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Under what circumstances, if any, can one retract or appeal a "no contest plea" to a misdemeanor charge in the state of CA.?

Van Nuys, CA |

I was pressured/put under duress (emotional and financial pressure) by my attorney to enter a "no contest" plea to a misdemeanor, which I now understand was severely against my best interests. This could end my career. The offer was never shown to me nor explained to me fully or correctly. I therefore misunderstood what I was agreeing to. Is there any way for me to retract or appeal this plea? Thank you so much!

Attorney Answers 4

Posted

The rationale to appeal must be based on some very detailed circumstances if you expect relief. Hours of fact gathering and legal research (see below) will be required.

Contact a local lawyer to talk specifics.

You might find my Legal Guide helpful "How to Choose A Lawyer For You"

http://www.avvo.com/legal-guides/ugc/how-to-choose-a-lawyer-for-you

You might find my Legal Guide helpful " What Do I Tell My Lawyer"

http://www.avvo.com/legal-guides/ugc/what-do-i-tell-my-lawyer

No one can know what the record is in the case because online we cannot see your documents. You need a lawyer. Check with a lawyer in your locale to discuss more of the details.

Some information based on California law (I do not practice in CA so contact a lawyer in CA)

A postplea question not challenging the validity of a guilty plea is a
noncertificate issue that may be raised on appeal after a guilty or no contest plea
without a certificate of probable cause. (People v. Kaanehe (1977) 19 Cal.3d 1, 8;
People v. Mendez, supra, 19 Cal.4th at p. 1100; § 1237, subd. (b).) The certificate
requirement is inapplicable “if the appeal is based upon grounds that arose after entry
of the plea and that do not affect the validity of the plea.” (People v. French (2008) 43
Cal.4th 36, 43.)

Section 1237.5 states: “No appeal shall be taken by the defendant from a
judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of
probation following an admission of violation, except where both of the following are
met: [¶] (a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings. [¶] (b) The trial court has
executed and filed a certificate of probable cause for such appeal with the clerk of the
court.”

I am in Chicago so check with a CA lawyer.

Good luck to you.

NOTE: This answer is made available by the out-of-state lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney in CA with whom you have established an attorney client relationship and all the privileges that relationship provides. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question

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Posted

To establish good cause to withdraw a plea of no contest, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of her free judgment when he or she entered that plea. Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. 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. (People v. Sandoval (2006) 140 Cal.App.4th 111, 123. Under Penal Code § 1018, a defendant may move to withdraw his or her guilty plea "for good cause shown" before judgment is entered or within six months after the defendant is placed on probation.

Penal Code § 1018 provides, 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 . . . 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.

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. (People v. Nance (1991) 1 Cal.App.4th 1453, 2 Cal.Rptr.2d 670; People v. Urfer (1979) 94 Cal.App.3d 887, 892; People v. Cruz (1974) 12 Cal.3d 562, 566.)

The statute provides: "This section shall be liberally construed to effect those objects and to promote justice." (Penal Code § 1018.) "This is in accord with the general policy of courts to protect the defendant's opportunity for a fair hearing, even when its loss is attributable in some degree to his own neglect." (B. Witkin & N. Epstein, California Criminal Law (2d ed. 1989 & 1994 Supp.), § 2171, p. 2542.) "[T]he withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be served by permitting the defendant to plead not guilty instead; and it has been held that the least surprise or influence causing a defendant to plead guilty when he has any defense at all should be sufficient cause to permit a change of plea from guilty to not guilty." (People v. McGarvy (1943) 61 Cal.App.2d 557, 564.)

Mistake, ignorance, inadvertence or any other factor which overcame defendant's exercise of free and clear judgment constitutes grounds for withdrawal of a plea before judgment. (People v. Superior Court [Giron] (1974) 11 Cal.App.3d 793, 797, 114 Cal.Rptr. 596, citing People v. Butler (1945) 70 Cal.App.2d 553, 561.) "[I]f the defendant shows that he or she held a mistaken belief at the time of entering the plea, a plea based on that belief may be withdrawn." (California Criminal Defense Practice § 42.30[1][D], p. 42-107 (Matthew Bender 1999)(citing People v. Tabucci (1976) 64 Cal.App.3d 133, 143, 134 Cal.Rptr.245 (defendant showed mistaken belief he would be eligible for parole in 20 months, rather than three years).)

