It is not uncommon for our clients to encounter a prosecutor who seems to stop plea bargaining, or plea bargain at all in the face of new information. The prosecutor may not seem to read the police report or, in the case of a DUI for example, to begin and end his or her analysis with only reading the blood alcohol content. The prosecutor may also seem to take a zealous personal interest in punishment of our client that seems inappropriate.

In such unfortunate circumstances, a defendant can plead “in the open” to the judge, allowing the judge to sentence him or her as the judge sees fitting to the facts. Before exercising this option, it is wise to request that the judge indicate the sentence intended by asking for “an indicated sentence,” without accepting it. This way, the defendant knows in advance if it is wiser to accept the prosecutor’s offer instead.

In the appeal of the Santa Clara County Superior Court case of People v. Clancey (2012 DJDAR 329), the prosecutor challenged the judge’s offer to Wesley Clancey as judicial plea bargaining, which is illegal.

California law prohibits a judge from offering a defendant an inducement to plead guilty or no contest by offering a plea bargain that treats the defendant more leniently if he forgoes his constitutional right to trial, or that treats the defendant more harshly if he exercises his right to trial. Judicial plea bargaining, more fundamentally, is prohibited because it places the judge in the position of the prosecutor, rather than the position of a neutral overseer of the process.

In the case at issue, Wesley Clancey was charged with two counts of grand theft (Penal Code