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Criminal Defense Attorneys

What is the Difference Between a Guilty and No Contest Plea?

Quite often in the final stages of ironing out the details of a plea bargain, no time or very little time will be given to explaining the difference between a guilty plea and a no contest plea.  After all, if one is concerned about serving two years in state prison and accepting a plea to an offense that will trigger deportation proceedings and another plea bargain in offered that will avoid such consequences, the attorney and the client are focused more on immigration consequences. 

Likewise, if the case is a sex offense and there are two plea bargains offered, but one will avoid registration under Penal Code § 290, the attorney and client may be discussing 290 registration more than why a no contest plea is advantageous.

Nonetheless, it is important that our client understand the difference between a no contest plea and a guilty plea when a no contest plea is an option.  In Orange County, a no contest plea is generally not allowed, it should be noted.

When our client is truly not guilty and does not want to admit guilt, yet does not want to go to trial, a no contest plea is preferable.  While the judge will advise the client, when the plea is entered, that a no contest plea has the same legal effect as a guilty plea, there are some advantages to a no contest plea over a guilty plea, such as:
  1. In a misdemeanor case, a no contest plea cannot be used in a parallel civil proceeding to establish civil liability (i.e. negligence).  Penal Code § 1016(3).  However, a no contest plea to a felony offense is admissible as an admission in a civil case arising out of the conduct at issue in the criminal case.  Id.  The principles of collateral estoppel apply in such a felony case.  See Pease v. Pease (1988) 201 Cal.App.3d 29.  When the case is a “wobbler,” i.e. Penal Code § 273.5 (domestic violence), a no contest plea to a misdemeanor 273.5 can then be used in a civil case arising out of the same conduct, so it is preferable, if one foresees such a civil case, to try to resolve the domestic violence matter instead for a violation of Penal Code § 243(e)(1).  See Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601 (if defendant convicted at trial of a misdemeanor, that conviction can be used in civil case to establish liability).
  2. A no contest plea can be followed with certain stipulations of defense counsel and the prosecutor on the record that explain the plea was entered into without any admission or factual basis that defendant committed certain specific conduct that may subject him or her to a probation violation in another case, professional licensing consequences or immigration consequences.  In this regard, it is wise for counsel to be familiar with his or her duties under Padilla v. Kentucky (2010) 559 U.S. 356, 359, 130 S. Ct. 1473 and Penal Code § 1016(3) concerning immigration consequences.
  3. The person who enters a no contest plea may be seen as cooperating in the legal process without admitting guilt, i.e. to avoid a time-consuming and often difficult trial that could “tie up” court staff and court resources for days, weeks or months, even sometimes leading to a mistrial or acquittal, which a judge may view as a great waste of time and money.  A defendant entering a no contest plea can be seen as “helping” the judge avoid such a frustrating exercise and allowing the judge to give time to other cases that need his or her attention.
It should be understood that generally speaking, a prosecutor must agree to a no contest plea when defendant is pleading to just one of several charges.  Without the prosecutor’s approval, defendant must plea guilty instead.  Likewise, no consent is required from the prosecutor if defendant wants to plea guilty to all charges, but the judge must so approve.  Penal Code § 1016(3); People v. Hughes (1980) 112 Cal.App.3d 452, 460; People v. Superior Court (Smith) (1978) 82 Cal.App.3d 909, 915.  

For more information about plea bargaining, please click on the following articles:

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