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  #1  
Old 02-09-2018, 06:02 PM
Halo527 Halo527 is offline
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Default California - Plea Deal or Plead Guilty to Judge

If the DA is stuck on a 15 year plea bargain, but the judge has given an indicated sentence of 12 years, is it better to go with the judge if your attorney can't get the DA to come down? The judge told us that if our son pleads guilty, that he will end up with 11 strikes (multiple victims).

Another choice might be trial by judge, but we were told that if he found our son guilty, that he would then receive the low term for each charge he was guilty of, so it seems we wouldn't want to take this chance.

Is the law really this freaken crazy?
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Old 02-09-2018, 06:56 PM
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Pleading guilty in open court without a plea agreement is a blind plea. You are then at the mercy of the judge who can sentence how he feels. Is that worth the risk? It's up to you. Consult your attorney who hopefully knows how that judge operates.

I don't know what you mean by that last line. For crimes with victims or multiple victims, those crimes are sentenced harshly. Yes. IANAL but a bench trial only seems like a good idea if the law is truly on your side and you're not planning to exploit emotion as part of the defense. I would think that with the vast majority of cases, a bench trial would be a terrible idea.

A fifteen year deal seems like he's really facing 25 years. Is it a good deal? Who knows. Only you have the facts of the case at your disposal. No two cases are the same.
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Old 02-09-2018, 07:34 PM
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Gotta talk with your attorney. Your attorney knows if the state's attorney is being reasonable or unreasonable in the plea offer. Your attorney knows how that judge operates. Your attorney knows how that judge responds to that prosecutor. Your attorney can give you the best advice as to what the trends mean. There will be no guarantee, but at least you will be able to make decisions based on actual, real information.

A bench trial can be a wonderful thing. The general wisdom is that if the issue is emotional in nature (say a father killing his daughter's rapist), you take it before a jury as the jury may be swayed more by the emotion of the issue rather than the law. If the issue is technical, you give it to the judge rather than a jury because the judge will see through the emotions of the case (multiple victims, especially with lasting impact) and adjudicate based on the law without being swayed by emotion. If the case is weak, but emotionally charged, the judge is usually the best bet.

There is a caveat, however. That caveat is that in some states, the threshold for conviction at a bench trial can be a bit lower than at a jury trial. Juries are beyond a reasonable doubt. Benches can be as low as clear and convincing. This can be a big difference and lead to a conviction.

The plea system is strange. It places a lot of power, the bulk of power, in the hands of the prosecutor, and that can suck. We need a more rational plea system, but we need a plea system because there is no way the courts could handle a trial for every defendant without us spending a lot more tax dollars on courts, judges, prosecutors, crime labs, etc, etc, etc. we would have no money left for roads, schools, the military, and everything else our tax money, federal and state, pays for.

Look, whatever your son decides is what you need to support. Help him make his own decision as he has to live with it. Help him with his mind and his heart and his soul and make sure he's not making decisions from a dark place. Remind him his life isn't over, no matter how much time he winds up doing. Discus his options, but concentrate on helping him make his own decision and keeping in a place where he won't regret that decision. Too often, people facing a long period of time in prison or regretting the actions that hurt a lot of people spiral down into a dark place where they just want to punish themselves. This is a short lived mental space to be in, but if they act in that space, they will face significant consequences. Remind him that there,s a difference between taking responsibility for his actions and taking the harshest sentence he can get. He will be responsible for his own rehabilitation, and unfortunately the criminal justice system and prison rarely aid in this endeavor.
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Old 02-10-2018, 10:23 AM
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Gotta talk with your attorney. Your attorney knows if the state's attorney is being reasonable or unreasonable in the plea offer. Your attorney knows how that judge operates. Your attorney knows how that judge responds to that prosecutor. Your attorney can give you the best advice as to what the trends mean. There will be no guarantee, but at least you will be able to make decisions based on actual, real information.

A bench trial can be a wonderful thing. The general wisdom is that if the issue is emotional in nature (say a father killing his daughter's rapist), you take it before a jury as the jury may be swayed more by the emotion of the issue rather than the law. If the issue is technical, you give it to the judge rather than a jury because the judge will see through the emotions of the case (multiple victims, especially with lasting impact) and adjudicate based on the law without being swayed by emotion. If the case is weak, but emotionally charged, the judge is usually the best bet.

