There are seven basic ways to attack the validity of the conviction itself:

 

(1) Motion in trial court to withdraw guilty plea under Penal Code § 1018 (See § 6.15, infra.)

 

(2) Direct Appeal from Conviction (See § 6.16, infra.)

 

(3) Writ of Habeas Corpus (See § 6.24, infra.)

 

(4) Motion to Vacate Judgment or Writ of Error Coram Nobis (See § 6.41, infra.)

 

(5) Nonstatutory Motion to Vacate (See § 6.44, infra.)

 

(6) Statutory Motion to Vacate for Violation of Penal Code § 1016.5 (See § 6.49, infra.)

 

(7) Motion to dismiss in the interests of justice. (See § 6.58, infra)

 

            Success in any of these avenues will vacate the conviction completely, ab initio, as if it had never existed, and eliminate any adverse immigration consequences of the conviction.  Recall, however, that some grounds of deportation and exclusion -- such as prostitution and drug trafficking, addiction, and abuse -- are based on conduct, and therefore do not depend on a conviction. For these grounds, evidence that the person committed the triggering act may bring immigration penalties even if there is no conviction or the conviction has been vacated.

 

            Vacating the judgment of conviction will also eliminate the immigration effect of any sentence or imprisonment resulting from the conviction.  See § 8.24, infra. A petition for an extraordinary writ may be brought simply for purposes of vacating the original sentencing, and obtaining a fresh sentencing hearing, while leaving the conviction itself intact.[1]  A new sentence imposed by the judge will be the one considered by the immigration authorities, even if the defendant has already completed serving the original sentence.[2]  See Chapter 8, infra, for discussion of the immigration consequences of sentences and confinement, and the procedural vehicles specifically directed at vacating or reducing the sentence, as opposed to the conviction.

 

            When a judgment has been vacated, the conviction is eliminated ab initio, as having been illegal from the time it was imposed.  When this occurs, it is important to (a) obtain a certified copy of the order vacating the conviction, since the immigration courts often require certified copies, and (b) correct the state and federal criminal history records so the client's rap sheets reflect the new information that the conviction has been vacated.[3]  In some cases, deportation or denial of immigration benefits based upon the conviction can be reversed upon a motion to reopen in immigration court once the conviction is vacated.[4]

 

            The granting of relief under Penal Code § 1203.4 did not deprive the trial court of jurisdiction to consider Post-Conviction Relief.[5]

[1] See, e.g., People v. Barocio (1989) 216 Cal.App.3d 99.

[2] Matter of Song, 23 I. & N. Dec. 173 (BIA 2001); Matter of Martin, 18 I. & N. Dec. 226 (BIA 1982) (correction of illegal sentence); Matter of H, 9 I. & N. 380 (BIA 1961) (new trial and sentence); Matter of J, 6 I. & N. Dec. 562 (AG 1956) (commutation).

[3] See Chapter 12, infra; K. Brady, § 8.10.

[4] See Chapter 12, infra.

[5] People v. Totari (2002) 28 Cal.4th 876; People v. Wiedersperg (1975) 44 Cal.App.3d 550; People v. Vasquez (2001) 25 Cal.4th 1225.

Ninth Circuit

POST CON RELIEF " VEHICLES " FEDERAL " PETITION FOR WRIT OF AUDITA QUERELA CANNOT BE USED TO REACH A CLAIM OF LEGAL INVALIDITY COGNIZABLE ON FEDERAL HABEAS CORPUS
United States v. Gamboa, ___ F.3d ___, 2010 WL 233145 (9th Cir. June 11, 2010)(affirming denial of petition for a writ of audita querela where district court lacked authority to consider the merits of the petition because it presented a claim regarding the legality of his sentence that was cognizable under 28 U.S.C. 2255).

POST CON RELIEF " VEHICLES " FEDERAL " PETITION FOR WRIT OF AUDITA QUERELA CANNOT BE USED TO REACH A CLAIM OF LEGAL INVALIDITY COGNIZABLE ON FEDERAL HABEAS CORPUS
United States v. Gamboa, 608 F.3d 492, 2010 WL 233145 (9th Cir. June 11, 2010)(affirming denial of petition for a writ of audita querela where district court lacked authority to consider the merits of the petition because it presented a claim regarding the legality of his sentence that was cognizable under 28 U.S.C. 2255).

