People v. Lopez CA1/2

California Court of Appeal Feb 6, 2023 No. A165488MUnpublished

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Holding. The court held that the defendant failed to establish prejudicial error under Penal Code section 1473.7 because no immigration-safe plea was ever offered to him, and that Penal Code section 1001.36 does not provide a basis to dismiss a conviction after a trial and completed probation.

Issues

Whether the 2022 amendments to Penal Code section 1473.7 entitle the defendant to vacate his conviction.
Whether the trial court erred in denying the defendant's motion to dismiss under Penal Code section 1001.36.
Whether the defendant was deprived of his right to a hearing on the merits due to his absence at the scheduled hearing time.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Lopez is wrong and section 1473.7 is still not available to him.”

“Pretrial diversion was not available to Lopez and section 1001.36 does not provide any basis to dismiss his conviction.”

“We conclude Lopez failed to meet his burden to demonstrate, by a preponderance of evidence, that he was entitled to relief under section 1473.7.”

Filed 2/6/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. (San Francisco County Super. Ct. CESAR LOPEZ, No. SCN219514) Defendant and Appellant. ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

BY THE COURT: It is ordered that the opinion filed herein on January 27, 2023, be modified as follows: In the caption on page one, and on line two of the same page, the name Jose Lopez is corrected to read Cesar Lopez. There is no change in judgment.

Dated: _________________________ Stewart, P.J.

Filed 1/27/23 P. v. Lopez CA1/2 (unmodified opinion) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

People v. Lopez CA1/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

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