Motion to Withdraw a Guilty or No-Contest Plea in California

Bill 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.

If Bill had known that his gun admission would have denied him probation and mandated a prison sentence, he would not have pleaded guilty to the charge and instead would have taken the case to trial and left  his fate to the jury.1

Fortunately, Penal Code 1018 PC allowed him to do just that. This California law allows defendants to withdraw their guilty pleas under a variety of circumstances.2 And our team of skilled lawyers knows the most effective arguments to convince the court to allow our clients to do exactly that.

In this article, our California criminal defense attorneys3 explain the intricacies of withdrawing a guilty plea under Penal Code 1018 PC by addressing the following:

1.  What is a Motion to Withdraw a Plea?

2.  Good Cause for Withdrawing a Plea

2.1. You weren't represented by an  attorney at the time of your plea

2.2.  You weren't aware of the all of the consequences of the

2.3.  You were coerced into the plea

2.4.  You were represented by an incompetent lawyer

2.5  You were prejudiced by a language barrier

3.  What Happens if I Win My Motion to Withdraw a Plea?

4.  What Happens if I Lose My Motion to Withdraw a Plea?

4.1. The California appeals process

4.2.  California's expungement laws

If, after reading this article, you would like more  information, we invite you to contact us at Shouse Law Group.

1.  What is a Motion to Withdraw a Plea?

Penal Code 1018 PC reads, in pertinent part,

“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without counsel at the time of the plea  the court shall, for a good cause shown, permit the plea of guilty to be  withdrawn and a plea of not guilty substituted.4

Simply put, this law states that if you demonstrate “good cause” (discussed below in Section  2. Legal Grounds for Withdrawing a Plea) and file a Motion to Withdraw a Plea either (1) before you are sentenced, or (2) within six months of a  probationary sentence (as opposed to a jail/prison sentence), then you

  • must be given the opportunity to withdraw the plea and substitute it with a plea of not guilty if you pled guilty or no contest without an attorney or
  • may be given an opportunity to do the same if you pled guilty or no contest while you were represented by an attorney.5

***It may be possible to withdraw your plea once you have been incarcerated; however, those proceedings will be handled differently: either via a Writ of Habeas Corpus (a petition that argues that you have been unlawfully detained) or through expungement proceedings (discussed below in Section 4.1 California's expungement laws).

Generally speaking, you file a Motion to Withdraw a Plea when you realize that pleading guilty or nolo contendere “no contest”6 may not have been in your best interest. If, for example, you

  • discover that you are going to incur an unexpected  penalty,
  • believe that your attorney was incompetent, or
  • realize that you may be able to get a more  favorable outcome by rolling the dice and trying again,

you could file a Motion to Withdraw a Plea. This motion asks the court to allow you to rewind the California criminal  court process so that you may start fresh. But before a judge will grant this motion, you must establish good cause to withdraw your plea.

2.  Good Cause for Withdrawing a Plea

California law does not allow you to withdraw your plea simply because you regret your decision to plead guilty… that is, unless your California criminal defense attorney can demonstrate good cause for doing so.

As it pertains to a Motion to Withdraw a Plea, “good  cause” means that you entered your plea as the result of “incompetence, mistake, ignorance, inadvertence, or some other factor that demonstrates overreaching.”7 If you did not freely, knowingly and  intelligently waive your constitutional rights, the Motion should be granted.

It's not enough merely to claim that you have good cause… you must be able to prove it by clear and convincing evidence. “Clear and convincing  evidence” is a legal standard by which 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. Fortunately for the defense, this principle is supposed to be construed liberally to promote the interests of justice.8

Let's look at some examples to better illustrate this concept.

2.1.  You weren't represented by an attorney at the time of your plea

It's important to clarify that entering a guilty plea while you are not represented by an attorney does not in and of itself guarantee that you will be able to withdraw your plea. This is only the case if (in addition to representing yourself) you demonstrate good cause to support your Motion to Withdraw Your Plea.

This means that if you represented yourself even after the judge explained that you had a right to an attorney -- and you clearly and unequivocally waived that right in a knowing and intelligent manner -- you will not automatically prevail on your Motion.

