecutors basically force the defendant to agree to what they think should happen.
Conversely, a defense lawyer might approach the prosecution and say, “My client has no criminal record. They have a family and a job. They just made a mistake.
Please give them a diversion program so we can protect their record and keep them out of jail. If they do a good job and show they're worthy, we can dismiss all the charges against them.”
Then, of course, there's everything in between, so it depends on the case type. While every case is suitable for some form of plea bargaining, the issue is the type of plea bargaining.
This will vary depending on the circumstances of the case and what's fair under those circumstances. Your criminal defense attorney will be the one who brings that home for you.
Judge's Approval of a Plea Bargain
Does the judge need to approve every plea bargain across the bench?
Technically, the answer to that question is yes. However, I have seen a few judges look at a plea bargain between the defense and the prosecution and say, “I'm not accepting this.”
Rejection is usually reserved when the judge considers the defendant is being treated too nicely. They'll rarely suggest the prosecution is too harsh on the defendant.
That would only happen if the defense comes to them directly because the prosecutor is unreasonable. While I've seen a few circumstances where the judge will give the defendant something that goes against the prosecution, it's rare for the judge to favor the defendant in a plea bargain.
More than 95% of cases in Los Angeles County are resolved through a plea bargain between the defense and the prosecution, which leaves the judge doing little more than agreeing to the deal and then sentencing the defendant in accordance with the plea bargain.
If the judge were to stop the plea bargain because this particular defendant got too good of a deal, the defense lawyer would be left trying to move past the judge.
They might take the case to the preliminary hearing stage, which would move it to a different courtroom. The lawyer could try to work things out with the new judge. Again, the judge's approval depends on the circumstances.
That's why it's so important to hire an attorney who has experience and success in negotiating plea bargains and trying cases.
If a lawyer can't try a case, they're not going to be very effective in plea bargaining—why would the prosecutors care what an attorney has to say if they can't win a case at a jury trial?
Can There Be a Plea Bargain Without the Prosecutor's Approval or Input?
There are criminal cases where a prosecutor is not being reasonable. For instance, a prosecutor might try to ram jail down the throat of a defendant who doesn't deserve to go to jail.
In those instances, a defense attorney can approach the judge, present them with the mitigating factors, and ask, “Your Honor, if we plead open to the court, what would you give the defendant in this case?”
The judge can give the defendant community service, for example, instead of jail time. In Los Angeles County, judges will sometimes undercut the prosecution, and in fact, some courts are set up so that the judge, not the prosecutor, makes the offers.
It depends on the jurisdiction in Los Angeles County, the courthouse (38 in LA County alone), and the judge your case receives.
Overall, a lot of strategy goes into these criminal cases, and it's crucial to have a defense attorney on your side. I've been doing this for 27 years.
I worked for the district attorney's office in the early 1990s and then for a superior court judge, but I've been a criminal defense attorney since 1994.
Should a Defendant Ever Accept a Plea Deal Without an Attorney?
No. Trying to represent yourself without an attorney ends in disaster; there are often ramifications that you would never have considered on your own.
To name one, you lose your gun rights for life if you plead to a felony, even if you want a gun for personal and home protection or if you shoot for sport. You also lose your right to vote.
You need a seasoned criminal defense attorney to help make you aware of the potential ramifications and to guide you toward the best legal strategy.
Not just any criminal defense attorney—one who's successfully handled the type of case you're charged with. Hedding Law Firm is a criminal defense law firm located at 16000 Ventura Blvd #1208 Encino, CA 91436.
