California criminal law requires that when you enter a guilty or "no contest" plea to a charge, you do so freely, knowingly and intelligently. But when that isn't the case, because...
- you subsequently learn that you were unaware of all of the consequences of your plea,
- you were coerced into your plea, or
- you were represented by an incompetent attorney (or weren't represented by an attorney at all),
Penal Code 1018 allows you to file a Motion to Vacate Judgment.1 When successful, this Motion grants you the opportunity to withdraw your plea so that you can alternatively plead "not guilty" to the offense. Essentially, the conviction gets erased and the case gets rewound back to the beginning.
In order to prevail on a Motion to Vacate Judgment, you must prove that it is substantially more likely than not that you would not have entered a guilty or no contest plea had you known all the facts at the time of the plea.
In this article, our California criminal defense attorneys2 offer a comprehensive guide to understanding how to file a successful Motion to Vacate Judgment under Penal Code 1018 PC by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
Simply put, a Motion to Vacate Judgment provides you with an opportunity to ask the court to withdraw a previous order or judgment that it has entered. With respect to the DUI California criminal court process, it specifically allows a defendant to withdraw a guilty or nolo contendere "no contest" plea so that he/she can instead enter a plea of "not guilty".
Also commonly referred to as a Motion to Withdraw a Plea, a Motion to Vacate Judgment is authorized under Penal Code 1018 PC.3
Penal Code 1018 PC states,
"On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
This means that if
- you demonstrate good cause..."good cause" means one of the appropriate legal grounds discussed below in Section 2. Legal Grounds for Withdrawing a Plea...and
- file a Motion to Vacate Judgment either
- before you are sentenced, or
- within six months of a probationary sentence (as opposed to a jail/prison sentence), then
- the court must allow you to withdraw your plea and substitute it with a plea of not guilty if...at the time you entered your initial plea...you did so without an attorney, or
- the court may allow you to withdraw your plea even if you were represented by an attorney if the court believes it would be in the interests of justice to allow you to do so.4
∗∗∗Please note that it may be possible to withdraw your plea once you have been incarcerated; however, you would not file a Motion to Vacate Judgment in order to do so. Under those circumstances, your attorney would either file a Writ of Habeas Corpus (a petition that argues that you have been unlawfully imprisoned) or through expungement proceedings which are discussed below in Section 4.1 California's expungement laws).
Before the court will allow you to "rewind" the criminal proceedings, you must prove that you have good cause for doing so. "Good cause" means that you entered your plea as the result of "incompetence, mistake, ignorance, inadvertence, or some other factor that demonstrates overreaching."5
So the bottom line is this: if you did not freely, knowingly and intelligently waive your constitutional rights, the Motion should be granted. And the way to prove that you are entitled to this type of relief is through one of the following legal grounds.
This is, perhaps, the most common reason for filing a Motion to Vacate Judgment. When you enter a guilty or no contest plea under the assumption that you know all of the consequences of the plea...only later to discover that you are going to incur an unexpected penalty...Penal Code 1018 PC allows you to withdraw that plea. That is, as long as you can prove that it is substantially more likely than not that you would not have entered a guilty or no contest plea had you known all the facts at the time of the plea.
Fortunately, judges are directed to construe this principle liberally in order to promote the interests of justice.6
Typical examples of situations where the defendant was unaware of the consequences of his/her plea include...but are by no means limited to...cases where the defendant did not know or understand that the proposed sentence
- carried a mandatory jail or prison term,7
- would result in a professional license suspension/revocation (∗many convictions affect California professional licenses, a fact which many attorneys and judges overlook when explaining the ramifications of guilty or no contest pleas), or
- could result in immigration consequences...such as removal or deportation...given that a variety of convictions trigger immigration consequences.8
If you entered a guilty or no contest plea...and did so without an attorney...the court must grant your Motion to Vacate Judgment if you can prove that you did not enter your plea freely, knowingly and intelligently.
In other words, the fact that you entered your plea without an attorney will not in and of itself guarantee that you can withdraw that plea. You must further prove that you did not enter your plea freely, knowingly and intelligently.
If, for example, you sought to represent yourself, and the judge explained that you had the right to an attorney...yet you clearly and unequivocally stated that you nevertheless wished to proceed...the judge would not necessarily be required to grant your Motion to Vacate.