However, if you represented yourself -- but the judge didn't confirm that you understood you had the right to a lawyer --the court will likely grant your Motion to Withdraw a Plea. The other benefit here is that if you represented yourself, you could claim that you didn't fully understand all of the consequences of your plea, which brings us to…

2.2.  You weren't aware of the all of the consequences of the plea

There are a number of circumstances where this position could come into play. If there is any significant part of a sentence that you were unaware of at the time you pled guilty, you should prevail on your Motion to Withdraw a Plea. The following are some common examples.

  • You weren't aware of a mandatory jail or prison term

Referring back to the example at the beginning of  the article, the defendant wasn't aware that by entering a guilty plea to a “robbery with a gun” charge, he was disqualifying himself from probation and ensuring that he would be sent to the California  state prison.

Although he did have a gun with him during the time of the robbery, he claims he never used it or removed it from his waistband. If he had known that a plea  would mean a mandatory prison sentence, he would have let a jury decide whether he was, in fact, guilty of personally  using a gun …which is the aggravated part of the robbery charge that triggered the prison sentence.

The court and probation department believed that defendant would have been a good candidate for probation had the gun enhancement not rendered him ineligible, which helped prove the good cause necessary to prevail on the Motion.

  • You weren't aware of a professional licensing suspension/revocation

Let's say that you are a doctor. You are arrested for driving under the influence with a blood alcohol  concentration of 0.20%. You decide to plead no contest to driving  under the influence based on the fact that you will not have to serve any jail time, despite the fact that your blood alcohol concentration was very high.

A few weeks after your plea, you find out that the medical board wants to revoke your license based on your driving under the influence conviction. Under these circumstances, it would be beneficial to file a Motion to Withdraw a Plea so  that you could either

  1. attempt to plea bargain for a reduced charge that  will not affect your professional license, or
  2. take your case to trial in the hope of securing an acquittal.

As Rancho Cucamonga criminal defense attorney Michael Scafiddi9 explains, “Oftentimes convictions affect professional licenses in California …a fact which many lawyers fail to tell their clients when they engage in plea bargaining or sentencing. If you are a professional… and at the time you entered a guilty or no contest plea were not aware that your license could be at risk… you may prevail on this type of motion.”

  • You weren't  aware of the immigration consequences

Consider a real 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 filed his Motion to Withdraw a Plea which was successful.10

If you plead guilty to a case -- and are unaware that  the conviction may trigger immigration consequences -- the court would likely allow you to withdraw your plea.

2.3.  You were coerced into the plea

If you plead guilty or no contest because you are threatened, coerced or lured into doing so, the court should grant your Motion  to Withdraw a Plea. This is because California law provides that guilty pleas must be entered into freely and voluntarily.

A perfect example lies with the real case of Steven Sandoval Jr. He 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 Withdraw a Plea 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.11

This Motion was granted based on the long  established rule that “guilty pleas obtained through ‘coercion, terror, inducements, subtle or blatant threats' are involuntary”12 …and  are therefore unlawful.

2.4.  You were represented by an incompetent lawyer

Ineffective  assistance of counsel is one of the most common legal ground for filing a Motion to Withdraw a Plea. If, for example, it turns out that the attorney representing you at the time of your plea failed to

  • properly investigate your case, or
  • present enough mitigating circumstances to obtain a  less severe sentence, or
  • file and argue the appropriate motions,

you may be entitled to withdraw your plea. The key issue here is whether or not your lawyer's representation fell below an objective standard of reasonableness  under prevailing professional norms.  This is a difficult… though by no means impossible… argument to present,  as courts don't like to second-guess an attorney's tactical decisions.

What's more is that 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… and encouraged you to take what turns out to be a “bad” deal… your Motion to Withdraw a Plea should be granted.

And although it may seem obvious, when you are looking to withdraw your plea based on a claim of ineffective assistance of  counsel, you should seek representation from a new attorney to handle the Motion. If you were represented by a public defender, the court should appoint a new attorney for you to file the motion.13

But be aware that if the new attorney doesn't believe that you have proper grounds for filing the motion… and therefore believes it is a frivolous one… he/she is not required to file it.14

2.5  You were prejudiced by a language barrier

If you used an interpreter at the time of your plea… but that interpreter wasn't exclusively interpreting for you as he/she was also interpreting for other defendants or witnesses… you may be entitled to withdraw your plea if your language barrier caused you to plead guilty to a charge to which you otherwise may not have pled.15

3.  What Happens if I Win My Motion to Withdraw My Plea?

If you win your Motion to Withdraw a Plea, it's as if you're starting over at your arraignment. As a result, any “deals” that you had with the prosecution are voidable at their option.16 This means that if, for example, you pled guilty to trespass in exchange for the dismissal of a grand theft charge, the prosecutor has the right to reinstate all the original charges, including the grand theft.

