Criminal Defense of Immigrants


§ 5.28 (G)

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(G)  Factual Basis for Plea. 


                (1)  Significance of Factual Basis.  The extent to which there exists a factual basis for a plea to the new preferred offense will affect the ease with which court and prosecutor will accept an alternative “safe haven” disposition, in place of a plea to the offense charged.  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.”[47]


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 there exists a factual basis that shows that the defendant is guilty of the offense.[48]


(2)  Legal Basis for Plea to Offense Unrelated to Facts of the Case.  It is lawful, however, for a defendant to enter a plea to an offense even though s/he maintains s/he is factually innocent of the offense.  The law allows him or her to make a tactical decision that accepting a plea bargain will be in his or her interests, as opposed to taking the case to trial.  The client may make this tactical decision to avoid worse consequences (criminal or immigration) if the case is fought and lost.  The client can simply enter a plea of guilty in state court pursuant to judicial decisions[49] without admitting actual guilt.  Thus, the parties can agree, with the court’s permission, that the defendant enter a plea to any mutually acceptable offense, even if it is factually unrelated to the charges or the defendant’s conduct, and thus avoid adverse immigration consequences.  Under federal law, the same procedure is technically permissible,[50] although many district judges resist or refuse to accept a plea where the defendant maintains innocence.  In general, the more closely related the negotiated offense is to the offense committed, the easier it is to convince the prosecution and court to accept the disposition.

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

[48] See N. Tooby, Post-conviction relief for immigrants § 6.38 (2004).

[49] E.g., People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385 (1970).

[50] North Carolina v. Alford, 400 U.S. 25 (1970).