If the client is no longer “in custody” as a result of the conviction that must be vacated, or if a favorable decision is necessary sooner than the six months or so it may take to vacate a conviction on habeas corpus, counsel may attempt to vacate a conviction by filing a nonstatutory motion to vacate on constitutional grounds, such as ineffective assistance of counsel at the time of plea and sentencing or violation of the state and federal rights to due process and a fair trial.  In fact, counsel may raise any ground here that may be raised on habeas corpus.[288]

 

            The motion may be made on the regular law and motion calendar, with two weeks notice to the prosecution, and so is potentially far faster than habeas corpus.  Counsel usually has a choice between placing it on the criminal master calendar, or placing it on the regular law and motion calendar of the judge who took the plea or sentenced the defendant.  If the motion is denied, and the defendant wishes to appeal, a certificate of probable cause to appeal under Penal Code § 1237.5 is probably not required even if the conviction was based on a plea of guilty or no contest.[289]

[288]  See Chapter 7, infra.

[289] People v. Kraus (1975) 47 Cal.App.3d 568, 121 Cal.Rptr. 11; but see People v. Castelan (1995) 32 Cal.App.4th 1185.  Counsel may in an abundance of caution seek a certificate anyway.

Lower Courts of Ninth Circuit

CAL POST CON " VEHICLES " CORAM NOBIS " NONSTATUTORY MOTION TO VACATE " THIS VEHICLE CANNOT RAISE A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL
People v. Mbaabu, 213 Cal.App.4th 1139, 152 Cal.Rptr.3d 818, 821 (4th Dist.Feb. 14, 2013) (We hold that a motion to vacate the judgment in the nature of coram nobis is not a proper vehicle for relief from a constitutional violation of the defendant's right to effective assistance of counsel.). Further, even if defendant's motion was treated as a petition for writ of habeas corpus, it should have been denied as untimely and duplicative, in addition to lacking in any evidence from the defendant that he would have rejected the offer and gone to trial had he been properly advised of immigration consequences.

Other

CAL POST CON " VEHICLES " NONSTATUTORY MOTION
People v. Shokur, 205 Cal.App.4th 1398 (May 16, 2012) (court was not required to hear defendants "nonstatutory motion" to set aside his conviction based on counsels alleged ineffectiveness for not explaining that the client would not be allowed to apply for discretionary relief from deportation; the court was without jurisdiction to hear motion to set aside conviction, as case law did not require a nonstatutory motion safety net to provide a remedy when other remedies through which relief might have been obtained were no longer available).

CAL POST CON " VEHICLES " CORAM NOBIS " NONSTATUTORY MOTION TO VACATE
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (noncitizen defendants assertions that he pleaded guilty to offenses occurring before he obtained naturalized United States citizenship, without knowing the legal effect of the plea on his citizenship status, were insufficient to support coram nobis relief or any similar form of nonstatutory relief based on equity and fairness).

CAL POST CON " VEHICLES " NONSTATUTORY MOTION TO VACATE
People v. Gari, 199 Cal.App.4th 510 (4th Dist. Sept. 12, 2011) (defendants claim when he entered guilty plea he was not warned, and it was not otherwise foreseeable, that his naturalized United States citizenship might be revoked as a consequence of pleas to offenses committed prior to his stating to immigration authorities he had not committed any offenses for which he had not been arrested, did not justify equitable relief from the convictions based on the argument the court had inherent power to provide relief).