Under Penal Code § 1018, a court may allow a defendant to withdraw his or her guilty plea “for good cause shown” before judgment is entered or within six months,[86] after the defendant is placed on probation.  Trial courts are “expressly directed to give a liberal construction to the provisions of section 1018 in the interest of promoting justice.”[87]  In California, a judgment of conviction is not deemed to have been entered where imposition of sentence is suspended and probation granted, even though a conviction may exist for purposes of finality and appeal.[88]  In contrast, a defendant who was sentenced to probation more than six months before the date on which post‑conviction relief is requested may not use Penal Code § 1018, but must vacate the judgment pursuant to an extraordinary writ or non-statutory or statutory motion to vacate.[89]

 

            Thus, where a noncitizen has been placed on probation with imposition of sentence suspended, s/he may file a motion under § 1018 to withdraw the guilty plea at any time within six months after being placed on probation.[90]

 

            The California Supreme Court has held that a defendant's ignorance of the immigration consequences of his plea may properly be considered “good cause” to withdraw the plea, in the discretion of the trial court.[91]  This is in keeping with the general rule that “mistake, ignorance or inadvertence” will support withdrawal of a plea. 

 

            However, where the factual basis giving rise to grounds to withdraw a guilty plea is known prior to entry of judgment, the defendant must move to withdraw his plea in the trial court pursuant to Penal Code § 1018.  The failure to do so will prevent the defendant from being able to assert the invalidity of the plea on direct appeal.[92] 

 

          In a proper case, evidence that the plea was entered under duress, or any other factor that would inhibit a plea entered out of free will, will also support granting this motion.[93]  An unconstitutional probation condition will also support this motion.[94]  Since this relief is discretionary, it is especially important to argue the equities.  If the defendant was unrepresented by counsel at the time a plea to certain felony offenses was entered, however, the granting of the motion is mandatory under the terms of the statute.[95]

 

            Withdrawal of a guilty plea will serve to eliminate any conviction generally and as a ground of deportation, exclusion, or ineligibility to show good moral character.[96]  It is important to make sure the plea is withdrawn on grounds of legal invalidity, rather than merely as a compassionate action, in order successfully to avoid the immigration consequences.[97]

 

            This motion is rare, and discretionary.  Standard criminal motion practice may be used.  The burden of proof on a motion to withdraw a guilty plea under Penal Code § 1018 is borne by the defendant by clear and convincing evidence.[98] 

 

            A motion to withdraw a plea under Penal Code § 1018 must be heard and decided by the court before which the plea was entered.[99]  When a felony plea was entered in municipal court, the motion to withdraw must be made (or, if the motion was filed in superior court, remanded for decision) in the municipal court.[100]  While it is desirable for the motion to be heard by the same judge that took the plea, it is not mandatory.[101]

 

            When a plea was taken in municipal court, but the motion to vacate was filed in and denied by the superior court, the defendant could not object for the first time on appeal that the superior court erred when it failed to remand the matter to the municipal court for hearing and decision.[102]  The defendant waived the issue by failure to object in the superior court.  Moreover, this error does not require reversal if the defendant was not prejudiced by it, and suffers no prejudice when there are no legal grounds for withdrawal of the plea.  Since the defendant stated no legal grounds, either in superior court or on appeal, for withdrawal of the plea, he suffered no prejudice.[103]

 

            If the motion is denied, it is not necessary to secure a certificate of probable cause under Penal Code § 1237.5 for appeal from the trial court before an appeal will be allowed, since the appeal is taken under Penal Code § 1237(b).[104]  The notice of appeal must be filed within 60 days after the superior court order, or 30 days after an order in municipal court.

[86] People v. Miranda (2004) 123 Cal.App.4th 1124, 20 Cal.Rptr.3d 610.  It may be possible to argue successfully that such a motion can be filed after the six‑month limit on the same grounds used to file late notices of appeal.  See K. Brady, § 8.24.

[87] People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796-797, 114 Cal.Rptr. 596.

[88] People v. Orabuena (2004) 116 Cal.App.4th 84, 96; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596.

[89] See K. Brady, § § 8.29, 8.34.

