What is a “Motion to Withdraw Plea Pursuant to Penal Code section 1018”?

Penal Code section 1018 permits a defendant to move to withdraw a plea of guilty or no contest at any time before judgment or within six months after an order granting probation is made (if entry of judgment is suspended) for good cause shown. According to the California Court of Appeal, “good cause” is shown if the defendant establishes he acted in “mistake, ignorance, inadvertence or for any other factor overreaching a defendant’s free and clear judgment.” (People v. Griffin (1950) 100 Cal. App. 2d 546). Other factors that may be considered “good cause” for relief under this Section include pleas entered by fraud or under duress. (Id. at page 1208).

As stated in the express language of Penal Code section 1018, there are strict timing requirements to filing a motion pursuant to Section 1018. A motion pursuant to this Section must be made either: (1) before judgment or (2) within six months after an order granting probation is made if entry of judgment is suspended.

If a motion is made pursuant to this section by a defendant who appeared without counsel at the time of the plea, the court “shall” allow the defendant to withdraw his plea and substitute a plea of not guilty. When a motion is made by a defendant who was represented by counsel at the time of the plea, the court “may” permit the defendant to withdraw his plea and enter a plea of not guilty.

The burden is on the defendant to show by clear and convincing evidence that good cause exists to grant the requested relief. (People v. Griffin (1950) 100 Cal. App. 2d 546). A plea may not be withdrawn simply because the defendant has changed his mind. (People v. Huricks (1995) 32 Cal. App. 4th 1201).

A Penal Code section 1018 motion may be beneficial to a defendant that has entered a plea without fully understanding the adverse immigration consequences that would result from the conviction. A court has discretion to permit a defendant to withdraw a plea pursuant to Penal Code section 1018 if a defendant entered the plea without knowledge or reason to suspect severe collateral consequences will result. (People v. Superior Court of San Francisco (1974) 11 Cal. 3d 793).

For example, in People v. Superior Court of San Francisco, it was not an abuse of discretion for the court to grant a defendant’s motion to withdraw the plea pursuant to Penal Code section 1018 when the defendant alleged that at the time of his plea he, his attorney, the prosecution, and the court were all an unaware that deportation would be a collateral consequence of his plea. (Id. at page 797).

Further, in People v. Patterson (2017) 2 Cal. 5th 885, the California Supreme Court determined that there is no categorical bar from seeking Section 1018 relief on the grounds of mistake or ignorance when, at the time of the plea, a defendant receives the standard advisement pursuant to Penal Code section 1016.5 that immigration consequences “may” result.

When a motion is granted under this Section, the case is not dismissed. The case reverts back to the arraignment stage and the defendant is again arraigned on the original criminal charges. The defendant must then decide whether to plead not guilty to the charges in the Complaint and continue with the criminal proceedings or attempt to re-negotiate with the prosecution to a favorable disposition.

If you believe that you may qualify for Penal Code section 1018 relief and need to seek to withdraw your plea, contact the attorneys of Escovar Law, APC, at 626-577-7700 for further assistance!


The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Escovar Law, APC or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this Post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. The information on this website is a communication and is for informational purposes only. The facts of every case are unique and nothing on this page or on this website should be taken as legal advice for any individual case or situation. The information on this website is not intended to create an attorney-client relationship and viewing of this information does not create an attorney-client relationship. The result portrayed in this advertisement was dependent on the facts of this case. Results will differ if based on different facts.