Safe Havens

(A)  Significance of Factual Basis.  One factor that affects the ease with which court and prosecutor will accept an alternative “safe haven” disposition, in place of a plea to the offense charged, is the extent to which there exists a factual basis for a plea to the new preferred offense.  Sometimes a safe haven will be found among the charged offenses.  In this case, there is seldom any problem with a factual basis, since the prosecution obviously felt there was a factual basis for that charge.  Some prosecutors and courts will feel increasing reluctance to allow a plea to an offense with a more tenuous factual basis, as the safe haven moves farther and farther away from the facts of the charged offenses.

Some states require a factual basis before a plea will be allowed to an offense.  For example, in People v. Holmes, the California Supreme Court held that in order to comply with a state statute, the court must establish a “factual basis” for a guilty plea, either by (a) requiring the defendant to describe the conduct that gave rise to the charge; (b) questioning the defendant regarding the factual basis described in the complaint or written plea agreement, or (c) obtaining a stipulation “to a particular document that provides an adequate factual basis, such as a compliant, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.”  The court explicitly stated that “a bare statement by the judge that a factual basis exists, without the above inquiry, is inadequate.”[77]

Some prosecutors will require a factual basis before agreeing to a safe haven disposition different from the charged offenses and lesser included offenses.  In federal court, it is often quite difficult to persuade a court to allow a plea to an offense unless a factual basis can be shown that the defendant is guilty of the offense.

[77] People v. Holmes, 32 Cal.4th 432, 436, 9 Cal.Rptr.3d 678 (2004) (internal citations omitted; emphasis added).