If the client is no longer in custody as a result of the conviction or sentence that must be vacated, or if a favorable decision is necessary sooner than the six months or so it may take to obtain an order by means of habeas corpus, counsel may attempt to do so 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.[111]

 

            This motion may be made on all habeas corpus grounds, but is not well-recognized as a proper vehicle even by which to attack a conviction or sentence.  Using it to attack a sentence requires another inference beyond existing case law. 

 

            Nonetheless, there is a powerful argument that California courts must entertain nonstatutory motions to invalidate particular stages of a criminal case, even entire criminal convictions or sentences, on constitutional grounds.  For example, in Murguia v. Municipal Court,[112] the Supreme Court stated:

 

Although no clear California statutory authority provides for such a pretrial motion to dismiss [on grounds of discriminatory prosecution], we have no doubt in light of the constitutional nature of the issue as to the trial court's authority to entertain such a claim.  (Accord, Jones v. Superior Court (1970) 3 Cal.3d 734, 738-739, 91 Cal.Rptr. 578 . . . ; People v. Coffey (1967) 67 Cal.2d 204, 215 and fn. 11, 60 Cal.Rptr. 457 . . . .)

 

This rule -- that constitutional violations must find a remedy even if no statute provides one -- has been specifically applied to claims of ineffective counsel.[113] See generally § § 6.44, et seq., infra.

 

            In People v. Borja[114] a California Court of Appeal held that a sentencing court lacked jurisdiction to grant a generic motion to modify a sentence, filed years after probation had expired, seeking to reduce the sentence of 365 days to 364 days nunc pro tunc in order to avoid deportation consequences.  According to the court, this was error because the court did not act to correct a clerical error, the normal basis for a nunc pro tunc action, and the fact that federal laws had changed was not a valid ground for altering the record of Borja's conviction and retroactively reducing his sentence. 

[111] See Chapter 6, supra.

[112] Murguia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 209 n.4

[113]  See, e.g., People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 861; see also Chapter 6, supra.

[114] People v. Borja (2002) 115 Cal.Rptr.2d 728, 95 Cal.App.4th 481.

Ninth Circuit

POST CON RELIEF " SENTENCE " GROUNDS " DOUBLE JEOPARDY
United States v. Brobst, 558 F.3d 982, 2009 WL 579585 (9th Cir. March 9, 2009)(vacating sentence, where concurrent sentences for child pornography possession and receipt violated the Double Jeopardy Clause).