People v. Lopez CA1/2 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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unpublished opinion, People v. Lopez (Sept. 21, 2021, A159355).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
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otherwise indicated.
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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
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labyrinth in her image and relentlessly sent communications to the victim
despite her repeated efforts to stop him and even after police intervention.
After pleading not guilty, a jury convicted Lopez as charged. The court
suspended imposition of sentence and granted probation for five years. Lopez
appealed, arguing there was insufficient evidence to support the conviction.
We affirmed in People v. Lopez (2015) 240 Cal.App.4th 436.
In 2019, after completing his five-year probation term, Lopez filed a
motion to vacate his conviction pursuant to former section 1473.7. Former
section 1473.7 allowed a person “no longer imprisoned or restrained” to argue
that a conviction was legally invalid “due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences
of a plea of guilty, or nolo contendere.” (Former § 1473.7, subd. (a)(1).) Lopez
claimed, among other things, that his trial counsel had failed to barter for an
immigration-safe alternative plea to section 653m (making annoying
telephone calls). The trial court denied the motion. Lopez filed his second
appeal.
We affirmed the ruling in People v. Lopez, supra, A159355. We
explained it was unnecessary to decide whether there are circumstances
under which former section 1473.7 could apply to a defendant convicted after
pleading not guilty because those circumstances were not present in this
case. Declarations from prosecutors and representations made by Lopez’s
trial counsel to the court showed there had been discussion of a possible
misdemeanor stalking plea, not a section 653m plea. Ultimately, prosecutors
never offered the plea and, at the time, it would have been an immigration
unsafe plea.
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The Legislature amended section 1473.7 in late 2021 and the
amendment became effective in January 2022. (Stats. 2021, ch. 420, § 1.) It
now provides, in relevant part: “A person who is no longer in criminal
custody may file a motion to vacate a conviction or sentence” where “[t]he
conviction or sentence is legally invalid due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences
of a conviction or sentence. A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)
The moving part must establish entitlement to relief by a preponderance of
the evidence. (Id., subd. (e)(1).)
Lopez filed a second section 1473.7 motion in March 2022. He
simultaneously filed a motion to dismiss pursuant to section 1001.36, which
provides for the dismissal of criminal charges following satisfactory
performance in a pretrial mental health diversion program. The motions
were noticed for April 20, 2022 at 9:00 a.m. The matter was called at 9:35
a.m. that day. Lopez was not present. Lopez later said he thought the
hearing would be at 10:30 a.m. because that had been the time of the hearing
on his first section 1473.7 motion back in 2019.
The trial court stated that it had reviewed the extensive briefing and
was prepared to rule on the matter without oral argument. It explained that,
while the amendment to section 1473.7 now permitted a defendant convicted
after jury trial to make such a motion, there was no basis to vacate the
conviction under section 1473.7 because the record established that Lopez
was never offered an immigration safe plea. The court denied the motion
with prejudice, stating that it had “been heard too many times with the same
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set of facts.” The trial court also concluded there was no basis to hear the
motion to dismiss.
This third appeal followed.
DISCUSSION
We begin with the scope and standard of review. Independent judicial
review pursuant to People v. Wende (1979) 25 Cal.3d 436 is required only as
to “a defendant’s first appeal as of right.” (People v. Kelly (2006) 40 Cal.4th
106, 119–120 (Kelly).) The procedure to resolve all future criminal appeals
arising from proceedings other than the first appeal of right is outlined in
Serrano: where appointed counsel finds no arguable issues, counsel will
inform the court and file a brief setting forth the applicable facts and law.
(Serrano, supra, 211 Cal.App.4th at p. 503.) The defendant must then be
informed of his or her right to file a supplemental brief. (Ibid.) If the
defendant files a supplemental brief, we must evaluate the specific
arguments presented in that brief and issue a written opinion. (People v.
Delgadillo (2022) 14 Cal.5th 216, 232.)
Lopez’s supplemental brief here presents three specific arguments
challenging the denial of his second section 1473.7 motion. As resolution of
this motion was based on documentary evidence (including exhibits filed by
both Lopez and the People), we evaluate those arguments exercising our
independent judgment to determine whether the facts establish prejudicial
error under section 1473.7. (People v. Vivar (2021) 11 Cal.5th 510, 528
(Vivar).) Lopez’s supplemental brief mentions section 1001.36, primarily in
connection with his arguments concerning section 1473.7, and we address his
argument about section 1001.36 as best as we can discern it.
