I was recently informed that the California Supreme Court may take up the issue of “indicated sentences.”

Many of us defense attorneys have become accustomed to the practice of indicated sentences.  This is the practice where DA and defense counsel inform the pre-trial Judge about the alleged facts of a certain case, as well as any evidentiary issues. After considering the Defendant’s record,  the Judge then states a sentence that they think is fair given the information they have received.  Defense counsel then re-communicates the DA’s offer to the client, and what the Judge would sentence the client to if he or she were to accept the DA’s offer.  The client would then have to make a decision : whether to settle or fight.  This practice has become a very useful tool in settling cases where clients would rather not go to trial.  This in turn opens up the trial courts for cases that rightfully should be in the trial courts.  Indicated sentences are especially useful here in the valley, where dockets are huge and there is a shortage of state funding.

There is an alarming trend where Judges now refuse to give indicated sentences.  This is due to recent cases where Judges were accused of taking part of plea bargains in appeals, and plea bargains reversed, where the Judge gave a so-called “indicated sentence”.   Many places have always been that way (Los Angeles).  Many others are slowly becoming that way (Fresno).  Los Angeles usually receives more funding for their court system, and this may be a feasible system for them.  However, I fear that Fresno (as well as the rest of the valley) will suffer with even larger dockets, which equates to more wasted to tax payer money, if the courts stop giving indicated sentences.

First, many of those recent cases have pretty ugly facts.  Either defense counsel acted questionably in procuring the indicated sentence, or it was the court that did so in giving one.

It also seems like a matter of semantics.  If the High Court rules that “indicated sentences” are improper at all times, all I would really need to do is re-phrase the question and ask the Judge what he or she thinks is a fair sentence.  In other words,  I would quit using the word “indicated” and just ask the Judge what they thought was fair.  We all know its not as if Judges would not bust their own plea bargains after reading an unsatisfactory Probation Report if something came up that they didn’t initially know about.

Finally, given California’s fiscal crisis, do we need more rulings from the Supreme Court that seem to be undoing any reform that AB109 and other laws try to enable to ease prison overcrowding and attempts to use our tax payer money wisely?

I am not saying one way is better than the other.  What I am basically proposing is that Judges be able to choose how they run their court rooms.  Seems like that’s what they will do anyway.