DA’s Attempt to Pull Plea Deal Overruled by Judge

iceHumberto Morales was arrested in Davis last year.  He was stopped at 7:45 am by the Davis Police Department who found car stereos and CD players with wires sticking out of them in his vehicle.

Within an hour the police department was able to locate a victim whose car had been burglarized.  Within Mr. Morales’ vehicle was a number of stolen items.

He was arrested and charged with six counts, including two felonies for burglary and possession of stolen property, three misdemeanors, and a violation of probation.

There was a plea offer put on the table that he was willing to plead to.  He would plead to the second degree burglary and receive a “no state prison” term (NSP).

This is where the story gets a bit odd.  Mr. Morales had an ICE hold put on him by immigration.  So whatever disposition happened in this case, following that, he would be deported to Mexico.

Based on that, Judge Mock told the attorneys that he would impose a one week probation on him, long enough to get the paperwork in order, and then he would immediately be deported.

In light of this information, Deputy DA Tokhi, the prosecutor in charge of this case, was overruled by his supervisor Steve Mount.  Mr. Mount stipulated to Mr. Tokhi that if that were the ruling by Judge Mock, he needed to plead to the sheet (meaning the entire six charges) if Judge Mock were to impose anything less than standard terms.

According to Deputy Public Defender Emily Fisher, the deputy district attorneys are always saying that even when plea agreements are reached, the judgment and sentence are up to the judge.

DDA Tokhi objected, and attempted to withdraw the offer because Judge Mock only put the defendant on one week’s probation and the District Attorney’s Office never agreed to that.

However, Judge Mock overruled their objection and refused to allow the DA’s Office to withdraw the plea agreement.

He argued that, in light of overcrowded jails and the fact that the defendant was immediately going to be deported, it made no sense to have a three-year standard probation term that would force the defendant to be held in jail until his time expired.

The entire case was odd.  Given that it was a probation case from the start, it made little sense to attempt to hold the defendant in jail, due to his immigration status.  It was far more expeditious and fiscally prudent to simply allow him to be deported back to Mexico.

There seems to be a growing detachment between the DA’s Office and the fiscal reality facing the state.  On the one hand, the DA’s Office and DA Jeff Reisig have lamented cuts to county funding, and warned that they would have no budget to pursue minor crimes.

But in a number of instances, their own policies seem in contradiction to this reality.  We have witnessed numerous small quantity meth possession cases that have actually gone to trial, at taxpayer expense through incarceration, attorney fees, court costs and treatment.

We have seen the DA’s Office retry cases it has very little chance of prevailing on.

And we see the DA’s Office pursuing enhancements in cases that are life sentences anyway.  All of this adds up to money that could be spent in other areas.

This is just the most recent, and perhaps petty, example.  Because they could not get a standard term probation, they were going to throw out a plea agreement, force a case potentially to trial (that would have been a sure win, but at the cost of two court days plus staff time), and then look to incarcerate a guy who was going to be deported immediately anyway.

Fortunately, in this case Judge Mock stepped in and put a stop this.  But it is time for taxpayers to start questioning our charging practices, in a month that saw ten Sheriff’s Deputies laid off.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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10 thoughts on “DA’s Attempt to Pull Plea Deal Overruled by Judge”

  1. Fight Against Injustice

    I would think that the judges would start to get upset with some of the practices of the DA’s office that have come out in the past year.

    1. Crowding the court schedules with cases that are too weak to win or retrying cases with little chance of prevailing.
    2. Trying the wrong person because there was not enough investigation done.
    3. Overcharging on some cases so the judge’s have no say on the punishment–like making a misdemeanor into a felony so it adds a third strike.
    4. Trying to incarcerate the person in the case cited above who would be deported anyway.

    I agree with David–I hope taxpayers see how the policies of the DA’s office drives up the costs. Adjusting the charging practices, investigating cases more thoroughly before going to trial, and only pursuing cases to trial that have a chance of winning, would go a long way in saving taxpayers’ money and help to unclutter both the jails and the court calendar. If the DA is complaining about the lack of funds, he can make these adjustments to his policies and save money. And of course, all of this would help stop some of the injustice people have complained about.

  2. jonlancaster

    The DA is an elected office. So some of the behavior is to show a “tough on crime” stance to the people who vote.

    And possibly, some of the grants the DA’s office receives for drug enforcement and other special case types comes from the state and so it may make sense for the DA’s office to over-prosecute those types of cases that count towards convictions which will generate grants.

    Judge Mock’s decision may be a good one. But maybe not.

    I’ve read in numerous places that many of the people who are deported back to Mexico come back across the border and do it quickly. So who’s to say this guy won’t be back in Davis stealing stereos a few weeks after he’s deported.

    There’s no easy answer or solution. All of the counties in the state spend lots of money prosecuting and incarcerating people who are here illegally.