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I. No Prejudicial Error Under Amended Section 1473.7
Lopez argues that he is entitled to relief under section 1473.7, as
amended, based on prejudicial error affecting his ability to understand and
defend against the adverse immigration consequences of his conviction.
Lopez reasserts many of the same factual allegations that he raised and that
were rejected in his 2019 motion and 2021 appeal. First, he contends that his
trial counsel did not properly advise him of the immigration safe plea offered
by the prosecution. As we explained in People v. Lopez, supra, A159355,
however, the evidence showed no plea (immigration safe or otherwise) was
ever offered. (See also In re Alvernaz (1992) 2 Cal.4th 924, 945 [rejecting
petitioner’s self-serving statement about plea bargain where insufficiently
corroborated by independent, objective evidence].)
Lopez alternatively argues that, assuming there was no immigration
safe plea, his trial counsel should have negotiated for one and the People
should have offered one. Lopez offers no authority that supports this
position. On the contrary, section 1016.3, subdivision (b) requires only that
the prosecution “consider the avoidance of adverse immigration consequences
in the plea negotiation process as one factor in an effort to reach a just
resolution.” Lopez has not shown that, but for his counsel’s alleged
incompetence, it was reasonably probable that he would have received an
immigration safe plea. (Vivar, supra, 11 Cal.5th at p. 529 [applying
reasonable probability standard to prejudicial error analysis].) Nor has
Lopez presented any evidence that he had reason to expect or hope that an
immigration safe plea could have been negotiated. (Ibid. [court should
consider “ ‘evidence that would have caused the defendant to expect or hope a
different bargain would or could have been negotiated’ ”].) Instead, citing the
risk to public safety, the prosecution did not offer an immigration safe plea
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and was only willing to discuss a misdemeanor stalking plea, which is not
immigration safe. Discussions did not advance beyond a preliminary stage.
Lopez alleges next that his trial counsel did not sufficiently negotiate
for or advise him of a possible misdemeanor stalking plea. Again, the
prosecution never actually offered any plea to Lopez, and there is no basis to
conclude it was reasonably probable that one would have been offered absent
his trial counsel’s purported error. Even if it was offered, it was not an
immigration safe plea at the time and cannot support a determination that
Lopez suffered prejudicial error.
Finally, Lopez contends that his counsel did not properly advise him of
the law on stalking, which he characterizes as “virtually uncontestable,” and
the risk of his decision to go to trial, which he characterizes as
“insurmountable” because of “harmful” and “exacerbated” witness
statements. The evidence shows that trial counsel “advised [Lopez] of
immigration consequences regarding the stalking” and “[a]t no point did [he]
say anything other than [that a] stalking conviction will have severe
immigration consequences that will be deportable.”
Lopez’s contentions regarding the weaknesses of his criminal case do
not alter our section 1473.7 analysis. While Lopez understandably may have
wanted “the opportunity to choose another disposition” that did not have
adverse immigration consequences, the record reflects that such choices were
not available to him. There is no evidence that he was deprived of
immigration safe choices because of prejudicial error. 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.
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II. Hearing on Second Section 1473.7 Motion
Lopez argues that the trial court deprived him of his right to a hearing
on the merits. Section 1473.7, subdivision (d) provides that all such motions
“shall be entitled to a hearing.”
Lopez claims that he missed the hearing because he believed it would
start around 10:30 a.m., the same time as the hearing on the first motion.
But Lopez filed his motion in pro. per. and noticed the motion for April 20 at
9:00 a.m. We see no basis to reverse the ruling based on Lopez’s unexcused
failure to appear at the noticed time. Nor is this a situation like People v.
Singh (2022) 81 Cal.App.5th 147, which remanded the matter for further
consideration because the trial court denied defendant’s motion without
addressing the merits. (Id. at p. 154.) Here, the trial court explained at the
hearing that it had reviewed the extensive briefing, found no basis to vacate
the conviction under section 1473.7, and denied the motion. We conclude
there was no error in deciding Lopez’s motions when and as the trial court
did.
