The California Supreme Court should grant review of this case.
At first glance, it might appear to be a purely fact-bound issue. Did the trial court here merely "indicate a plea," as California law permits, or did it instead engage in impermissible "judicial plea bargaining." The majority and the dissent have different takes on this issue.
But the conflicting opinions reflect fundamentally divergent views on the proper role of the judiciary in criminal plea agreements. And give the prevalence of plea bargains in criminal cases, as well as the increasing involvement of the judiciary in this practice, this is a critical issue upon which the California Supreme Court should express an opinion.
Certain facets are common ground. It's permissible for a trial judge to "indicate" a sentence in a given case. So, for example, if a trial judge says: "Just so you know, my current thought is that I'm going to give you five years," that's okay. That might persuade a defendant to plead guilty (if he's happy with five years). But that doesn't coerce a plea, so is fine.
On the other hand, a judge can't get down and dirty into the plea negotiation process, by making back and forth offers, pushing one side or the other to compromise, etc. That both risks coercing a plea as well as may diminish the neutrality of the court as well as harm the trial judge's ability to impartially evaluate any final plea agreement (which the court ultimately has to approve).
The critical question here -- and the one that I believe is centrally presented by the case -- is whether a trial court can make an "indicated sentence" conditional on a guilty plea. In other words, we all agree that a judge can say "I'm thinking about giving you five years, regardless of whether you're convicted at trial or whether you plead guilty." But can a judge say "I'm going to give you five years only if you plead guilty; if you go to trial, you take your chances."
The majority says, nope, you can't do that. Justice Mihara makes a decent argument as to why that should be impermissible. It sounds somewhat like the type of "bargaining" -- a give-and-take -- that's not allowed. It might coerce a guilty plea. You could see why we might well want the judiciary to be more neutral than this; to be an objective, outside observer of the plea bargaining process rather than a participant. Those are potentially winning arguments, and you could see why a system might well adopt them.
But Judge Lucero doesn't agree. She's sitting by designation from Santa Clara. And, perhaps because she's a trial judge, she has a substantially different take. She says that telling a defendant what you'll do for them if they plead guilty does not "coerce" a plea, but rather simply gives them a choice. And doesn't detract from a judge's ability to evaluate a plea because he or she is merely telling the parties in advance a given sentence that she not only would approve, but be willing to enter if the defendant "pleads to the sheet". It's okay for a defendant to do so, and for a judge to indicate a sentence. Why can't that indicated sentence be good only if the defendant pleads guilty, rather than forces a trial?
These, too, are decent arguments. So both sides have tolerable points. It's a close issue worthy of being taken up at a higher appellate level.
More importantly, this is a critical issue. As both the majority and the dissent recognize, as caseloads become heavier, more and more courts are adopting formal policies in which the trial court is more actively involved in the negotiation of pleas. This case is a perfect example. There's an express "Early Resolution Calendar" in Santa Clara that led to the bargain here. Judges are trying to settle cases. If this process is permissible, it validates what these and other courts are doing, and approval would advance these regimes. By contrast, if this process is impermissible, it's important to put a stop to it now. Because it's pervasive already and likely to get even more so as the judicial budget crunch continues apace.
Where you come out on this debate largely revolves, in my view, about whether you think it's permissible for judges to take systemic interests into account in resolving plea deals. One view is that judges should be pure outsiders. Neutrals. The federal system largely adopts this approach. No active involvement in pleas. We approve plea deals, but don't negotiate them, and simply decide whether they're fair. Any contract is purely up to the parties to negotiate, with the People representing society, the defendant representing the individual interests, and the judge deciding only fairness. That's attractive on many different levels.
On the other hand, judges do represent social interests. In particular, the interest in systemic efficiency; e.g., the need to avoid resource drains and resolve cases without a trial. Judges protect that interest when they decide whether or not to approve deals. Why can't they do that in advance? Even when the People think that a trial best serves the interest of justice, isn't it a permissible role for a neutral judge to say, no, you're undervaluing the benefits of informal resolution. We should get this case resolved, and just like I'm allowed in sentencing to reduce defendant's sentence for acceptance of responsibility, I can do exactly the same thing in response to his or her decision not to impose the costs of a trial upon society. And since I can do that at the final stages, I can tell them that in advance. That's a permissible part of "indicating" a sentence.
Personally, I find both of these competing positions to have a fair degree of merit. On the one hand, in the area with which I'm personally most familiar (civil cases), I like the federal system better. No trial judge involvement in settlement negotiations. No having the judge who's going to hear your summary judgment motion telling you what you should offer. Too much of a risk that, if you disagree, and refuse to make the suggested offer, the judge might consciously or unconsciously retaliate when deciding the motion. Similar dynamics may well apply in criminal cases, thereby supporting a similar rule.
But, at the same time, the criminal caseload is crushingly burdensome. Trial judges can -- and do -- play a role in reducing them. Sure, some cases might be resolved by a trial judge saying "I'm going to give you five years either way." But a lot more would be resolved were the trial court permitted to grant the defendant a benefit by pleading to the sheet. Otherwise why not simply say: "Thanks, judge. I'll take the five. And will play the lottery at trial as well to see if I can get zero."
I can't make the call about which of these positions should be the policy of California. Nor should a panel on the Court of Appeal. This is something that should be decided, once and for all, by the California Supreme Court. Different states go different ways. Our highest tribunal should decide which of these competing views accurately reflects the policy of our state.
So I don't have unconflicted feelings about the merits. But I nonetheless strongly believe that this is a case in which review by the California Supreme Court is both warranted and exceptionally important.