However, let's say that the judge didn't confirm that you understood you had the right to an attorney...even if you were unable to afford to hire one yourself...the court would be required to grant your motion. Similarly, if the judge didn't make sure you understood all of the consequences of your plea, the court would be required to grant your motion.
Again, if you can demonstrate that...at the time you entered your guilty or no contest plea...you did not do so freely, knowingly and intelligently, you should prevail on a Motion to Vacate Judgment.
Even if you had an attorney, but he/she either
- didn't properly advise you of all the consequences of your plea,
- didn't properly investigate your case, or
- encouraged you to take a plea that wasn't in your best interest,
the court should grant your Motion to Vacate Judgment.
This defense, legally referred to as ineffective assistance of counsel isn't as straight-forward as it seems. In order to prevail on your Motion, you must be able to prove that your lawyer's representation fell below an objective standard of reasonableness under prevailing professional norms.
What makes this difficult is that
- the court will generally not second-guess an attorney's tactical decisions, and
- the decision as to whether or not to plead guilty is one for you to make...even if your attorney disagrees with it...as long as you voluntarily and knowingly enter the plea.
But if you can prove that your attorney truly didn't provide a reasonable level of guidance or representation, the court should grant your Motion to Vacate Judgment.
If you were represented by a public defender at the time of your plea, the court should appoint a new attorney to investigate the grounds for this motion.9 Similarly, if you were represented by a private attorney at the time of the plea, you should hire a new attorney to review the case. This avoids a conflict of interest.
It is important to be aware of the fact that if your new attorney (whether a public one or a private one) does not believe that you have good cause for filing the motion, he/she is not required to do so.10
If you did not freely and voluntarily enter your plea...because you were threatened, coerced or lured into doing so...the court should grant your Motion to Vacate Judgment.11
This may be the case if, for example,
- a judge improperly pressured you to "take a deal",
- a co-defendant threatened to harm you or your family if you didn't take responsibility for the offense, or
- one of the arresting officers told you that if you didn't plead guilty to the charge, he/she would retaliate against your loved ones (which would clearly be an example of police misconduct and should be revealed to your lawyer).
"Guilty pleas obtained through 'coercion, terror, inducements, subtle or blatant threats' are involuntary"12...and are therefore the types of legal grounds that justify a successful Motion to Vacate Judgment.
If the judge grants your Motion to Vacate Judgment, you essentially get a "do over". The plea is erased, and you will start over at your arraignment.
But as Palm Springs criminal defense attorney Michael Scafiddi13 explains, "This remedy has some negative consequences as well. Once your plea has been stricken, the prosecutor reserves the right to take any prior 'deals' off the table.14 This could force you into either moving forward with a jury trial or pleading guilty to a more severe charge. However, it stands to reason that if you are withdrawing your plea, it is because you believe you stand to benefit from a new result."
If you lose your Motion, you must fulfill the terms of your sentence. There are, however, a couple of different options that you may still exercise. One is to file an appeal; the other is to try to expunge the conviction.
The California appeals process allows you to appeal the court's denial of your Motion to Vacate Judgment. If the judge denied your Motion based on a legal error...or abused his/her discretion in doing so...the California Court of Appeal may reverse the decision and allow you to withdraw your plea.
Your other option is to try to expunge your expunge your California
criminal conviction. The downside to this is that you may only apply for an expungement after you have fully completed your probation sentence and have no additional pending charges.
If the judge grants your expungement, the conviction is removed from your criminal record and...with very limited exceptions...you will honestly be able to state that you were never convicted of the offense.
You can also petition the court for an early termination of probation This option not only allows you to apply for expungement earlier, but it also removes the potential of being convicted of a probation violation in the event that you find yourself arrested for a new offense.
Call us for help...
If you or loved one is need of help with motions to vacate a criminal judgement and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
1 California Penal Code 1018 PC - Motion to Vacate Judgment - Defendant to plead in person; refusal of certain pleas; change of plea; corporate defendants; construction of section. ("Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant's counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.")
2 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
3 California Penal Code 1018 PC - Motion to Vacate Judgment, endnote 1, above.
4 People v. Cruz (1974) 12 Cal.3d 562, 566. ("The general rule governs this case. A motion to withdraw a guilty plea must be supported by a showing of good cause, whether the defendant was represented by counsel when entering the plea or waived his right to representation. The distinction drawn between the two classes is this: The requisite showing of good cause having been made, the court Must grant a withdrawal motion made by a defendant who entered his plea without counsel, whereas the court May grant a withdrawal motion [also known as a Motion to Vacate Judgment] made by a defendant who entered his plea with counsel.")
