People v. McElwee

62 Citing cases

  1. H029324, People v. Kim

    45 Cal.4th 1078 (Cal. 2009)   Cited 345 times
    Recognizing that “a lower court's ruling on a petition for the writ is reviewed under the abuse of discretion standard”

    These factors set forth in Shipman continue to outline the modern limits of the writ. ( People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [ 27 Cal.Rptr.3d 448].) Several aspects of the test set forth in Shipman illustrate the narrowness of the remedy.

  2. People v. O'Brien

    2d Crim. No. B256060 (Cal. Ct. App. Apr. 20, 2015)

    We affirm. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) All statutory references are to the Penal Code unless otherwise stated.

  3. People v. Anderson

    No. D054171 (Cal. Ct. App. Jul. 27, 2009)

    A writ of coram nobis [vobis] permits a court "`"to reconsider [the judgment] and give relief from errors of fact." [Citation.]" (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) "`The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ.

  4. People v. Anderson

    D054171, D054997 (Cal. Ct. App. Jul. 27, 2009)

    " [Citation.]' " (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) " 'The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ.

  5. People v. Linares

    No. D063625 (Cal. Ct. App. Feb. 11, 2014)

    The three Shipman requirements continue to apply to petitions for writ of error coram nobis filed today. (Kim, supra, 45 Cal.4th at p. 1093; People v. McElwee (2005) 128 Cal.App.4th 1348, 1352.) "Because the writ of error coram nobis applies where a fact unknown to the parties and the court existed at the time of judgment that, if known, would have prevented rendition of the judgment, '[t]he remedy does not lie to enable the court to correct errors of law.' [Citations.] . . . [¶] For a newly discovered fact to qualify as the basis for the writ of error coram nobis, we look to the fact itself and not its legal effect.

  6. People v. Aguilar

    227 Cal.App.4th 60 (Cal. Ct. App. 2014)   Cited 37 times
    In People v. Aguilar (2014) 227 Cal.App.4th 60 (Aguilar) this Division held: "A writ of error coram nobis, based on a claim of ineffective assistance of counsel for failure to advise the defendant of the immigration consequences of his or her plea, cannot be used to challenge a conviction or withdraw the plea."

    The Supreme Court explained in People v. Kim that the modern writ of coram nobis is a nonstatutory remedy, with three requirements: The petitioner must show: (1) that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial, and which if presented would have prevented the rendition of the judgment; (2) that the newly discovered evidence does not go to the merits of issues tried (because issues of fact, once adjudicated, cannot be reopened except on motion for new trial); and (3) that the facts on which he relies were not known to him and could not reasonably have been discovered substantially before his motion for the writ. (Id. at p. 1093, 90 Cal.Rptr.3d 355, 202 P.3d 436, citing People v. Shipman (1965) 62 Cal.2d 226, 230, 42 Cal.Rptr. 1, 397 P.2d 993, and People v. McElwee (2005) 128 Cal.App.4th 1348, 1352, 27 Cal.Rptr.3d 448.) The court reaffirmed the longstanding rules that the coram nobis remedy “ ‘does not lie to enable the court to correct errors of law,’ ” and that it is not available where the defendant failed to use other available remedies to challenge the conviction, such as an appeal or a motion for a new trial.

  7. People v. Falcon

    G047031 (Cal. Ct. App. Apr. 30, 2013)

    We review denial of a petition for writ of error coram nobis for an abuse of discretion. (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 (McElwee).) Falcon pleaded guilty in the Florida federal case to conspiring to commit mail fraud and mail fraud (18 U.S.C. §§ 2, 371, 1341).

  8. People v. Mbaabu

    213 Cal.App.4th 1139 (Cal. Ct. App. 2013)   Cited 68 times
    In Mbaabu, we held the trial court there, as in this case, abused its discretion by granting a petition for writ of error coram nobis on the basis of ineffective assistance of counsel.

    A lower court's ruling on a petition for the writ is reviewed under the abuse of discretion standard. (People v. Kim (2009) 45 Cal.4th 1078, 1095–1096, 90 Cal.Rptr.3d 355, 202 P.3d 436; see also People v. McElwee (2005) 128 Cal.App.4th 1348, 1352, 27 Cal.Rptr.3d 448.) A motion to vacate the judgment is recognized as equivalent to a petition for the common law remedy of a writ of error coram nobis.

  9. People v. King

    No. C058671 (Cal. Ct. App. Jul. 20, 2009)

    [Citation.] The writ will properly issue only when the petitioner can establish three elements: (1) that some fact existed which, without his fault or negligence, was not presented to the court at the trial and which would have prevented the rendition of the judgment; (2) that the new evidence does not go to the merits of the issues of fact determined at trial; and (3) that he did not know nor could he have, with due diligence, discovered the facts upon which he relies any sooner than the point at which he petitions for the writ. [Citations.]’ [Citation.] ‘“The writ lies to correct only errors of fact as distinguished from errors of law. [Citation.]” [Citation.]’ [Citation.]” (People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 (McElwee).) Defendant asserts that the deferential abuse of discretion standard is inappropriate here, for two reasons: (1) We should exercise independent judgment “with regard to pure questions of law and in some circumstances, mixed questions of law and fact[.]”

  10. People v. Vasilyan

    174 Cal.App.4th 443 (Cal. Ct. App. 2009)   Cited 37 times
    In People v. Vasilyan (2009) 174 Cal.App.4th 443, a divided appellate panel followed Wallace to find that a defendant's plea to section 422.7, entered years earlier, was void.

    In Kim, the court held that claimed misunderstandings concerning deportation and other collateral consequences of a guilty plea were not cognizable on coram nobis. (Kim, at p. 1102; see also People v. McElwee (2005) 128 Cal.App.4th 1348, 1352 [ 27 Cal.Rptr.3d 448] [mistaken belief as to length of sentence]; People v. Ibanez (1999) 76 Cal.App.4th 537, 547 [ 90 Cal.Rptr.2d 536] [ignorance of possibility conviction will have civil consequences under Sexually Violent Predator Act].) Further, the trial court properly relied on Vasilyan's lack of diligence, which is an appropriate ground for denying coram nobis.