[90] People v. Miranda (2004) 123 Cal.App.4th 1124, 20 Cal.Rptr.3d 610 (a trial court does not have jurisdiction to grant a defendant’s motion to withdraw his guilty plea, pursuant to Penal Code § 1018, when the motion is not made within seix months after the defendant has been granted probation).

[91] People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 797-798, 114 Cal.Rptr. 596.

[92] People v. Turner (2002) 118 Cal.Rptr.2d 99, 96 Cal.App.4th 1409.

[93]  People v. Sandoval (2006) 140 Cal.App.4th 411 (June 7, 2006)(court of appeals reversed trial court's denial of motion to withdraw guilty plea for abuse of discretion where codefendant had threatened to harm defendant in prison if he refused to plead guilty, and the trial judge had improperly pressured defendant to plead guilty).  In People v. Huricks (1995) 32 Cal.App.4th 1201, 38 Cal.Rptr.2d 592, the Second District Court of Appeal held the trial court properly denied a motion under Penal Code § 1018 based on the claim that defendant’s family pressured him into the plea.  The court held that he was under no greater pressure than any criminal defendant.

[94]  Alhusainy v. Superior Court, 143 Cal.App.4th 385, 48 Cal.Rptr.3d 914 (2006) (trial court erred in denying order allowing defendant to withdraw his guilty plea on the basis that he was not told of its direct consequences, specifically that the condition he remove himself from the state was unconstitutional as constituting banishment).

[95] Penal Code § 1018.

[96] Puello v. BCIS, 511 F.3d 324 (2d Cir. 2007) (a criminal court's order withdrawing a plea eliminates the conviction for immigration purposes; an interpretation of the statutory definition [of conviction to the contrary] appears to lead to the bizarre result that a withdrawn guilty plea would still be a “conviction” for immigration purposes, because the “conviction” would be established on the date of the entry of the plea. We reject this reading because “[a] statute should be interpreted in a way that avoids absurd results.”), citing United States v. Dauray, 215 F.3d 257, 264 (2d Cir. 2000). The sole issue is whether the trial court had jurisdiction under state law to vacate the conviction.  See, e.g., discussions in Matter of O'Sullivan, 10 I. & N. Dec. 320 (BIA 1963); Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970). It is important to make sure the plea is withdrawn on grounds of legal invalidity, rather than merely as a compassionate action to avoid the immigration consequences. Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998); Matter of Pickering, 23 I. & N. Dec. 621 (BIA 2003), reversed on other grounds in Pickering v. Gonzales, 465 F.3d 263 (6th Cir. Oct. 4, 2006). 

[97] Beltran-Leon v. INS, 134 F.3d 1379 (9th Cir. 1998).

[98] People v. Nance (1991) 1 Cal.App.4th 1453, 2 Cal.Rptr.2d 670.

[99] Penal Code § 859a.

[100] People v. Valdez (1995) 33 Cal.App.4th 1633, 39 Cal.Rptr.2d 818; People v. Mesa (1985) 174 Cal.App.3d 58, 60.

[101] People v. Batt (1994) 24 Cal.App.4th 1044, 1048; People v. Valdez, supra.

[102] People v. Valdez (1995) 33 Cal.App.4th 1633, 39 Cal.Rptr.2d 818

[103] Ibid.

[104] People v. Kraus (1975) 47 Cal.App.3d 568, 121 Cal.Rptr.11; but see People v. Castelan (1995) 32 Cal.App.4th 1185.  If counsel seeks a certificate, just in case one is required, the application must be filed within the same time as the notice of appeal.

Sixth Circuit

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA
People v. Nocelotl, 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 (6th Dist. Nov. 28, 2012) (defense counsel's erroneous advice that plea bargain conditioned probation only on psychologists' recommendations contained in Penal Code 1202.03 study did not entitle defendant to withdraw plea).

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " PENAL CODE 1018 " PERMITTED AFTER JUDGMENT
People v. Caruso (1959) 174 Cal. App2d 624, 633 ([A]lthough the code specifies that the withdrawal of a plea of guilty may be permitted before judgment (PC 1018), the court has the power to permit such withdrawal and the substitution of a not guilty plea after judgment has been pronounced.); citing People v.Campos (1935) 3 Cal. 2d 15, 43 P.2d 274.