5 People v. Griffin (1950) 100 Cal.App.2d 546, 548.
6 See Motion to Vacate Judgment, endnote 1, above.
7 People v. Caban (1983)148 Cal.App.3d 706. In this case, the defendant entered a guilty plea to a robbery charge and admitted that he had personally used a gun during the commission of the crime. He believed he would receive a probation sentence for the charge in return for having made the admission. However, the court found him ineligible for probation based on the gun admission and ordered him to serve a mandatory state prison sentence. The Court of Appeal vacated the judgment entered by the trial court, recognizing that if the defendant had known that his gun admission would have denied him probation...and therefore required him to serve time in prison...he would not have pled guilty to the charge and instead would have taken the case to trial and left his fate to the jury.
8 People v. Superior Court (Giron) (1974) 11 Cal.3d 793. In this case, Jose Giron...a lawfully admitted permanent resident alien...pled guilty to misdemeanor possession of marijuana. Neither he nor the court realized that a plea to possession of marijuana would subject him to deportation. After being notified by the INS that that was the case, he successfully filed his Motion to Vacate Judgment.
9 People v. Smith (1993) 6 Cal.4th 684, 695. ("A defendant is entitled to competent representation at all times, including presentation of a new trial motion or motion to withdraw a plea [also known as a Motion to Vacate Judgment]. For the reasons identified in People v. Fosselman, supra, 33 Cal.3d at pages 582-583, justice is expedited when the issue of counsel's effectiveness can be resolved promptly at the trial level. In those cases in which counsel was ineffective, this is best determined early. Thus, when a defendant satisfies the trial court that adequate grounds exist, substitute counsel should be appointed. Substitute counsel could then investigate a possible motion to withdraw the plea or a motion for new trial based upon alleged ineffective assistance of counsel. Whether, after such appointment, any particular motion should actually be made will, of course, be determined by the new attorney.")
10 People v. Brown (2009) 175 Cal.App.4th 1469, 1472. ("A defendant may move to withdraw his plea, at any time before judgment, on a showing of good cause. (Pen.Code, § 1018.) " ' "[T]he withdrawal of such a plea rests in the sound discretion of the trial court and may not be disturbed unless the trial court has abused its discretion." ' " ( People v. Wharton (1991) 53 Cal.3d 522, 585, 280 Cal.Rptr. 631, 809 P.2d 290.) Although criminal defendants are entitled to competent representation in the presentation of a motion to withdraw a plea [also known as a Motion to Vacate Judgment], appointed counsel may properly decline to bring a meritless motion.")
11 People v. Sandoval (2006) 140 Cal.App.4th 111. In this case the defendant, Steven Sandoval Jr., pled guilty to a voluntary manslaughter charge that required he serve a 27-year state prison sentence. After pleading, Sandoval filed a winning Motion to Vacate Judgment because (1) a co-defendant...a fellow gang member...threatened to hurt him in prison if he didn't plead guilty, and (2) the judge improperly pressured him to plead guilty.
12 See same at 124.
13 San Jose criminal defense attorney Cameron Bowman defends clients throughout Northern California which includes (but is not limited to) the Santa Clara, Contra Costra, San Francisco and Alameda County courthouses.
14 People v. Superior Court (Garcia) 131 Cal.App.3d 256, ("Familiar and basic principles of law reinforced by simple justice require that when an accused withdraws his guilty plea the status quo ante must be restored. When a plea agreement has been rescinded the parties are placed by the law in the position each had before the contract was entered into. ( In re Sutherland (1972) 6 Cal.3d 666, 672 [100 Cal.Rptr. 129, 493 P.2d 857].) Here defendant agreed to plead guilty to murder in order to obtain a reciprocal benefit: the forbearance of the prosecutor in not amending the information to seek the death penalty. When a defendant withdraws his plea, the prosecutor is no longer bound; counts dismissed may be restored. ( People v. Collins (1978) 21 Cal.3d 208, 215 [145 Cal.Rptr. 686, 577 P.2d 1026].)")