Penal Code § 1018 – Motion to Withdraw a Plea in California

Penal Code § 1018 PC is the California statute that allows you to withdraw a plea of guilty or no contest. A judge will typically grant or approve the motion upon a showing of good cause. This includes situations where you either

• did not understand the circumstances of a plea,
• did not enter a plea freely and voluntarily, or
• were not represented by a competent attorney.

This is the full language of the code section:

1018. Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court.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without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.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.

If a judge grants a motion to withdraw a plea, you return to the arraignment portion of your case and begin the case anew.

If a judge denies a motion, then you are bound by the terms of your plea and will enter the sentencing phase of the criminal court process.

Even if the motion is denied, you can still try to avoid or challenge a sentence by:

1. filing an appeal, or
2. trying to get a conviction expunged.

Our California criminal defense lawyers will highlight the following in this article:

• 1. What is a motion to withdraw a plea?
• 2. What is a “good cause” showing?
  • 2.1. Not represented by an attorney
  • 2.2. Not aware of the consequences of the plea
  • 2.3. Coerced into a plea
  • 2.4. Not represented by a competent lawyer
  • 2.5. 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?
  • 4.1. The California appeals process
  • 4.2. California’s expungement laws

Penal Code 1018 PC is the law that allows you to withdraw your guilty plea or plea of no contest.

1. What is a motion to withdraw a plea?

California Penal Code Section 1018 grants you the right to withdraw a guilty or no contest plea. This right applies in both misdemeanor and felony cases.

Under the law, the withdrawal of a plea takes place by you filing a motion with the court. You must file the motion either:

1. before you are sentenced, or
2. within six months of a probationary sentence (as opposed to a jail or state prison sentence).¹

If a judge grants the motion, you are given the opportunity to withdraw a prior plea and substitute it with a plea of not guilty.

In general, you file a motion to withdraw a plea when you realize that pleading guilty or pleading no contest is not in your best interest. This might be the case, for example, when you:

• discover you are going to incur an unexpected penalty,
• believe you were represented by an incompetent lawyer or were the victim of ineffective assistance of counsel, or
• realize you made a mistake in accepting a plea agreement or plea deal.²

Example: Bill enters a guilty plea to criminal charges of robbery and admits that he had personally used a gun during the commission of his crime. He pleads guilty because he believes he will receive a probation sentence for the charge in return for admitting that he used a gun. The court, however, eventually finds Bill ineligible for probation despite the gun admission.

Here, Bill’s criminal defense attorney can submit a motion to withdraw Bill’s original guilty plea. This is because Bill likely would not have entered into a plea bargain if he knew at the time that he was ineligible for probation. If the motion is granted, Bill can withdraw his plea of guilty and substitute it with a not guilty plea.

Note that it may be possible for you to withdraw a plea once you have been incarcerated. But these proceedings will be handled differently, either via a Writ of Habeus Corpus or through expungement proceedings.

2. What is a “good cause” showing?

A judge will only grant a PC 1018 motion to withdraw a plea if you show “good cause” for withdrawal of the plea. California law does not allow you to withdraw a plea simply because you regret pleading guilty.

“Good cause” generally means that you entered a plea as the result of:

• incompetence,
• mistake,
• ignorance,
• inadvertence, or
• some other factor that demonstrates overreaching.³

You must establish good cause by clear and convincing evidence. “Clear and convincing evidence” is a legal standard by which 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 practice, you can typically establish good cause if you show that you were:

1. not represented by an attorney at the time of the plea,
2. not aware of the consequences of a plea,
3. coerced into a plea,
4. not represented by a competent lawyer, or
5. prejudiced by a language barrier.

2.1. Not represented by an attorney

You can typically establish good cause by showing that:

1. you entered a plea of guilty or no contest while representing yourself, and
2. the judge did not confirm that you understood you had a right to a lawyer.

Note that you will not prevail on a motion if you represent yourself and the judge explains that you have a right to a lawyer. The key to winning the motion in these cases is based on the judge’s instructions.

2.2. Not aware of the consequences of the plea

You will usually make a good cause showing by proving that you were not aware of a significant part of a sentence at the time of pleading guilty or no contest. Three common examples of when this occurs include when you are not aware that:

• a conviction results in mandatory jail or prison time,
• a guilty plea can produce a professional licensing suspension or revocation, and
• a guilty or no contest plea can have negative immigration consequences.

As to professional licensing, criminal defense attorney Michael Scafiddi explains,

“Oftentimes convictions affect professional licenses in California. This is a fact that 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 enter a guilty or no contest plea you were not aware that your license could be at risk, you may prevail on this type of motion.”

With regards to negative immigration consequences, consider a real case where 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.⁴

2.3. Coerced into a plea

A criminal court will typically grant a PC 1018 motion if you were threatened, coerced, or lured into pleading guilty or no contest.

A perfect example lies in the real case of Steven Sandoval Jr. Steven pled guilty to a voluntary manslaughter charge that required him to serve a 27-year state prison sentence. After pleading, Sandoval filed a winning PC 1018 Motion 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.⁵

2.4. Not represented by a competent lawyer

Ineffective assistance of counsel is one of the most common legal grounds for filing a Motion to Withdraw a Plea. For example, you can prevail on a motion if your attorney did not:

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

The key issue here is whether or not your lawyer’s representation fell below an objective standard of reasonableness. Note that this is a difficult argument to present, as courts do not like to second-guess an attorney’s tactical decisions.

However, you will usually prevail on a motion if you can show that your lawyer did not provide a reasonable level of guidance or representation and led you into a “bad deal.”

2.5. Prejudiced by a language barrier

This issue normally arises when you use an interpreter at the time of entering a plea. In this situation, you will typically win a PC 1018 motion upon showing, at the time of entering a plea, that the interpreter was not exclusively interpreting for you.⁶

You essentially begin your criminal case anew at an arraignment, if you succeed with your motion to withdraw a plea.

3. What happens if I win my motion to withdraw a plea?

When you prevail on a motion to withdraw a plea, you essentially begin your criminal case anew at an arraignment.

One result is that a prosecutor, at their discretion, can void any “deals” that might have been made with you.⁷ This means, for example, that if you plead guilty to trespass in exchange for the dismissal of a grand theft charge, and then win a PC 1018 motion, the prosecutor has the right to reinstate all the original charges, including the grand theft charge.

4. What happens if I lose my motion?

If you lose a motion to withdraw, you are bound by the terms of your plea. You can still try to challenge a sentence by:

1. filing an appeal, or
2. getting the conviction expunged.

4.1. The California appeals process

You can file an appeal to challenge a judge’s decision to deny a motion to withdraw a plea.

You will likely succeed with the appeal if you can show that the judge:

1. made a legal error in the denial, or
2. abused their discretion.

4.2. California’s expungement laws

If you cannot withdraw a plea and are found guilty of a crime, you can try to expunge the record of the criminal conviction.

You file for an expungement after you have fully completed your probation sentence and have no additional charges pending.

If successful, the conviction is essentially erased from your record.