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " HABEAS CORPUS " MOTION BROUGHT UNDER DIFFERENT NAME MUST BE EVALUATED AS IF CORRECTLY LABELLED
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 825 (4th Dist. Feb. 14, 2013) (Because we must affirm if the court's ruling was correct on any basis, we consider alternative bases for the order. (People v. Jones (2012) 54 Cal.4th 1, 50, 140 Cal.Rptr.3d 383, 275 P.3d 496 [a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.]; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 145, 112 Cal.Rptr.3d 746, 235 P.3d 62.)).

BIA

CAL POST CON " VEHICLES " PRIOR EXPUNGEMENT DOES NOT PREVENT LATER POST-CONVICTION RELIEF
The fact that a conviction had previously been expunged pursuant to Penal Code 1203.4(a) does not preclude later efforts to clear the defendants record with respect to the expunged conviction. Meyer v. Superior Court (1966) 247 Cal.App.2d 133. In Meyer, the defendant had been convicted of a wobbler as a felony in 1960, and had his conviction subsequently expunged pursuant to Penal Code 1203.4. He then attempted to have his felony reduced to a misdemeanor pursuant to Penal Code 17(b), which was modified in 1963 to include the reduction language and probation language that Penal Code 17(b)(3) has today. The trial court refused, stating it had no jurisdiction. The court of appeal held that the conviction may be reduced from a misdemeanor to a felony even well after the granting of an expungement under Penal Code 1203.4. In the present case, the conviction had already been expunged in 2008 on purely equitable grounds. The original expungement order, however, was entirely ineffective to eliminate the conviction for immigration purposes. Matter of Roldan, 22 I. & N. Dec. 512 (BIA 1999) (en banc). Because the conviction continued to exist for deportation purposes, the criminal court retains the authority to take further action to expunge the conviction on additional grounds in the interests of justice " because of grounds of legal invalidity in the original plea and sentence -- that will indeed be effective to eliminate the adverse immigration consequences of the conviction. Although a conviction has been expunged, a person should not be barred from pursuing a more effective remedy, particularly where the final decision as to whether he is worthy rests within the sound discretion of the superior court. (Ibid.)

Other

CAL POST CON " VEHICLES " ESTOPPEL BY PLEA AGREEMENT " FELONY CONVICTION UNDER STATUTE SPECIFYING CONDUCT IS A MISDEMEANOR VALID WHEN REQUIRED BY PLEA AGREEMENT
People v. Miller, 202 Cal.App.4th 1450 (5th Dist. Jan.27, 2012) (rejecting collateral attack against a plea to felony possession of diazepam, brought after the appellant had served the full term of his probation, where there was error in charging and accepting the plea to diazepam possession as a felony, when by statute it is at most a misdemeanor, but for reasons of public policy, the appellant was estopped from having his plea vacated and his conviction modified by his consent to the plea agreement).

CAL POST CON"VEHICLES"MOTION FOR RECONSIDERATION
In the civil arena, "the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. In short, the moving party's burden is the same as that of a party seeking new trial on the ground of 'newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.'" (Blue Mountain Development Co. v. Carville (1982), 132 Cal.App.3d 1005, 1013. Accord, Mink v. Superior Court (1992), 2 Cal.App.4th 1338, 1342.) This is based on Code of Civil Procedure 1008. However, according to People v. Castello (1998), 65 Cal.App.4th 1242, Code of Civ. Pro. 1008, which governs motions for reconsideration in the civil arena, does not apply to criminal cases. Criminal courts, however, look to Code Civ. Pro. 1008 for guidance. (See, e.g., In re Kowalski (1971), 21 Cal.App.3d 67, 70.) In rejecting the application of Code Civ.Pro. 1008 to criminal cases, the Castello court emphasized that a criminal court has the inherent power to reconsider its own rulings. The court noted that, at most, "section 1008 requires courts to exercise due consideration before modifying, amending or revoking prior orders. (Castello, supra, at 1250.) Thanks to Jason Cox.