The theory underlying these cases is that the defendant cannot have properly understood, and therefore cannot have properly waived, his constitutional rights while a mistake or ignorance of a significant fact prevented a proper understanding and his free and reasoned judgment was therefore overcome. (Stewart v. Justice Court (1977) 74 Cal.App.3d 607, 612, 141 Cal.Rptr. 589, citing Johnson v. Zerbst (1938) 304 U.S. 458, 464: "We are under a duty to indulge every reasonable presumption against waiver of fundamental constitutional rights.")

That's the law. The reality is that it is next to impossible to get a judge to grant a motion to withdraw a plea. This is because the system lives and dies on the number of pleas taken. Without the cooperation of the accused in almost all cases the system would crash. Therefore the reality is that these types of motions are almost always denied.

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Posted

You can make a motion to withdrawal your plea IF you can show that your plea was not knowingly and voluntarily entered into. The problem with "proving" this is that the court is reluctant to hear claims that really only amount to "buyer's remorse." In all likelihood, the Court had you complete a Tahl waiver form (waiver of your constitutional rights) which also includes information on the charge and the consequences of your plea. The Court, in all likelihood, then had a colloquy (discussion) with you on the record establishing that you understood your rights and the consequences of your plea. The court probably asked you if you had any questions before taking the plea. Assuming those two things happened, you will have a very tough road ahead.

You will need to prove that your lawyer misled or improperly pressured you to take a deal you did not want to take. Typically, that means your new lawyer will question your old lawyer under oath about what happened prior to your plea. Your lawyer will be obligated to answer the questions truthfully. If your old lawyer did something wrong and admits it, that will help. If, however, your former lawyer testifies that she explained the offer, the negotiated sentence, and the consequences of the deal prior to your agreement, then the Court will rule against you. If the “pressure” or “duress” you experienced was due to the fact that you preferred the case to be dismissed rather than take a deal, it is not the kind of pressure or duress that the Court will act on. Every defendant has the choice to fight the case and go to trial or take a deal. Sometimes, unfortunately, the choice may feel like taking the lesser of two evils.

Assuming the record shows a voluntary plea (see above) there is no appeal available without a record of wrongdoing by your attorney or the court.

There are some significant downsides to pursuing this that should be pointed out. First, if the court rules against you because the judge believes your former lawyer, then necessarily the judge will have decided that you were untruthful in your attempts to vacate the plea. If you are probation to that court, this is NOT a result you want. Even if it doesn’t have immediately consequences for you, there is a chance that your reduced credibility in the eyes of the court will negatively impact you if you have any problems while on probation.

You should consult a lawyer before taking any action. Ask your new lawyer to speak informally with the old lawyer before you decide to file a motion to vacate the plea. That way you and your new lawyer can calculate the strength of your motion and any collateral damage to your case should you lose.

Best of luck to you.

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Posted

Mr. Henderson and Ms. O'Connor have given you good advice. But there is more to be said. You do not say how long ago your plea was. You are not necessarily beyond hope if you are beyond the statutory period for "withdrawing your plea" under P.C. Section 1018. There is another way.

It is a common law remedy called the writ of "coram nobis", by which you can vacate a plea and conviction even after the six months has elapsed.The grounds are similar. The difference is that relief can be granted under coram nobis AT ANY TIME, as long as you have good cause for the delay. Not knowing you could do this, is likely good cause. Since most LAWYERS don't know about this, why would a judge blame you for not knowing?

I have obtained Coram nobis relief for clients as long as a decade and more after the conviction. I did it only two weeks ago for a woman who was convicted of an INFRACTION eight years ago. (and yes, that infraction was ruining her career plans even that long after). Coram nobis is allowed on all the grounds the 1018 relief is granted, but also where you did not understand the full consequences of the plea, (such as it ending your career).

I do not share the opinions that it is "nearly impossible" to get this kind of relief. I did it for a man a decade after a plea on a homicide that got him one year in county jail. Immigration policies changed after 911, so suddenly he was being deported. This was a college professor and botany researcher. I got the conviction vacated and resentenced him to a deal that would square him with Immigration. More recently, the woman who pleaded to the infraction was told that it was no worse than a "parking ticket" and yet many years later, she could not get a job, due to her "criminal record", even though she was a graduate of a very prestigious university.

You should not discount the fact that if you have something going for you, work hard and have demonstrated you have straightened out (or were innocent), a judge can be led to WANT to help you. So what I do is fill the writ petition with info about my client; all the good about them. D.A.'s may even support the petition.

I am not saying this is a shoe-in. It's not. But for the rare person and rare situation, I have found the facts compelling and correctly predicted that the judge would too. Can't hurt to inquire, can it?

For more information that may be of use to you and my contact info if you want a free consultation, you can go here:

http://lawyer-expungement.com/petition.htm

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