Can You Negotiate a Sentence on a Misdemeanor? Plea Agreements Explained.

Surprise! Most outcomes in California misdemeanor criminal and traffic courts are negotiable.

Defendants can ask for what they want before pleading guilty, and judges, commissioners, and even prosecutors have discretion on what penalties to impose. They can also switch out charges, dismiss charges, and add new ones based upon agreement of everyone.

The process of working out a negotiated sentence by agreement is called “plea bargaining”. The agreement for a sentence or a conviction label is called a “plea agreement”.

A Plea Agreement is really just a pre trial settlement of a case. Usually, the courts and prosecutors like to see a case end by agreement, because it minimizes the use of the court’s resources. Here is how it works.

A Defense Attorney starts work on a common case by pleading “not guilty” to all charges, as is the routine in everyday cases. Then, the Defense Attorney begins to talk with the judge (Commissioner) or prosecutor (Deputy District Attorney) to determine what is really involved in a case.

Sometimes this “plea discussion” begins right away, or it may occur over the course of days or weeks as evidence is reviewed and evaluated by everyone except the judge. Some public defenders have done this so many times with the same DAs that they dont even need to talk, they can work it out without speaking.

Typically, a skilled defense attorney will point out facts to the judge or prosecutor that work in favor of the client, and discuss the strength of the evidence with the prosecutor or judge. Then, the trick is to persuade everyone to work with your vision of a good outcome.

If there are weaknesses in a case that may get a jury to rule in favor of a defendant, the Defense Attorney has leverage to negotiate a settlement because he or she can demand a trial that may result in a win for the defense (called an acquittal).

Prosecutors don’t like to lose trials, and will be flexible on weak cases to avoid acquittals.

But even with bad facts, much can be negotiated. Judges and prosecutors want to end cases early and efficiently to prevent a waste of court resources – even when a conviction is certain.

For example, if the prosecutor can talk the defendant into pleading guilty, they avoid the following work on the case:

They do not have to prepare the case for trial, do not have to interview witnesses, do not have to bring the witnesses to court, not have to bring the evidence brought to court, etc.

Therefore, the “bargain” for a prosecutor or court in a plea bargain is that it saves the prosecutor work, and it saves the courts time and money.

To get this done, they will often work with a defendant or a Defense Attorney to get a guilty plea at an early stage by offering a reduced sentence or dismissal of a charge.

Typically, a prosecutor or judge will make a “plea offer” to the Defendant in court and the defendant can then accept the offer, or reject it and demand a trial.

When a defendant accepts a judges or prosecutors offer, then they must change their plea from “not guilty” to “guilty” to end the case. The agreement to do this is called a “Plea Bargain”.

Plea Bargains are common in all courts. They are an effective mechanism for the court to avoid the wasted resources required to have a trial for a guilty person. Most often it is the defense Attorney who negotiates a plea agreement for a defendant with the judge or prosecutor.

However, a defendant without an attorney is free to do the negotiating him or herself. The trick to getting a beneficial plea agreement is to have a plan, and to know what to ask for. This can only be done by researching the charges in a case.

A defendant should not be afraid to ask for what they want before pleading guilty. After all, if the request is denied, the defendant may demand a trail on the charges. The judge cannot force a person to plead guilty without a trial. The defendant must consent to a guilty plea or they get a trial.

Common requests that are granted in traffic court plea agreements are extra time to pay fines, conversion of a jail sentence to community service, or a dismissal of minor charges in exchange for a guilty plea to the more serious charge.

Whether or not the offer is a bargain for the defendant is something a defendant must decide for themselves.

Does it make sense to accept the offer, or does having a trial make more sense?

An Attorney’s help in evaluating a plea offer can be very helpful at this stage, because an Attorney will often know what the best offers are, and whether or not a better result at trial is possible.

If a defendant accepts a plea offer from the court or the prosecutor in a common misdemeanor case, then a number of things happen that lead to an ending of the case – which is also called a “disposition”.

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First, the defendant reviews (hopefully with an Attorney) the contents of a form called a “change of plea form”, or “waiver form”. This form is required in misdemeanor and felony cases because it confirms in writing that the defendant is willing to give up their right to a jury trial and change their “not guilty” plea to “guilty”.

Once signed, the waiver form goes to the judge. The judge reviews the form and then asks questions to be sure the defendant understands what is happening. The questions are usually: “Are these your initials?; Is that your signature?; This form says you want to plead guilty to______, is that what you want to do?;

and, other questions to make sure you know and understand what you are doing and that changing a plea to guilty is what the defendant wants to do.

A defendant may change their plea from “not guilty” to guilty” at any time if they wish to accept the plea offer.

If a defendant does not accept (or get) a plea offer from District Attorney or the judge’s offer, and refuses to change their plea, then a case will move forward to preliminary hearing and / or a final trial. And of course, not all cases can be resolved by agreement without a trial.

For more detailed information on how plea agreements work, see the Marin County Public Defenders Office. Questions Leave a comment, we try to answer the all. Want a Free Attorney Case Review?

This free legal self help article was written by a licensed attorney and is brought to you by Google Adsense:

About Attorney Christopher Dort

Public Interest Attorney. CA State Bar #196832. Licensed to practice law in California 1998, and then the US Federal District Court in 2000. Civil Litigation Trial Attorney (Insurance Defense Firms) 2000-2003. Private practice 2003 - present. First Solo Criminal Jury Trial 1998 (Santa Cruz County). First Civil Jury Trial 2002 (Orange County). Santa Cruz County Public Defenders Office 1996-1999 (law clerk). BA in Politics from UC Santa Cruz, 1995. JD, University of California, Hastings, 1998.
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