There is a caveat, however. That caveat is that in some states, the threshold for conviction at a bench trial can be a bit lower than at a jury trial. Juries are beyond a reasonable doubt. Benches can be as low as clear and convincing. This can be a big difference and lead to a conviction.

The plea system is strange. It places a lot of power, the bulk of power, in the hands of the prosecutor, and that can suck. We need a more rational plea system, but we need a plea system because there is no way the courts could handle a trial for every defendant without us spending a lot more tax dollars on courts, judges, prosecutors, crime labs, etc, etc, etc. we would have no money left for roads, schools, the military, and everything else our tax money, federal and state, pays for.

Look, whatever your son decides is what you need to support. Help him make his own decision as he has to live with it. Help him with his mind and his heart and his soul and make sure he's not making decisions from a dark place. Remind him his life isn't over, no matter how much time he winds up doing. Discus his options, but concentrate on helping him make his own decision and keeping in a place where he won't regret that decision. Too often, people facing a long period of time in prison or regretting the actions that hurt a lot of people spiral down into a dark place where they just want to punish themselves. This is a short lived mental space to be in, but if they act in that space, they will face significant consequences. Remind him that there,s a difference between taking responsibility for his actions and taking the harshest sentence he can get. He will be responsible for his own rehabilitation, and unfortunately the criminal justice system and prison rarely aid in this endeavor.
Thank you for your candid and Informative respose. In our case there were multiple victims which is why the charges are so high. However no one was hurt, only scared for their lives, but in California that's enough to give someone an assault charge. Other similar cases are getting 2 to 5 years, even with multiple victims. There is one case in the same courthouse where a person was deliberately killed, with premeditation (shot in the head) and that guy got 10 years. Our lawyer and us think that 15 is way out of line. 10 of the 15 is for a gun enhancement. The gun was shot, but it was aimed towards the ceiling. Situation happened as my son had a mental breakdown and he was also on substances, plus provoked. Lots of mitigating evidence. The judge said he thought 12 was what he would give, but he also admitted to our lawyer in chambers that he knew our son was having a nervous breakdown. But so much for SB 260, where the judge can drop an enhancement. Because of all the recent gun violence, I don't think judges will drop enhancements, and honestly, I can't blame them.

We are caught up in the way things can be done if the DA desires. My son created a perfect storm in this case. I'm hoping now that the lawyer can get it to 10 years, 12 tops, but if the DA sticks with the 15, I'm debating on pleading to the judge, even if he ends up with all the strikes. Frankly, my kid is suicidal. Whether he gets 10, 12 or 15 years or has a bunch of strikes, what's it going to matter if he's dead?
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Old 02-09-2018, 08:01 PM
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Is the law really this freaken crazy?
Yes. In California, especially yes. I don't know what charges you're looking at, but my husband was offered a plea of AWD for seven years. No priors, 20 years old. It was pulled before he could make a decision because the prosecution discovered evidence they felt could seal a greater conviction. He wound up with 57 years, some stayed, some concurrent, totaling 37 years to serve at 85%.

So my short answer is yes. So many factors to consider when looking at a plea, not the least of which: what does worst case scenario look like by jury. Them telling you "low end of each count" is a guess, at best.

If use of a weapon or gang association is even a remote factor here, expect a jury to hit hard. :/
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Old 02-10-2018, 10:30 AM
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Yes. In California, especially yes. I don't know what charges you're looking at, but my husband was offered a plea of AWD for seven years. No priors, 20 years old. It was pulled before he could make a decision because the prosecution discovered evidence they felt could seal a greater conviction. He wound up with 57 years, some stayed, some concurrent, totaling 37 years to serve at 85%.

So my short answer is yes. So many factors to consider when looking at a plea, not the least of which: what does worst case scenario look like by jury. Them telling you "low end of each count" is a guess, at best.

If use of a weapon or gang association is even a remote factor here, expect a jury to hit hard. :/
Thank you for sharing your experience. If my son was convicted of all counts by a jury, he would get 34 years. I was told that plea deals are usually 50% of a full sentence. There is a gun enhancement in this case of 10 years, but no one was hurt. The gun was fired into a ceiling. They are giving him 1 count of AWD for 3 years and some other minor charges. Although the judge could strike the enhancement if he pleads guilty, I don't think he would. But if we plead guilty, he would have 11 strikes.
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Old 02-10-2018, 10:52 AM
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Thank you for sharing your experience. If my son was convicted of all counts by a jury, he would get 34 years. I was told that plea deals are usually 50% of a full sentence. There is a gun enhancement in this case of 10 years, but no one was hurt. The gun was fired into a ceiling. They are giving him 1 count of AWD for 3 years and some other minor charges. Although the judge could strike the enhancement if he pleads guilty, I don't think he would. But if we plead guilty, he would have 11 strikes.


