Posted on 2013 July 8 at 08:54 by Aaron J. Sussman.
A plea deal is, in effect, a contract between a defendant and the prosecution, wherein the defendant agrees to plead guilty (or no lo contendre) and the prosecution agrees upon a suggested maximum sentence. But what if, after a plea deal, the law is changed to automatically impose certain terms upon persons convicted of such crimes? The Calfornia Supreme Court addressed the issue in a recent decision, John Doe v. Kamala D. Harris. Click below for more details.
In 1991, the defendant pled no contest to one count of lewd and lascivious acts upon a child under the ago of 14. The plea agreement noted that the maximum penalties would be those existing at the time, citing the then-applicable statutory sections, California Penal Code Section 290.2 and 290, which required sex offender registration but forbade the government from disclosing any statements, photographs, or fingerprints of any sex offender in relation to the sex offender program. Subsequently, the California legislature adopted “Megan’s law,” which, among other provisions, permits the public to obtain names, addresses, and photographs of the state’s registered sex offenders; the law itself states that it is to apply to all sex offenders, even those convicted and sentenced prior to its enactment. The defendant filed a civil suit in federal court arguing that, by requiring that the defendant cooperate with the new Megan’s Law provisions, the state was breaching its plea deal. The federal district court agreed and barred its application to the defendant, but, on appeal, the federal appeals court redirected the question to the California Supreme Court, noting that the action presented an unsettled question of California law – whether parties bargaining a plea deal are implied to incorporate then-governing law – that could determine the case’s outcome.
A negotiated plea agreement is a form of contract and is interpreted according to general contract principles. (People v. Segura (2008) 4 Cal.4th 921, 930.) When a change in law is not intended to apply retroactively, contractual agreements made prior to that change in law shall not be affected; in other words, contracts generally incorporate existing law. (Swenson v. File (1970) 3 Cal.3d 389.) However, when a change in law is intended to apply retroactively, contracts entered into prior to that change in law – especially contracts infused with public interest such as plea deals – shall be affected by that subsequent change in law; “such contract or transaction is deemed to incorporate and contemplate not only the existing law but the reserve power to the state to amend the law or enact additional laws for the public good and in pursuance of public policy….” (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) Thus, unless found to be a term to the plea deal, courts shall not imply as a term of a plea deal that the then-existing law should govern future proceedings. (Compare People v. Acuna (2000) 77 Cal.App.4th 1056 (defendant could not benefit from post-probation expungement option available at time of sentencing because the law had been changed rendering such option unavailable and availability of dismissal was not an express term of the plea deal) with People v. Arata (2007) 151 Cal.App.4th 778 (defendant could rely upon post-probation expungement, even though the law had been changed rendering such option unavailable, because availability of expungement was found to be a part of the parties’ understanding and had provided a significant inducement for the plea.)
The Court held that, without an express or strongly implied statement in the plea deal that subsequent changes in law would not affect the given sentence, such a term shall not be implied. Here are some excerpts from the decision:
“Plea agreements are deemed to incorporate the reserve power of the state to amend the law or enact additional laws or the public good and in pursuance of public policy. As an adjunct to that rule, and consistent with established law holding that silence regarding a statutory consequence of a conviction does not generally translate into an implied promise the consequence will not attach, prosecutorial and judicial silence on the possibility the Legislature might amend a statutory consequence of a conviction should not ordinarily be interpreted to be an implied promise that the defendant will not be subject to the amended law… In sum, the rule in California is that a plea agreement’s reference to a statutory consequence attending a conviction, even when coupled with prosecutorial and judicial silence on the possibility the Legislature might amend the statute, does not give rise to an implied promise that the defendant, by pleading guilty or nolo contendre, will be unaffected by a change in the law.”
P.S. One might wonder whether this type of a decision would permit courts to re-sentence a defendant more harshly under a newly enacted sentencing law. Generally, this would be barred by the U.S. and California Constitutions’ bar on “ex post facto” laws (i.e., prohibiting the retroactive application of criminal law, meaning that a defendant may only be convicted and sentenced based upon the criminal law existing at the time that the crime was committed). The only reason that this issue arose in this context is that the California Supreme Court held, in Castellanos, that the Megan’s Law’s requirement that a person register as a sex offender “does not constitute punishment for purposes of ex post facto analysis.” (People v. Castellanos (1999) 88 Cal.Rptr.2d 346, 347.)