When Can the Prosecutor Refuse to Plea Bargain a Sentence?
In some more serious cases, we encounter a prosecutor who will refuse to plea bargain. Our client and his or her family sometimes takes this very personally, as if the prosecutor “has it out for you” or is mean.
The Reader’s Digest Version: If a prosecutor refuses to plea bargain at all, it may be because the prosecutor is a jerk. It may also be because in certain types of cases, including after certain stages of the case, plea bargaining is prohibited by statute.
Under Penal Code § 1192.7, plea bargaining is actually prohibited in certain types of cases after the preliminary hearing, so on an information (the complaint after the preliminary hearing). Plea bargaining is also prohibited under 1192.7 on an indictment by a grand jury for certain types of cases. Please note that 1192.7 does not prohibit plea bargaining prior to the preliminary hearing, so if a prosecutor refuses to plea bargain prior to the preliminary hearing, then he or she truly may be “out for you” or just very young and unsure what to do.
Under 1192.7(b), plea bargaining is defined as any bargaining, negotiation or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere (no contest), in exchange for any promise, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or the sentencing of the defendant.
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The types of cases wherein plea bargaining is prohibited, with certain exceptions, after the preliminary hearing or after an indictment are:
1. Violent sex offenses listed in Penal Code § 667.61(c) that could be prosecuted under
a. Penal Code § 269 (rape, sexual penetration, sodomy or oral copulation of a child under 14 years of age);
b. § 288.7 (any person 18 years or older who engages in sexual intercourse, sodomy, oral copulation or sexual penetration of a child (under age 18) at least 10 years or more younger that that person);
c. §§ 667(b) to (i) (anyone with a prior serious or violent felony conviction, which includes:
i. A sexually violent offense as listed under Welfare and Institutions Code § 6600(b), which are defined as certain sex offenses when committed by the use of force, threat of force or violence, duress, menace, fear of immediate bodily harm by the victim or to another person, or threat of immediate harm in the future. Such sex offenses include Penal Code §§ 261 (rape by force or threat of harm), 262 (spousal rape), 264.1 (rape or penetration of oral or anal areas by a foreign object), 269 (rape, sodomy, oral copulation or sexual penetration of a victim under 14 years old), 286 (sodomy), 287 (oral copulation), 288 (lewd or lascivious act upon a person under age 14), 288.5 (continuous sexual abuse of a minor, defined as three or more acts of such abuse), or 289 (forcible sexual penetration with a foreign object) or any violent felony under Penal Code §§ 207 (kidnapping), 209 (aggravated kidnapping for ransom) or 220 (assault with intent to commit a sexual offense) committed with the intent to commit one of the certain sex offenses listed above; or
d. Penal Code § 667.71 (the person is a habitual sexual offender), meaning the person has been convicted one or more times of the above-listed sex offenses;
2. Felony driving under the influence of alcohol or drugs (this is allowed under Penal Code § 1192.7(a)(2))
3. Felonies in which defendant personally used a firearm (this is allowed under Penal Code § 1192.7(a)(2)); or
4. Serious felonies as listed under Penal Code § 1192.7(c) (these include (1) murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person; (6) lewd or lascivious act on a child under 14 years of age; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a non-inmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem; (17) exploding a destructive device or any explosive with intent to murder; (18) any burglary of the first degree; (19) robbery or bank robbery; (20) kidnapping; (21) holding of a hostage by a person confined in a state prison; (22) attempt to commit a felony punishable by death or imprisonment in the state prison for life; (23) any felony in which the defendant personally used a dangerous or deadly weapon; (24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug; (25) any violation of subdivision (a) of Section 289 (forcible sexual penetration with a foreign object) where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; (26) grand theft involving a firearm; (27) carjacking; (28) any felony offense, which would also constitute a felony violation of Section 186.22 (gang crime) ; (2 9 ) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220 (assault with intent to commit a sex crime) ; (30) throwing acid or flammable substances, in violation of Section 244 ; (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245 ; (32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Section 245.2 , 245.3 , or 245.5 ; (33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246; (34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1; (35) continuous sexual abuse of a child, in violation of Section 288.5; (36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 26100 ; (37) intimidation of victims or witnesses, in violation of Section 136.1 ; (38) criminal threats, in violation of Section 422 ; (39) any attempt to commit a crime listed in this subdivision other than an assault; (40) any violation of Section 12022.53; (41) a violation of subdivision (b) or (c) of Section 11418 ; and (42) any conspiracy to commit an offense described in this subdivision.
For more information about plea bargaining, please click on the following articles:
- Effective Strategies for Successful Plea Bargaining
- Plea Bargaining by the Judge Is Illegal – Not an Indicated Sentence
- May a Plea Bargain Be Rescinded Based on Overlooking Facts?