CAL POST CON " VEHICLES " CORAM NOBIS " GROUNDS " CORAM NOBIS CAN BE MADE GRANTED ON GROUNDS THAT WOULD SUPPORT A MOTION TO WITHDRAW A PLEA UNDER PENAL CODE 1018 INCLUDING DURESS, FRAUD, OR OTHER FACT OVERREACHING THE DEFENDANTS FREE WILL AND JUDGMENT
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 821 (4th Dist. Feb. 14, 2013) (To be entitled to relief on a postjudgment motion to vacate the judgment, the courts have required a showing essentially identical to that required under section 1018, that is, on account of duress, fraud, or other fact overreaching the free will and judgment of a defendant he is deprived of the right of a trial on the merits.); citing People v. Gari, 199 Cal.App.4th 510, 523, 132 Cal.Rptr.3d 80 (4th Dist. Sept. 12, 2011).

Other

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " ABUSE OF DISCRETION ARGUMENTS " PRACTICE ADVISORY
The court can abuse its discretion in denying a motion under Penal Code 1018 to withdraw a plea in a number of ways: (1) The courts have emphasized that the discretion to deny a motion under Penal Code 1018 is less broad than in other contexts, because this relief must be liberally granted. Ibid. If the trial court failed to acknowledge or apply this presumption, it applied an incorrect legal standard in deciding whether to grant the motion. A court abuses its discretion by failing to employ the correct legal standard. (2) If the court employs a flat rule of denying the motion whenever the defendant has received the deportation may result advice required by Penal Code 1016.5, this amounts to a refusal to exercise discretion. People v. Superior Court (Romero), 13 Cal.4th 497, 917 P.2d 628 (Jun. 20, 1996). (3) The exercise of discretion requires a reasoned decision on what is just, given the law as applied to the facts. If the court ignored the facts, by adopting and applying a flat rule making a single fact " whether the defendant received the 1016.5 advice " conclusive and ignoring all other facts, this also amounts to failing to use the correct legal standard, which is an automatic abuse of discretion. (4) The grounds for granting a motion under 1018 are a showing of mistake, ignorance or any other factor overreaching defendants free and clear judgment. If the court in effect failed to employ this correct legal standard, by declaring that the defendants subjective state of mind was irrelevant, that constitutes an abuse of discretion. The court also can abuse its discretion by giving decisive weight to a single factor, a floodgates possibility that had been considered, and rejected, in this context by both the United States and California Supreme Courts.

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA UNDER PENAL CODE 1018 " STANDARD OF REVIEW " ABUSE OF DISCRETION
People v. Nocelotl, 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 (6th Dist. Nov. 28, 2012) (Section 1018 provides that ... On application of the defendant at any time before judgment ... the court may, ... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Good cause must be shown for such a withdrawal, based on clear and convincing evidence. [Citation.] [Citations.] To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] ... The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty. [Citation.] [] When a defendant is represented by counsel, the grant or denial of an application to withdraw a plea is purely within the discretion of the trial court after consideration of all factors necessary to bring about a just result. [Citations.] On appeal, the trial court's decision will be upheld unless there is a clear showing of abuse of discretion. [Citations.] [Citation.] Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged. [Citation.] ( People v. Weaver (2004) 118 Cal.App.4th 131, 145"146, 12 Cal.Rptr.3d 742. . . . In any event, the trial court's decision was not arbitrary, whimsical, or capricious. (See, e.g., People v. Cortez (1971) 6 Cal.3d 78, 85"86, 98 Cal.Rptr. 307, 490 P.2d 819.)).

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " MISTAKE OVERCOMING FREE JUDGMENT
People v. Nocelotl, 211 Cal.App.4th 496, 149 Cal.Rptr.3d 706 (6th Dist. Nov. 28, 2012) (Appellant, in effect, claimed that he had been operating under a mistake overcoming the exercise of his ... free judgment. (People v. Breslin (2012) 205 Cal.App.4th 1409, 1416, 140 Cal.Rptr.3d 906.) To prevail on this theory, he was required to show prejudice in that he ... would not have accepted the plea bargain had it not been for the mistake. [Citation.] ( Ibid.) Appellant did not carry his burden. Nowhere in his declaration did he allege that he would not have agreed to the negotiated disposition if counsel had informed him that the report would include the staff evaluation and the warden's recommendation. Even if appellant had so alleged, it is unlikely that the trial court would have credited the allegation. The negotiated disposition provided appellant with an opportunity to avoid a much lengthier prison sentence. If the report were favorable, he would be granted probation. Had appellant insisted on going to trial and been found guilty of kidnapping as charged, he could have been sentenced to prison for five, eight or eleven years. ( 208, subd. (b).) So, even if he were not granted probation, the negotiated disposition would still be favorable to appellant.).

