What Is a California Motion To Vacate?

A motion is a legal tool that asks a judge to make a decision. A motion to vacate specifically asks a judge to cancel something. If a judge or jury convicted you of a crime — or you pleaded guilty — then a motion to vacate might ask the judge to cancel the conviction. For a successful motion to vacate, you must have a precise reason based on California law. Another motion to vacate might ask the judge to cancel your sentence if it’s unlawful based on California law.

When To Consider Motions To Vacate

If you or a loved one were recently convicted, we recommend talking with a criminal appeals attorney right away. It may be helpful to have a fresh pair of eyes review the trial, the trial attorney’s strategy, and the trial judge’s decisions for any legal mistakes. If there was an error in your case, you might have grounds for an appeal or a motion to vacate a California conviction or sentence.

California Motions To Vacate a Judgment or Sentence

There are specific grounds to vacate a judgment or sentence. If your situation doesn’t fit into any of them, then this motion wouldn’t be useful in your case. But it’s a possibility that may be worth exploring.

Here are a few examples of grounds for motions to vacate. It is not an exhaustive list.

Motion To Vacate Under PC 1018

When you enter a guilty or no-contest plea, you have to do so knowingly and freely. That means you fully understand the consequences of your plea, and no one coerced you. If that isn’t true, then you can move to vacate the judgment based on:

  • You were unaware of the consequences of your plea
  • You didn’t have an attorney when you made the plea
  • Your trial lawyer was incompetent
  • Someone coerced you into entering your plea

You have to file this motion to withdraw your plea before judgment or within six months of a probationary sentence, not incarceration. If you’re in jail or prison, this motion isn’t an option.

If you didn’t have a lawyer, then the court has to let you withdraw your original plea and then plead not guilty. If you had a lawyer, the court has discretion. It may let you go back and plead not guilty. You have to show the court that you were substantially more likely than not to enter a not-guilty plea and fight the charges if things had been different.

Motion To Vacate Under PC 1016.5 — Immigration

When you’re not a U.S. citizen and charged with a crime, you must receive an immigration warning. Under California law, before you plead guilty or no contest, the court must tell you:

“If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.”

What happens if no one tells you that? California law lets you move to vacate the judgment and withdraw your plea if:

  • The court didn’t tell you about the immigration consequences
  • The conviction may cause the U.S. to deport you, keep you out of the country, or deny naturalization

The court will review the trial record to see whether the trial court told you. The prosecution has the burden of proving the court warned you.

To win this motion, you’ll have to prove an additional fact: That you were prejudiced by not being warned. In other words, we’d have to show you’d make a different choice. But the judge has discretion. They decide whether to allow the motion to vacate or not. If the judge vacates your judgment, you can withdraw your original plea and go through a trial.

Motion To Vacate Under PC 1473.7(a)(1)

This ground for moving to vacate the judgment is also based on immigration consequences. Under this law, you can file a motion to vacate based on a prejudicial error. Your conviction or sentence is invalid if you couldn’t understand, defend against, or knowingly accept the immigration consequences of your plea.

You have to prove there was a prejudicial mistake, which means you would’ve pleaded innocent if you’d understood you could be deported, denied naturalization, or kept out of the U.S.

One possible mistake is the ineffective assistance of counsel. Did your criminal defense lawyer at trial explain what could happen if you pleaded guilty or no contest? Did they do anything to mitigate the potential consequences of a conviction? If not, talk with a criminal appeals lawyer immediately.

To file a motion under PC 1473.7, you have to be out of criminal custody. That includes being incarcerated, on parole, or on probation.

The law doesn’t give a deadline for filing a motion to vacate under this law, but you shouldn’t wait. You need to bring it within a reasonable time. If you’ve received a Notice to Appear in immigration court or a deportation order, you are welcome to call Spolin Law P.C. to discuss next steps.

Based on New Evidence — Motion To Vacate Under PC 1473.7(a)(2)

You can move to vacate based on new evidence of your innocence. New evidence could reveal many things, including:

  • New scientific evidence, such as DNA
  • Another party’s admission of guilt for the crime
  • New, important facts come to light

You must be out of custody, which includes probation and parole. There’s no time limit for filing this motion, but you should file it as soon as possible. If something new comes up that proves your innocence, reach out to a criminal appeals attorney right away.

Motion To Vacate Under PC 1473.7(a)(3)

You may file a motion to vacate if you have evidence the conviction or sentence was based on your:

  • Race
  • Ethnicity
  • National origin

Motion To Vacate Hearings

After filing a motion to vacate a conviction or sentence, the court schedules a hearing. When an attorney represents you, they will appear in court for you. You don’t necessarily have to attend. During the hearing, your lawyer will present evidence supporting the grounds for your motion.

What Happens if You Win the Motion?

Winning the motion to vacate isn’t necessarily the end of the matter. The conviction or sentence is canceled as if it never existed, but the court doesn’t close your case. Instead, the prosecutor decides whether to drop or pursue the original charges.

If the prosecutor pursues charges, you must enter a new plea and go to trial. This gives you new opportunities to pursue an acquittal at trial or negotiate a plea bargain without serious immigration consequences, such as deportation.

If you win a motion to vacate a sentence, not the conviction, then the old sentence is thrown out. You’ll be given a new sentence based on California law.

Appealing a Motion To Vacate

If the judge denied your motion to vacate, you have a second chance. You can appeal the judge’s decision. But the right to appeal goes both ways. The government also can appeal if the judge grants the motion.

The Importance of Hiring a Lawyer

You must have legal grounds to file a motion to vacate. Without a good reason based on California law, the motion would be a waste of time. An experienced criminal appeals lawyer can review your case and scrutinize your arrest, trial, and sentencing. They can look for any legal errors, then explain your options. If you’re beyond the deadline to appeal, a motion to vacate might be appropriate.

Aaron Spolin is a former prosecutor and award-winning attorney. He has experience helping many people win better outcomes in their cases. It’s not always possible to avoid a conviction, but he may be able to try to mitigate the consequences and fight to get you the justice you deserve.

To learn more about motions to vacate in California, use the online form or call (310) 424-5816 to schedule a free consultation.