1

Filed 9/21/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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,

v.

CESAR LOPEZ,

Defendant and Lopez.

 A159355

 (San Francisco County

 Super. Ct. No. 219514)

In February 2013, Cesar Lopez was charged by the San Francisco 

District Attorney with one count of felony stalking. (Pen. Code, § 646.9, 

subd. (a).)

1 After he pleaded not guilty, a jury convicted him of the charge on 

May 13, 2013. The court suspended sentence and granted Lopez probation on 

July 3, 2013. 

On August 18, 2015 we affirmed the judgment, rejecting Lopez’s claim

that his conviction was not supported by substantial evidence.

2 (People v. 

Lopez (2015) 240 Cal.App.4th 436, review den. Dec. 9, 2015.)

1 All statutory references are to the Penal Code.

2 Our 2015 opinion describes the facts of Lopez’s offense at considerable 

length. As the facts are not essential to our analysis here, suffice it to

summarize them as follows: Lopez’s 10-year obsession with his victim, Angie, 

began when she was 16 and he was about 26, and continued relentlessly for 

many years while she was a college student and thereafter, despite the 

assistance she obtained from the police and her repeated efforts to stop him.
2

On February 22, 2019, after he successfully completed five years of 

probation, Lopez filed a motion in propria persona3 to vacate his 2013 

conviction of felony stalking pursuant to section 1473.7, which allows persons 

“no longer imprisoned or restrained” to prosecute a motion to vacate a 

conviction or sentence if “[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 

Lopez told Angie he knew where she lived and where she went, and 

repeatedly refused to accept her attempts to end what he considered their 

relationship. After Angie ceased communicating with Lopez, he maintained a 

presence in her life by sending packages and oblique but ominous messages 

to her at her mother’s address. Lopez ignored Angie’s increasing pleas to 

leave her alone even after the intervention of the police. Although he never 

explicitly threatened her with violence, Angie testified that “she was ‘afraid 

for myself’ and ‘needed people around me to know what was going on. . . . I 

didn’t know what was going to happen and I felt in fear for my safety.’ ”

(People v. Lopez, supra, 240 Cal.App.4th at p. 445.) Angie repeatedly came 

across Lopez near her home and found him watching her from a distance or 

suddenly appearing close to her. (Id. at pp. 441–443.) In 2012, Lopez

constructed a large “labyrinth” in the shape of Angie’s face on Bernal Hill 

near her home, which “terrified” her. (Id. at pp. 439–440.) At this time,

Lopez sent her a link to a blog she interpreted as inviting her to meet him for 

a “healing ceremony” on Bernal Hill near the labyrinth, at 4:30 p.m., on a 

specified date. Knowing Lopez would continue harassing her despite the 

involvement of the police and her pleas that he stop, Angie experienced 

“ ‘intense anxiety and fear and a sense of hopelessness in the situation.’ ” 

(Id. at p. 444.) 

3 After the motion was filed, Lopez engaged private counsel to respond 

to the People’s opposition to the motion. However, shortly after private 

counsel filed that response, Lopez informed the court that he wished to again 

represent himself. After Lopez was advised of his right to court-appointed 

counsel and other constitutional rights, he signed a “Faretta Waiver,” 

indicating he had been advised by the court of his right to counsel and other 

constitutional rights and waived those rights. Lopez represented himself at 

the hearing on the motion without the assistance of counsel. 
3

adverse immigration consequences of a plea of guilty, or nolo contendere.”

(§ 1473.7, subd. (a)(1).) As amended, the statute states that “[a] finding of 

legal invalidity may, but need not, include a finding of ineffective assistance 

of counsel.” (Ibid.) Lopez’s motion asserts that he has “established by a 

preponderance of the evidence, that his defense attorney provided ineffective 

assistance of counsel at crucial stages of [the 2013] proceedings, thus 

damaging his ability to meaningfully understand, defend against, or 

knowingly accept the actual or potential adverse immigration consequences 

of his offered plea of guilty, leading to his detrimental decision to go to a 

high-risk jury trial.” 

Lopez’s motion to vacate his conviction was denied on the ground he 

understood the adverse immigration consequences of pleading not guilty and 

going to trial, and was therefore not prejudiced under section 1473.7. We 

shall affirm that ruling.

DISCUSSION

The Statutory Scheme

As we recently explained in People v. Rodriguez (2021) 68 Cal.App.5th

301 (Rodriguez), section 1473.7 was enacted in 2016 because the Legislature 

was concerned that noncitizens who were no longer in custody had no remedy 

for challenging convictions resulting from their entry of no contest or guilty 

pleas that, unbeknownst to them at the time, could adversely impact their 

immigration status. “For many years, adverse immigration consequences of 

guilty pleas were considered indirect or collateral matters, and thus trial 

courts were not required to advise defendants of them. [Citation.] In 1977 

the Legislature enacted section 1016.5 (added by Stats. 1977, ch. 1088, § 1), 

which requires trial courts to advise criminal defendants, ‘If you are not a 

citizen, you are hereby advised that conviction of the offense for which you 
4

have been charged may have the consequences of deportation, exclusion from 

admission to the United States or denial of naturalization pursuant to the 

laws of the United States.’ (§ 1016.5, subd. (a).) Defense attorneys, however, 

were still under no particular duty to discuss those potential adverse 

immigration consequences with their clients, although an affirmative 

misrepresentation about them could constitute ineffective assistance. 

[Citation.] . . .