This is the risk you run when you withdraw your plea. However, if you're filing a Motion  to Withdraw a Plea, chances are it is because you believe you will receive a  more favorable outcome with a new deal… or a new trial… than you did under the existing plea and sentencing.

4.  What Happens if I Lose My Motion to Withdraw My Plea?

If you lose your Motion to Withdraw a Plea, you will be bound to the terms of your sentence.  At this point, you have a couple of options. You could (1) file an appeal, or (2)  ultimately try to expunge the conviction.

4.1. The California appeals process

The California appeals process allows you to appeal the court's decision to deny your Motion to Withdraw a Plea.  If you can demonstrate that the judge who denied your motion

    1. ruled based on a legal error, or
    2. abused his/her discretion,

you could potentially win at the appellate level.

Should you choose to file an appeal, you should consult with an experienced California appellate attorney who is familiar with the specific timeframes and deadlines that govern appeals. A skilled appeals attorney will also know the  most persuasive arguments to present on your behalf.

4.2. California's expungement  process

If you cannot withdraw your plea, you may ultimately be able to expunge the record of your California criminal conviction. You file for an expungement after you have fully completed your probation sentence and have no additional pending charges.

If successful, your case will essentially be erased from your criminal record and… with very limited exceptions… you will honestly be able to state that you were never convicted of the offense.

Another option is to petition the court for an early termination of probation. This is a benefit in its own right, since you cannot commit a probation violation if you are not on probation. However, the greater benefit is that once you have completed probation, you can ask the court to expunge your conviction.

Call  us for help…

Img call for help

If you or loved one is in need of help with withdrawing a plea 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.

For information about withdrawing a guilty plea in Nevada, go to our article on withdrawing a guilty plea in Nevada.

Legal  References:

1 People v. Caban (1983)148 Cal.App.3d 706.

2 California Penal Code 1018 PC – Motion to Withdraw Guilty Plea – 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.”)

3 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.

4 See Motion to Withdraw Plea,  endnote 2, above.

5 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 made by a defendant who entered his plea with counsel.”)

6 People  v. Ramirez (2006) 141  Cal.App.4th 1501, 1506. (“Section  1018 provides that “[o]n application of the defendant at any time before  judgment ... the court may ... for good cause shown, permit the plea of guilty  to be withdrawn and a plea of not guilty substituted.... This section shall be  liberally construed to effect these objects and to promote justice.” A no  contest plea is treated the same as a guilty plea for this purpose. (§ 1016,  subd. (3); People v. Rivera  (1987) 196 Cal.App.3d 924, 926–927, 242 Cal.Rptr. 191.)”)

7 People v. Griffin (1950) 100 Cal.App.2d 546, 548.

8 See Motion to Withdraw Plea,  endnote 2, above.

9 Rancho Cucamonga criminal  defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to  represent clients in San Bernardino, Riverside, Rancho Cucamonga, Banning, Fontana, Joshua  Tree, Barstow and Victorville.

10 People v. Superior Court  (Giron) (1974) 11  Cal.3d 793.

11 People v. Sandoval (2006) 140 Cal.App.4th  111.

12 See same at 124.

13 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. 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.”)

14 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, appointed counsel may properly  decline to bring a meritless motion.”)

15 People  v. Aguilar (1984) 35  Cal.3d 785,790. (“Article I,  section 14 of the California Constitution was amended  in 1974 by vote of the electorate to provide that ‘[a] person unable to  understand English who is charged with a crime has a right to an interpreter throughout  the proceedings.‘ (Italics added.)… The trial court correctly appointed an  interpreter for Mata Aguilar, thus complying with the portion of the  Constitution which guarantees that an interpreter be provided. However, the  trial court failed to follow the last three words of the constitutional  provision - ‘throughout the proceedings‘ - when it deprived Mata Aguilar of  that right by using his interpreter to translate for the prosecution's  witnesses. California's Constitution does not provide a half measure of  protection. Rather, it requires that when an interpreter is appointed for a  criminal defendant, that interpreter must be provided to aid the accused during  the whole course of the proceedings.”)

16 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].)”)


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