The Importance of Contract Law in Plea Agreements 

For many attorneys that practice in criminal law, contract law is a distant and haunting memory. While certainly pragmatic, for those of us that wished to be in court everyday, contract law represented the antithesis of becoming trial attorneys.

But when it comes to plea agreements, knowing the fundamental principles of contracts is necessary to protect a client’s interests and to avoid potential chaos in the resolution of a case.

Let’s start with a hypothetical: client agrees to plead guilty to a felony and stipulates to 180 days of custody. The “agreement with the prosecutor” section of the change of plea form reads: “dismiss balance, stipulate to 180 days of custody.”
During the negotiations stage with the prosecutor, defense counsel proposes that the prosecutor agree to alternatives to custody (such as “house arrest” or work furlough). The prosecutor says that he is unwilling to agree because he believes client deserves to sit in jail.

At sentencing, defense counsel argues for alternatives. The court inquires about what was discussed between the parties because the court’s notes do not make mention of alternatives during the readiness conferences/ felony disposition conferences. The prosecutor states that his practice is to specifically write “no objection to alternatives” in appropriate cases, and thus, the court should not permit alternatives. Defense counsel argues that the manner in which custody is served is up to the court, and in the absence of a specific agreement stating that defense counsel will not request alternatives, such argument would not be in violation of the plea agreement. So who is right?

“A negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.] The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citation.] If contractual language is clear and explicit, it governs. [Citation.]‘ (People v. Shelton (2006) 37 Cal.4th 759, 767.) ―[C]ourts should look first to the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, the courts should seek to carry out the parties‘ reasonable expectations. [Citations.] (People v. Nguyen (1993) 13 Cal.App.4th 114, 120, fn. omitted.)”

The language of the “contract” in the hypothetical is clear, so the next step is for the court to ascertain the intent of the parties when it comes to the stipulated “custody.” The argument made by defense counsel was that since the form of custody is within the court’s discretion, absent an agreement to the contrary, the court retains the power to decide. The prosecutor, in making an offer, should be specific if he wants the court to lack the authority to decide the form of custody.

Of course, defense counsel will also need to make a strategic call in determining how specific language should be within a plea due to other factors such as immigration consequences.

Before brokering a complicated deal, remember that it may be worthwhile reading over some contracts principles to avoid the danger of the prosecutor claiming the plea bargain was violated. So dust off those law school outlines and get to reading.

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