A petition for a writ of error coram nobis is the equivalent of one form of a motion to vacate a judgment of conviction.[282]  Application is made to the trial court, unless the case is on appeal; in that case, the application is termed a petition for writ of error coram vobis, directed to the appellate court.[283]

 

            The petition will not be granted if the court’s ignorance of the critical fact was caused by negligence or fault of the defendant, or if the defendant has not shown “due diligence” in seeking the writ after discovery of the fact.[284]

 

            Note, however, that there is no requirement that the person be under actual or constructive custody.  Coram nobis thus provides an avenue of relief after the expiration of probation or parole, when habeas corpus (as well as withdrawal of guilty plea under Penal Code § 1018) may not be available.  A petition for a writ of coram nobis will lie even after a conviction has been expunged under Penal Code § 1203.4.[285]

[282] People v. Shipman (1965) 62 Cal.2d 226, n.2, 42 Cal.Rptr. 1; People v. Haynes (1969) 270 Cal.App.2d 318, 75 Cal.Rptr. 800.  Courts will generally accept the motion regardless of which name is used.  However, note that some courts refuse to grant a motion to vacate judgment if the judgment is regular on its face, whereas coram nobis offers relief in exactly that situation: where the error is extrinsic to the record.

[283] See, e.g., People v. Welch (1964) 61 Cal.2d 786, 40 Cal.Rptr. 238.

[284] People v. Shipman, supra; People v. Wiedersperg, supra (fault of petitioner); People v. Reeg (1957) 153 Cal.App.2d 97, 314 P.2d 52 (diligence).

[285] People v. Wiedersperg (1975) 44 Cal.App.3d 550.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " MOTION TO VACATE " CORAM NOBIS " RES JUDICATA " UNAPPEALED DENIAL OF FIRST MOTION TO VACATE WAS RES JUDICATA
People v. Mbaabu, 213 Cal.App.4th 1139, 152 Cal.Rptr.3d 818 (4th Dist.Feb. 14, 2013) (unappealed denial of defendant's first postjudgment motion to withdraw his guilty plea was res judicata).

CAL POST CON " VEHICLES " CORAM NOBIS " REQUIREMENTS
People v. Mbaabu, 213 Cal.App.4th 1139, ____, 152 Cal.Rptr.3d 818, 823-824 (4th Dist. Feb. 14, 2013) (The writ of error coram nobis is granted only when three requirements are met. Those requirements are set forth in the decision of People v. Shipman (1965) 62 Cal.2d 226, at page 230, 42 Cal.Rptr. 1, 397 P.2d 993: (1) Petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment. (2) Petitioner must also show that the newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (3) Petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his petition for the writ. These factors, set forth in Shipman, continue to outline the modern limits of the writ. (People v. McElwee, supra, 128 Cal.App.4th at p. 1352, 27 Cal.Rptr.3d 448.)).