III. First versus Second Section 1473.7 Motion
Lopez argues that the trial court was “biased” because it denied his
first section 1473.7 motion. He also argues the trial court was “more
predisposed” to deny his second motion because the People’s opposition
incorrectly stated that the motion had already been heard twice before
(instead of once). Lopez also argues that the trial court misunderstood his
second motion, which was not a rehash of the first motion but “incorporated
new claims, clarified and reinforced old claims and introduced supporting
case law and evidence that was not properly presented or available earlier.”
We are not persuaded that any bias or misunderstanding existed here.
We have exercised our independent judgment to conclude Lopez failed to
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demonstrate he is entitled to relief under section 1473.7 on his second
motion. (Vivar, supra, 11 Cal.5th at p. 528.) As described above, we agree
with the trial court that Lopez relied on many of the same factual assertions
in both motions and that the recent amendment to section 1473.7 does not
change the outcome here. To the extent Lopez may have articulated new
claims in his second motion (like the alleged failure of counsel to advise him
on the law of stalking), we have rejected those claims.
Lopez has not cited any authority that alters our conclusion. In Vivar,
for example, the defendant accepted a felony drug possession plea but was
never advised by his counsel that the plea would warrant immediate
deportation. (Vivar, supra, 11 Cal.5th at p. 522.) Unlike Vivar, the evidence
here shows that Lopez’s counsel advised him of the immigration
consequences of a stalking conviction. In Lafler v. Cooper (2012) 566 U.S.
156, the defendant went to trial after declining plea deals despite initially
expressing willingness to accept. (Id. at p. 161.) It was conceded that this
decision was due to ineffective assistance of counsel during the plea
negotiation process. (Id. at p. 166.) In re Alvernaz also involved a defendant
who had rejected an offered plea and gone to trial. (In re Alvernaz, supra,2 Cal.4th at p. 945 [concluding defendant failed to establish prejudice because
evidence showed his decision to go to trial was motivated by persistent,
strong, and informed hope for exoneration at trial].) Unlike Lafler and
Alvernaz, the evidence here shows that Lopez was never offered any plea and
there is nothing to support his claim that he should have received an
immigration safe plea.
In sum, we conclude that the trial court did not err in denying Lopez’s
second section 1473.7 motion with prejudice.
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IV. The Section 1001.36 Motion
The trial court concluded that Lopez’s motion to dismiss pursuant to
section 1001.36 had no basis. Lopez mentions section 1001.36 in his
supplemental brief in passing, but he only argues that (1) he was denied a
hearing because of confusion concerning the hearing time, and (2) he has
been treating his mental health issues. We addressed Lopez’s argument
concerning why he missed the hearing above, and now turn to his remaining
argument.
Section 1001.36 concerns California’s pretrial diversion process for
“individuals with mental disorders.” (See § 1001.36, subd. (a).) Section
1001.36, subdivision (e), cited by Lopez, provides that “[a]t any stage of the
proceedings, the court may require the defendant to make a prima facie
showing that the defendant will meet the minimum requirements of
eligibility for diversion and that the defendant and the offense are suitable
for diversion.” The provisions of that subdivision have no applicability to
Lopez, given that the jury convicted him nearly a decade ago and his five-
year probation term has ended.
A different subdivision explains that where a defendant “has performed
satisfactorily in diversion, at the end of the period of diversion” the court
“shall dismiss the defendant’s criminal charges that were the subject of the
criminal proceedings at the time of the initial diversion.” (See § 1001.36,
subd. (h).) Lopez did not cite subdivision (h) to the trial court or on appeal,
but he did style his section 1001.36 motion as a “motion to dismiss.” That
said, subdivision (h) has no applicability here. The pretrial diversion
program did not exist in its present form when Lopez was charged with
stalking, and Lopez’s efforts to treat his condition(s) do not provide a basis for
his conviction to be dismissed.
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DISPOSITION
The judgment is affirmed.
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_________________________
Markman, J.*
We concur:
_________________________
Stewart, P.J.
_________________________
Richman, J.
People v. Lopez (A165488)
* Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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