Possible Revocation of Defendant’s Plea Deal after Court Confuses Misdemeanor and Felony Probation

By Ankita Joshi

ALAMEDA, CA – It all comes down to a do-over in Alameda County Superior Court Monday, after defendant Kevin Lagarde, here for a probation revocation hearing, took a plea deal only to find the court and prosecution confused his felony probation with misdemeanor probation.

At a previous plea hearing, Judge Kevin Murphy had erroneously believed Lagarde was on misdemeanor probation, which had influenced the plea deal Lagarde had taken, because Deputy District Attorney Allyson Donovan had agreed to strike a misdemeanor probation.

Lagarde is charged with multiple felony charges of domestic violence, assault, assault with a weapon, larceny, criminal threat, attempted murder, and an offense involving controlled substances after a physical confrontation with his ex-girlfriend where he allegedly brandished a crowbar and damaged her car.

The revocation of probation hearing began by outlining that Lagarde was on parole for post-release community supervision in another docket when he appeared in court for his plea hearing.

Notice of the miscommunication was revealed when the probation department wanted to extend the supervision of parole due to the domestic violence classification of the incident. However, the court was under the impression that Lagarde was only serving a misdemeanor probation.

Judge Murphy noted, “At the time of Mr. Largarde’s plea, based on information I had in front of me … it was my belief that that probation was a misdemeanor probation for vandalism, but it turned out that that was a felony probation for vandalism.”

As a result of this confusion, the terms of the plea deal Lagarde had taken were subject to review.

Both the defense and the prosecution deliberated for a while over whether the statements made during the plea hearing should be held or if they should be struck.

The deliberation also included the inclusion of a new case law which was passed last month, and added to the confusion on how the court should move forward with the domestic violence classification.

“I think what was said during the plea agreement is moot because I think what should happen to the transcript is covered by AD1950,” added Judge Murphy.

DDA Donovan interjected at this point and explained her understanding of Lagarde’s charges, noting, “This is a broken down domestic violence case … so I do not believe he is entitled. I believe AD1950 does not apply.”

She also said she had “never made any agreement to terminate a felony probation” during the plea hearing. She admitted to agreeing to terminate a misdemeanor probation, but had been busy with a trial that day and was not able to confirm whether Lagarde was on misdemeanor or felony probation.

At this Lagarde exclaimed, “I would have never took this deal!” twice before quieting down.

DDA Donovan addressed the court when she responded and stated that she is happy to remove the offered plea deal and set a preliminary hearing date.

Judge Murphy warned Lagarde that if he chose to take that option he would not be released from custody.

The hearing ended with both the prosecution and defense agreeing to meet Thursday after taking some time to review the new case law and deciding how it would apply to Lagarde’s case.

Lagarde had another outburst, stating he thought he was going to get out that day. Judge Murphy diffused the situation by asking Lagarde to discuss his next steps with his attorney.

About The Author

Ankita Joshi is a second-year student at the University of San Francisco, pursuing a major in International Studies and a minor in Political Science. She is originally from Sacramento, CA.

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