People v. Lopez

Filed 7/22/15 Unmodified opinion attached CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040726 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1235752, C1242237)

v. ORDER MODIFYING OPINION JOHN ANTHONY LOPEZ, AND DENYING REHEARING

Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on June 29, 2015, be modified as follows: On page 4, last paragraph, delete the following sentences: Furthermore, it is not our place to remand this matter to the trial court and direct that a hearing be held under section 1170.18. A section 1170.18 petition must be filed once the judgment is final and the jurisdiction over the cause has been returned to the trial court. Replace with: Furthermore, since we have expedited and decided this appeal jurisdiction over this matter will be returned to the trial court upon issuance of the remittitur. Appellant can then file his petition pursuant to section 1170.18 for recall of sentence.

The petition for rehearing is denied. There is no change in judgment.

Dated: __________________________ ELIA, J.

Rushing, P.J.

Filed 6/29/15 Unmodified opinion CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H040726 (Santa Clara County Plaintiff and Respondent, Super. Ct. Nos. C1235752, C1242237)

v.

JOHN ANTHONY LOPEZ,

Defendant and Appellant.

In this appeal from two cases filed in the Santa Clara County Superior Court, appellant John Anthony Lopez requests that we reverse the judgments and remand the case to the trial court with instructions to hold a hearing pursuant to Penal Code section 1170.18.1 For reasons we shall explain we decline to reverse the judgment. Background On December 6, 2012, the Santa Clara County District Attorney’s Office filed an information in case No. C1242237 charging appellant with felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); being under the influence of methamphetamine, a misdemeanor (Health & Saf. Code § 11550, subd. (a)); possession of drug paraphernalia, a misdemeanor (Health & Saf. Code former § 11364.1, Stats. 2011, ch. 738, § 11); and possession of less than 28.5 grams of marijuana, an infraction (Health & Saf. Code § 11357, subd. (b)). Subsequently, on December 12, 2012, the district attorney’s office filed an information in case No. C1235752 in which appellant was charged with felony 1 Originally, counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Subsequently, on January 14, 2015, we granted counsel’s request to file a supplemental brief to address Proposition 47 sentencing.