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  1. #1
    Join Date
    Aug 2010
    Posts
    2

    Default Plea Still Stand with Unknown Strikes

    My question involves criminal law for the state of: California

    Hello,

    My friend has two felony strikes. The first was for felony assault and terrorist threats when he got in a fight with his step dad. The second was for felony DUI accident with injury . Knowing that, his girlfriend would threaten him that "she could send him away for a long time" when they would argue or if he said he was going to leave her. It finally happened. She disappeared for 3 days after an argument. He packed her stuff and told her to move when she returned. The next day he was arrested for felony corperal domestic violence and terrorist threats. Apparently she hit herself and then filed a police report (something her daughter had said she had done before). He swears up and down that he did not do it. The scary thing is with two strikes, if he goes to jury and they believe her, he could would get 25 to life.

    In working with the public defender, the pubd said that he did not have any strikes. We called with his pubd and assured him he did. He said again he didn't. He said there were two prior felonies but no strikes. On the day of the preliminary hearing my friend spoke with his pubd again just before the hearing. He told the pubd some details about times and documents where he had seen he had 2 strikes. So the pubd then believed him but then urged him to take the plea before it came out in court. He said that as long as the 2 prior strikes were not brought up before his sentencing (22 days from now), his plea bargin would stand. His plea would basically give him his 1st strike (because they do not realize he already had 2 prior), and a sentence of 1 year. So that is what he did. He plead no contest.

    So here's my questions. If they find the strikes, since he plead "No contest" and accepted the stike today, could that then be called his third stirke? Or would they say that the plea was invalid because they could not offer him 1 strike and 1 year? What if they find the prior stikes while he is doing his time in jail? Can they change it to 25 years? Also when you make a deal, and they tell that you will get a year, is that set in stone or is that just a recommendation to the judge?

    He only plead No Contest because he was getting 1 year instead of facing a trial for 25 to life. His pubd had previously said he had a good case because of inconsistencies in her story and her injuries looking fresh (red) when she said the assault happened 5 days earlier. So it feels wrong for him to plead no contest and take a felony. But I understand if he really will only get 1 year and can put her behind him rather then go to trial and risk the 25 to life. He has a small son and 25 to life would cause him to mis his entire childhood!

    Thanks for any answers to these questions.

  2. #2
    Join Date
    Aug 2010
    Posts
    2

    Default Re: Plea Still Stand with Unknown Strikes

    Update to the Case:

    Someone please advise! I think we need to do something quick.

    My friend has now found out that the two offenses in question which he thought were strikes were not. They were "strikable" offenses but not strikes. So now, in the plea deal, he accepted two strikes for a crime he did not commit.

    He only accepted it because his pubd told him he thought he must be right and had 2 strikes already. He told him to accept the plea and hope the two prior strikes were not found prior to sentencing. He was under the impression that if he did not accept and it went to trial, he could get 25 to life because of the two prior strikes. I spoke with the same pubd after the hearing and he told me the same thing. Hope that they do not find the prior strikes by sentencing date.

    How can he take back the plea? There was still confusion over his record because his pubd was unsure about it. He was so confused that when they were asking him to plea, he kept looking at his pubd who was prompting him to say yes to each count.

    What's even worse, he was offered 6 months and 1 strike at the first hearing but they rejected it because the pubd said his case was good and they would fight. Then a different judge at the second hearing offered 1 year and two strikes. Since the pubd thought they were missing some strikes in the case info, he urged him to take that plea even thought it was higher then the one they rejected in the first place.

  3. #3
    Join Date
    Mar 2010
    Location
    Florida
    Posts
    66

    Default Re: Plea Still Stand with Unknown Strikes

    I haven't had a chance to research this yet but I found some federal references to the following.It's likely a search on these terms in Ca. law will net some results.


    Motions to Withdraw Guilty Pleas
    Withdrawing Plea Before Sentencing
    Withdrawing Plea After Sentencing

    This explains the four factors Judges consider.

    http://www.youtube.com/watch?v=Pw9Go_H0ogc

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