The number of strikes is relatively irrelevant here (because it sounds like this is a strike case no matter what) if as part of the deal they strike some or all of them for sentencing purposes. It would only mean that, once free, any future strike would subject him to 25-to-life.

Again. Attorney knows best. The fact you have a deal for 15 and a potential open plea for 12 on the table means he has a much better option than going to trial and losing. As painful a pill as it is to swallow.....unfortunately the law has not caught up to modern understandings of mental health :/
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Old 02-10-2018, 12:32 PM
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The number of strikes is relatively irrelevant here (because it sounds like this is a strike case no matter what) if as part of the deal they strike some or all of them for sentencing purposes. It would only mean that, once free, any future strike would subject him to 25-to-life.

Again. Attorney knows best. The fact you have a deal for 15 and a potential open plea for 12 on the table means he has a much better option than going to trial and losing. As painful a pill as it is to swallow.....unfortunately the law has not caught up to modern understandings of mental health :/
I know . But that's a good point on the strikes, plus 12 years is still better than 15, and maybe the judge might still strike the enhancement, so I'll c if the lawyer can get the DA down to 12 and if not, figure out what to do from there.

By the way, my son said that some guys at county who came down from prison, said that they were not making people serve time for the enhancement, even if there was a violent offense. He's been given so much wrong jailhouse lawyer advise, that I don't want to encourage this line of thinking, especially if it's not true. He said that they are only considering a crime as violent if someone actually had great bodily injury. Have you heard anything like this?
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Old 02-10-2018, 12:35 PM
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I know . But that's a good point on the strikes, plus 12 years is still better than 15, and maybe the judge might still strike the enhancement, so I'll c if the lawyer can get the DA down to 12 and if not, figure out what to do from there.



By the way, my son said that some guys at county who came down from prison, said that they were not making people serve time for the enhancement, even if there was a violent offense. He's been given so much wrong jailhouse lawyer advise, that I don't want to encourage this line of thinking, especially if it's not true. He said that they are only considering a crime as violent if someone actually had great bodily injury. Have you heard anything like this?


If your sonís crime would be considered violent, then they are misinforming him.

Prop 57 started a slough of new rumors. His attorney will know best how that applies if at all.

The good news is, if it is violent he is still eligible to earn certain milestones and educational credits that were not available before. Thatís something he will learn about when he gets to prison, but it could lead to a significant reduction (months, maybe even a year or two) in addition to any good time credits depending on what he is eligible for and how much he programs.

There IS hope that he will be able to get home faster than that 12 year number. Or 15 year number. It WILL take time. But there is hope.
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Old 02-12-2018, 10:08 AM
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I know . But that's a good point on the strikes, plus 12 years is still better than 15, and maybe the judge might still strike the enhancement, so I'll c if the lawyer can get the DA down to 12 and if not, figure out what to do from there.

By the way, my son said that some guys at county who came down from prison, said that they were not making people serve time for the enhancement, even if there was a violent offense. He's been given so much wrong jailhouse lawyer advise, that I don't want to encourage this line of thinking, especially if it's not true. He said that they are only considering a crime as violent if someone actually had great bodily injury. Have you heard anything like this?
I saw your comment re the gun enhancement and was going to post about "potential" for judge to strike, then saw your later post above.

This is brand new law and it is real, absolutely nothing to do with prop 57. I will add this also has absolutely nothing to do with a "blind plea" discussed earlier. Effective Jan 1 2018 judges now have the authority to "strike or dismiss" that enhancement even if it's part of a plea worked out with a DA. Your attorney probably cannot and has not said a great deal about chances since there is ZERO HISTORY on judges exercising this authority. I hope your son can set some precedent for everybody.