    Is paying the cost of putting him in jail for 3 years cheaper than the cost of the crimes he committed. Obviously not…

  3. jonlancaster

    David as I understand things, the Judge does not have to abide by any plea bargain arrangements made between the DA and the defense attorney.

    Typically the judges do go along and maybe only when they are in the loop and maybe not? I really would love to know what the real truth is in this area!

  4. David M. Greenwald

    Since Pat told me I could quote her, I will throw this out there from Pat Lenzi, former Deputy DA in Yolo County who ran against Reisig in 2006:

    [quote]I think Judge Mock was wrong. What a plea deal is – is an agreement between the parties. If the judge disagrees with the deal, then the parties are free to start again. So the judge may disagree with the deal, as the PD you quoted said, but that means only that the deal the parties agreed to is off.

    A plea deal is a contract. Standard contract law is “offer, plus agreement, plus consideration = contract”. So the DA makes an offer to resolve a case, and the defendant agrees to the term, and each side gives SOME consideration ( a legal term meaning each side gives up something of value) then there is a deal. So here, the offer from DA was “plead to x and we will drop certain charges and agree that you will be on probation; in exchange, you (defendant) will be convicted of those charges and be placed on probation but not go to prison.”

    The judge, on his own, added a term the parties did not agree to – lower the amount of probation to one week. The parties did not include the AMOUNT of time on probation in the deal. On one hand that could be argued that th ejudge can do that and not undo the deal since it was only agreed there would be probation but not how much probation. On the other hand, the amount of probation is usually a standard amount for a certain level of crime in every felony or misdemeanor case so it is presumed it will be that amount.

    When I make a plea agreement, I agree to drop certain charges in exchange for a particular sentence and certain charges being imposed. The amount of time on probation tends to be pretty standard – it is in the Penal Code (3 years for misdos and up to 5 for felonies and often just 3 years, but usually the local courts and DA and PD work out what a standard term of probation is for defendants in that jurisdiction).

    If the judge undercuts the DA on any part of the deal, or increases the sentence in any way and therefore negatively affects the defendant, that is a new part of the deal and the parties are then free to start over. Hence, Mount said – “Go ahead judge, you can set the sentence and probation terms any way you want because you have the authority to sentence a case. However in this case we made an offer and gave consideration to the defendant for the specific agreement we entered with him. If you as judge sentenced according to that deal, then there was a contract that was fulfilled by the parties. Your new offer of lowered amount of probation is an amendment to the contract we entered with the Defendant. If we as the DA agree with the change and the offer you made as judge, then we have given consideration to the amended contract you created by changing the amount of time on probation. So far, your offer has not given us any consideration in exchange for the amended plea deal offered by you. Since there has been no consideration given on the part of the DA for your amended contract offer, it is not a contract with us if we refuse to accept the change. We refuse. As a result, the defendant must plead to all charges to get that deal from you. We do not have the authority to set the sentence or terms of the probation/sentence if defendant pleads to the sheet (all charges).”

    As for a logical reason to have a person who will be deported to Mexico on probation for 3 years – he will probably be back in the USA. Probation lasting 3 years, even if he is deported for part of it, remains in effect and can be imposed if he comes back. So, if he pled to a set of charges that left him with possibly 5 years in prison but he was given 180 days in jail and probation at the outset, and he got deported and returned illegally in two years, he could be sentenced to up to 4 ad 1/2 years in prison just for the probation violation of “obey all laws.” It is a much lower standard and saves $$ because a whole new set of charges is not filed so there is less of a burden on the courts, etc.

    At any rate, I do not know under what authority Judge Mock thought he could amend a contract singlehandedly and force parties to agree to it. He could get flipped on appeal if the DA seeks an appeal on this.[/quote]

  5. jonlancaster

    Here’s a question for Pat Lenzi and/or David,

    Using Pat’s logic about a contract, consideration, etc., my question is whether the judge is a third party to the contract.

    If the contract (plea bargain) is a two party deal between the DA and the defendant, then Pat’s logic makes perfect sense.

    But if the contract (plea bargain) is really a three party deal between the Judge, DA and defendant, then the DA and defendant didn’t include all parties in the negotiation…

  6. E Roberts Musser

    According to JRank, “In the U.S., judges can overturn a plea agreement and these deals are only seen as advice from the prosection”

    According to FindLaw, “More often than not, a judge goes with the plea bargain struck between the prosecution and defense. Plea bargains keep calendars moving and prevent nonviolent offenders, such as marijuana offenders, from entering already crowded prisons.

    According to LexisOne, “The U.S. Justice Dept. gives judges rough guidelines to follow in a plea bargain deal. If the judge finds the plea gives the offender an unreasonably light sentence, he should overturn the pleas.”

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