People v. Lopez CA1/2

Filed 1/27/23 P. v. Lopez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A165488 v. JOSE LOPEZ, (San Francisco County Super. Ct. No. SCN219514) Defendant and Appellant.

In this third appeal since his 2013 jury conviction for felony stalking (Pen. Code, § 646.9, subd. (a)),1 Jose Lopez argues that recent amendments by the Legislature to section 1473.7 require that his conviction be vacated. In a nutshell, section 1473.7 permits a defendant who pleads guilty to, or is convicted of, a crime with adverse immigration consequences to move to set aside the conviction if he or she did not understand those consequences because they received bad advice (or no advice at all). The first time Lopez raised section 1473.7, we disagreed with him in an unpublished opinion, People v. Lopez (Sept. 21, 2021, A159355). The evidence showed the People never offered Lopez a plea, let alone an “immigration safe” plea. Lopez did not accept, or even have to consider, a plea deal unaware of

All further statutory references are to the Penal Code unless 1

otherwise indicated. 1

the immigration consequences. He did not suffer prejudice based on his alleged lack of understanding the immigration consequences of a potential plea. Lopez now returns to argue that the Legislature’s recent amendment to section 1473.7, which took effect in January 2022, requires that we reach a different result. (Stats. 2021, ch. 420, § 1.) Lopez is wrong and section 1473.7 is still not available to him. Lopez also appeals the trial court’s decision denying his “motion to dismiss under section 1001.36.” Section 1001.36 implements pretrial diversion in cases involving mental health concerns. Pretrial diversion was not available to Lopez and section 1001.36 does not provide any basis to dismiss his conviction. Lopez’s appointed appellate counsel filed a brief raising no issues, as permitted by People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Lopez submitted a supplemental brief in pro. per., arguing that the trial court erred in denying his motions. Lopez specifically contends that (1) section 1473.7, as amended, entitles him to relief; (2) his absence at the hearing on the motion—due to his belief that it started at a different time—deprived him of his statutory right to a hearing on the merits; and (3) the court was “biased” by its denial of his first section 1473.7 motion and misunderstood his second motion, which “incorporated new claims, clarified and reinforced old claims and introduced supporting case law and evidence that was not properly presented or available earlier.” We disagree and affirm. BACKGROUND Lopez was charged with felony stalking in 2013. In summary, Lopez had a years-long obsession with the victim, who was approximately 10 years younger than Lopez and a minor when they met. Lopez built a stone