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " PENAL CODE 1018
People v. Breslin, 205 Cal.App.4th 1409 (1st Dist. May 16, 2012) (motion to withdraw plea, under Penal Code 1018, on grounds of ineffective counsel for failing to discover prior to plea that the victim had attempted to recant his statement to the police is properly denied, where the other evidence served to support the initially stated facts, rather than the recantation).

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " TIMELINESS
People v. Williams, 199 Cal.App.4th 1285, 132 Cal.Rptr.3d 241 (2d Dist. Oct. 14, 2011) (trial court properly denied a motion to withdraw the plea under Penal Code 1018, because it was not made prior to judgment: imposition of a prison term, and suspension of execution of that sentence, constituted a judgment).

CAL POST CON " VEHICLES " MOTION TO WITHDRAW GUILTY PLEA CAL POST CON " GROUNDS " TRIAL COURT NEED NOT HAVE INFORMED DEFENDANT THAT FEDERAL PROSECUTORS MIGHT USE HIS PLEA AGAINST HIM IN A FEDERAL PROSECUTION People v. Aguirre, 199 Cal.App.4th 525, 131 Cal.Rptr.3d 785 (2d Dist. Sept. 26, 2011) (affirming trial courts denial of motion to withdraw guilty plea, made at sentence, since plea was not involuntary because trial court was not obligated to inform defendant that federal prosecutors might use his plea against him in a federal prosecution, since that was not a direct consequence of the plea). Note: The case reveals that the defendant was not well-served by his counsel or the court. First, his attorney apparently argued that the defendants lack of knowledge of the federal prosecution rendered the plea involuntary. There is no harm in making this argument, but it is not necessary to go so far to establish a right to withdraw a plea before sentence. Only good cause need be shown, Penal Code 1018, and the motion made so timely should be liberally granted. See People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596 (defendants lack of knowledge of the immigration consequences constituted good cause to withdraw plea under Penal Code 1018). Counsel should have made this additional argument. The court should have been aware, as well, of the proper standard for granting a motion to withdraw a plea, and granted it under Giron. Counsels argument that the court should have given this information to the defendant is also miscast, since there is no reason to believe that the court was aware of the impending federal prosecution. The conviction in this case should have been reversed, for defense counsels failure to raise the proper ground for granting the motion, and the courts error in failing to recognize that the plea should have been withdrawn nonetheless. This case may yet be salvaged, if the defendant files a petition for a writ of habeas corpus on grounds of ineffective assistance of counsel in failing to raise the proper ground, assuming the client is still in custody. If granted, this reversal might conceivably impact the validity of the federal conviction, if one has been reached, depending on the use put to the state conviction in the federal prosecution.

CAL POST CON " VEHICLES " MOTION TO WITHDRAW PLEA " PENAL CODE 1018
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (Penal Code 1018, which authorized the trial court to allow a defendant to withdraw a guilty plea before judgment was entered, did not provide authority for trial court's order granting defendant's motion to withdraw his guilty pleas where defendant claimed he had no knowledge that entry of plea would be inconsistent with representations he made on citizenship application, and thus jeopardize his naturalized United States citizenship).

CAL POST CON " ABUSE OF DISCRETION " PENAL CODE 1018 MOTION
This motion is addressed to sound judicial discretion, exercised after a consideration of all factors necessary to a just result. The court's decision will not be an abuse of discretion unless it exceeds the bounds of reason. (Mendieta v. Municipal Court (1980) 109 Cal.App.3d 290, 294; People v. Waters (1975) 52 Cal.App.3d 323, 328; People v. McDonough (1961) 198 Cal.App.2d 84, 90.) In determining whether its ruling will "promote justice," the court is required to consider the rights of the People.