Prior to this year if DA wanted to impose it, you are screwed no matter what. My son - both in criminal court and in Veterans court - the judges asked the DA's to drop that enhancement. Similar to your son with DA's threatening 30 or so years with their usual piling on the charges crap and the judges were aware of that nonsense. Everyone wanted him sentenced to the Veterans court treatment program but enhancement made him ineligible. He is rated 90% disabled by the VA due to physical injuries, PTSD, and substance abuse from his Army service, those disabilities all directly tied to his crime, no one including DA's disputed that.

DA's response to all of us including the 2 judges amounted to the middle finger.

If this new law were in place I have no doubt my son would be in the Veterans Court program now instead of serving 12 years at 80%. If I sound edgy about justice system you read me correctly; it is full of abuse and injustice. I have seen other posts on this site with similar comments opining the judge didn't want the enhancement imposed but was powerless. Judges are no longer powerless.

The wording of the law states judge can now strike or dismiss "in the interest of justice". Whatever that subjective statement means. No doubt DA's will make a gigantic stink about it any time it happens.

You're talking in your posts about 17, 14, 12 years. You can also think about 7, 4, 2 years. That is possible.

If it were me, I would push the hell out of that. Whatever it takes, however long it takes. This enhancement - 10, 20, life - is, considered amongst the most punitive, if not the single most punitive sentence in the US and it needs to go the way of the Dodo bird. The new law is a good start in that direction.

Good luck.
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Old 02-10-2018, 01:39 AM
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If the law is against you, argue the facts.

If the facts are against you, argue the law.

If both the law and the facts are against you, pound on the table.
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Old 02-10-2018, 02:33 AM
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If the DA is stuck on a 15 year plea bargain, but the judge has given an indicated sentence of 12 years, is it better to go with the judge if your attorney can't get the DA to come down? The judge told us that if our son pleads guilty, that he will end up with 11 strikes (multiple victims).



Another choice might be trial by judge, but we were told that if he found our son guilty, that he would then receive the low term for each charge he was guilty of, so it seems we wouldn't want to take this chance.



Is the law really this freaken crazy?


Attorney knows best.

But yes, if the judge indicates to the attorney that he will sentence to 12 years if your son takes an open plea rather than the DAís offer, itís a pretty good bet he will stick to that.

Of course the only way to know for certain is for your sonís attorney to confirm with the judge that he will, in fact, hold solid on this offer and not change his mind. The attorney will know best here.

Good luck.
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Old 02-12-2018, 11:00 AM
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There is a county attorney I deal with on a regular basis (and every other defense attorney deals with) who is stupid in her plea deals. We all take it to the bleach and blind Plea or take it to trial when facing her.

Assault is putting somebody in fear of an unlawful touching. Battery is an unlawful touching. This is why you frequently hear the phrase, "assault and battery" - they can be two separate crimes in some states. You're probably saying, that's stupid - how can you have a battery without an assault? Let,s look at it. Dude is angry with Guy, grabs a baseball bat, and stalks after him with the intention of hitting Guy. Guy is obviously in fear of an unlawful touching. Man, Buddy, Friend, and Woman are all standing around at the far end of the bleachers, trying to talk Woman into going out with Man on Saturday night. They are completely unaware of what's going on between Dude and Guy. They aren't even aware of what's going on with the ball game. Guy runs towards the crowd of 4 people, thinking that Dude will calm down and not do anything before witnesses, and those three males - Man, Buddy, and Friend will restrain Dude if necessary. As Guy gets there, he turns, sees Dude load up, and barely jumps away in time - Guy is safe, unharmed.

Man, otoh, with his back to Dude and Guy, takes a shot right to the ribs. Friend and Buddy jump Dude, and Woman calls the police.

Here we have Guy in fear of an unlawful touching. We haveDude intending to unlawfully touch Guy, and that intention is transferred to his actual victim, Man. Man is then the victim of a battery. While assault and battery tend to go hand in hand, they don't always. A battery victim isn't always assaulted. An assault victim isn't always a battery victim.

Just to clarify.

OP I hope you are in contact with NAMI in your area. They are mental health law advocates, many in exactly the position you are in with your son. Many have experienced exactly what you are experiencing. They would be great resources, and if you are interested in changing the law and changing funding for mental health - they are a great place to start.

Listen to the lawyer. Listen to your son. It is his butt that has to do th time.

I'm glad nobody was hurt physically. Hopefully your state has mental health wards in prison should your son decompesate again while in prison.
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