Criminal Defense of Immigrants


§ 8.11 (D)

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(D)  Factual Basis of the Plea. 


                (1)  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 can 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 courts require that a factual basis be established before a guilty plea can be entered.[26]  Some state courts satisfy this requirement by means of a simple stipulation that there exists a factual basis for the plea, without specifying what it is, that is entered into by defense counsel and the prosecution.  Others, such as California, require that the source of the factual basis be identified, such as an offense report, preliminary hearing transcript, and the like.[27]  This requirement is particularly common in federal court.  The strength of the factual basis for the plea will affect the willingness of court and prosecution to agree to a particular plea.  See § 8.65, infra. 


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.


(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.  See § 8.59, infra.  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, even though s/he believes s/he is innocent of the charges.  The client may make this tactical decision to avoid suffering worse criminal or immigration consequences if the case is fought and lost.  Pursuant to judicial decisions,[28] the client can simply enter a plea of guilty 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, although some 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 prosecution and court to accept the disposition.

[26] D. Rossman, Criminal Law Advocacy: Guilty Pleas, Chapter 4, pp. 4-1 ff. (1983).

[27] People v. Holmes, 32 Cal.4th 432 (2004).

[28] People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385 (1970); North Carolina v. Alford, 400 U.S. 25 (1970).