Tooby's California Post-Conviction Relief for Immigrants

 

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.