Slow plea

§ 13:37. Slow plea—Nature of “slow plea” West's Key Number Digest West's Key Number Digest, Criminal LawKey Number Symbol​273 Legal Encyclopedias C.J.S., Criminal Law §§ 505 to 510 A “slow plea” occurs when the defendant agrees to submit his or her case to the court for decision on the basis of the preliminary hearing transcript or the police report.1 A slow plea may also involve an understanding by the defendant that the court will find him or her guilty, but the court may be given a choice of charges.2 A slow plea is a useful procedure when the defendant wants to preserve questions of fact for appellate review that would be waived by a guilty plea, but does not wish to stand trial. It is also used in plea bargains, when the defendant maintains his or her innocence but wishes to accept the prosecutor's offer. Under those circumstances, the defendant may agree to submit his or her case on a slow plea of guilty in exchange for a particular sentence.3 In any event, it is important that the terms of the slow plea be put on the record in order to forestall subsequent enforcement problems.4 A defendant who submits his or her case for decision on the basis of the transcript of the preliminary examination agrees that the transcript may be considered in lieu of the personal testimony of the witnesses who appeared at the preliminary hearing.5 The defendant gives up only the right to jury trial, not the right to a court trial. The defendant gives up the right to present additional evidence in his or her own defense, unless he or she specifies otherwise. However, he or she preserves the right to appeal and to present argument at trial and on appeal regarding the sufficiency of the evidence and its legal significance, and to raise other appropriate issues, irrespective of any foregone conclusion or understanding that he or she will be found guilty.6

1 See In re Steven H., 130 Cal. App. 3d 449, 451, 181 Cal. Rptr. 719 (4th Dist. 1982). 2 See People v. Huynh, 229 Cal. App. 3d 1067, 1078–1079, 281 Cal. Rptr. 785 (6th Dist. 1991) (manslaughter or second-degree murder). 3 See the discussion of plea bargains in Chapter 14. 4 People v. James, 208 Cal. App. 3d 1155, 1167, 256 Cal. Rptr. 661 (4th Dist. 1989). 5 Bunnell v. Superior Court, 13 Cal. 3d 592, 601, 119 Cal. Rptr. 302, 531 P.2d 1086 (1975). 6 Bunnell v. Superior Court, 13 Cal. 3d 592, 604, 119 Cal. Rptr. 302, 531 P.2d 1086 (1975).

§ 13:38. Slow plea—Bunnell advisement of rights and waivers West's Key Number Digest West's Key Number Digest, Criminal LawKey Number Symbol​273.1(4) Legal Encyclopedias C.J.S., Criminal Law §§ 505, 524 to 527, 529 Because of the rights the defendant surrenders in submitting the case on a slow plea, he or she must be advised of and waive the following rights before the court may accept such a plea:1 1. The right to a jury trial. 2. The right to confrontation and cross-examination of witnesses. 3. The right against self-incrimination. The record must reflect such advice, waivers, and acknowledgment by the defendant of his or her understanding of these consequences in all submissions. The record must also reflect that the defendant has been advised of and understands the nature of the charges.2 The defendant also must be advised of the direct consequences of conviction, such as the permissible range of punishment provided by statute, registration requirements, if any, and, in appropriate cases, the possibility of being committed as a narcotics addict.3 When the defendant submits his or her case on the transcript without reserving the right to present evidence in his or her own defense, he or she also must be advised of this evidentiary right and expressly waive it.4 If a defendant does not reserve the right to present additional evidence and does not advise the court that he or she will contest his or her guilt in argument to the court, the defendant must be advised of the probability that the submission will result in a conviction.5 Errors in not giving a defendant the required advisements and obtaining the proper waivers is reversible per se when the slow plea was the equivalent of a guilty plea. A slow plea is the equivalent of a guilty plea when, among other situations, the case is submitted on specified evidence and the defendant does not reserve the right to present evidence or make argument to the court contesting his or her guilt.6 However, when the slow plea is contested (when the defendant reserves the right to present evidence or contest his or her guilt), the Bunnell advisements are not constitutionally compelled, but are required by judicial rule only.7 Thus, error in not giving the correct advice when the slow plea does not amount to a plea of guilty is subject to the test of whether the defendant probably would have obtained a better result had he or she been properly advised.8

1 Bunnell v. Superior Court, 13 Cal. 3d 592, 605, 119 Cal. Rptr. 302, 531 P.2d 1086 (1975).

2 Bunnell v. Superior Court, 13 Cal. 3d 592, 605, 119 Cal. Rptr. 302, 531 P.2d 1086 (1975); see the discussion of required advisements on the nature of the charges in § 13:31.

3 Bunnell v. Superior Court, 13 Cal. 3d 592, 605, 119 Cal. Rptr. 302, 531 P.2d 1086 (1975); see Welfare and Institutions Code §§ 3050, 3051 (narcotics addict commitment proceedings); see also the discussion of required advisements on direct consequences of a plea in § 13:33.

4 People v. Lucky, 45 Cal. 3d 259, 285, 247 Cal. Rptr. 1, 753 P.2d 1052 (1988).

5 People v. Lucky, 45 Cal. 3d 259, 286, 247 Cal. Rptr. 1, 753 P.2d 1052 (1988).

6 People v. Wright, 43 Cal. 3d 487, 492, 233 Cal. Rptr. 69, 729 P.2d 260 (1987).

7 People v. Wright, 43 Cal. 3d 487, 495, 233 Cal. Rptr. 69, 729 P.2d 260 (1987).

8 People v. Huynh, 229 Cal. App. 3d 1067, 1079, 281 Cal. Rptr. 785 (6th Dist. 1991).