“In 2010, the United States Supreme Court issued Padilla v. Kentucky

(2010) 559 U.S. 356 (Padilla). It held that an attorney is constitutionally 

ineffective under the Sixth Amendment if he or she fails to advise a clientdefendant of the actual or potential adverse immigration consequences of 

pleading guilty to a criminal charge. In 2015, the California Legislature 

enacted section 1016.3, which essentially codified the holding of Padilla by 

requiring defense counsel to ‘provide accurate and affirmative advice about 

the immigration consequences of a proposed disposition,’ and when consistent 

with the defendant’s informed consent and with professional standards, 

‘defend against those consequences.’ (2015 Stats., ch. 705, § 2, eff. Jan 1, 

2016.)

“In the meanwhile, however, the Supreme Court, in Chaidez v. United 

States (2013) 568 U.S. 342, had held Padilla is not retroactive. Thus, Padilla 

does not provide grounds for vacating a conviction that was final prior to 

2010 by a defendant who was not properly advised by counsel of the actual or 

potential adverse immigration consequences of a guilty or no contest plea.

“In 2016, the California Legislature adopted section 1473.7, effective 

January 1, 2017. Section 1473.7, subdivision (a) as originally written 

‘creat[ed] a mechanism to allow individuals who are no longer imprisoned to 

move to vacate a conviction or sentence on the ground that “[t]he conviction 
5

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 plea of 

guilty or nolo contendere.” ’ [Citations.] Former section 1473.7, subdivision 

(e)(1) provided (and continues to provide), ‘[t]he court shall grant the motion 

to vacate the conviction or sentence if the moving party establishes, by a 

preponderance of the evidence, the existence of any of the grounds for relief 

specified in subdivision (a).’ (Stats. 2016, ch. 739, § 1; § 1473.7, subd. (e)(1).) 

Further, ‘[i]f the court grants the motion to vacate a conviction or sentence 

obtained through a plea of guilty or nolo contendere, the court shall allow the 

moving party to withdraw the plea.’ (Stats. 2016, ch. 739, § 1; § 1473.7, 

subd. (e)(3).)” (Rodriguez, supra, 68 Cal.App.5th at pp. 308–309.)

Our opinion in Rodriguez also reiterated legislative declarations of the 

purpose of the foregoing legislation, which was “ ‘to “fill a gap in California 

criminal procedure” (Pub. Safety, Rep. on Assem. Bill No. 813, at p. 5) by 

providing a means to challenge a conviction by a person facing possible 

deportation who is no longer in criminal custody and thus for whom a petition 

for habeas corpus is not available: “California lags far behind the rest of the 

country in its failure to provide its residents with a means of challenging 

unlawful convictions after their criminal sentences have been served. . . . 

[¶] This omission has a particularly devastating impact on California’s 

immigrant community . . . . Many immigrants suffer convictions without 

having any idea that their criminal record will, at some point in the future, 

result in mandatory immigration imprisonment and deportation, 

permanently separating families. [¶] . . . . Challenging the unlawful criminal 

conviction is often the only remedy available to allow immigrants an 

opportunity to remain with their families in the United States. Yet, in 
6

California, affected individuals have no way of challenging their unjust 

convictions once probation ends, because they no longer satisfy habeas 

corpus’ strict custody requirements.” (Pub. Safety, Rep. on Assem. Bill 

No. 813 at pp. 4–5.) [The new legislation] ‘creates a new mechanism for postconviction relief for a person who is no longer in actual or constructive 

custody. Specifically, it allows a person to move to vacate a conviction due to 

error affecting his or her ability to meaningfully understand, defend against, 

or knowingly accept the actual or potential immigration consequences of the 

conviction.” ’ ” (Rodriguez, supra, 68 Cal.App.5th at p. 309, quoting People v. 

Fryhaat (2019) 25 Cal.App.5th 969, 976–977, citing Sen. Com. on Pub. Safety,

Rep. on Assem. Bill No. 813 (2015–2016 Reg. Sess.) June 22, 2015 [the bill 

that became former § 1473.7].)

Unlike the Padilla rule, section 1473.7 applies retroactively, allowing 

challenges to pleas entered into before the statute was adopted. (People v. 

Perez (2018) 19 Cal.App.5th 818, 824–829.) 

The Standard of Review

In People v. Vivar (2021) 11 Cal.5th 510 (Vivar), our Supreme Court 

adopted an independent standard of review for all claims—factual and 

legal—made pursuant to section 1473.7, subdivision (a)(1). Under that 

standard of review, “ ‘an appellate court exercises its independent judgment 

to determine whether the facts satisfy the rule of law.’ [Citation.]” Courts 

exercising such review should be mindful that “ ‘ “[i]ndependent review is not

the equivalent of de novo review . . . .” ’ [Citation.] An appellate court may 

not simply second-guess factual findings that are based on the trial court’s

own observations. [Citations.] . . . [F]actual determinations that are based 

on ‘ “the credibility of witnesses the [superior court] heard and observed” ’

are entitled to particular deference, even though courts reviewing such claims 
7

generally may ‘ “reach a different conclusion [from the trial court] on an 

independent examination of the evidence . . . even where the evidence is 

conflicting.” ’ [Citation.] In section 1473.7 proceedings, appellate courts 

should similarly give particular deference to factual findings based on the 

trial court’s personal observations of witnesses. [Citation.] Where, as here, 

the facts derive entirely from written declarations and other documents, 

however, there is no reason to conclude the trial court has the same special 

purchase on the question at issue; as a practical matter, ‘[t]he trial court and 

this court are in the same position in interpreting written declarations’ when 

reviewing a cold record in a section 1473.7 proceeding. [Citation.] Ultimately 

it is for the appellate court to decide, based on its independent judgment, 

whether the facts establish prejudice under section 1473.7.” (Vivar, supra,

11 Cal.5th at pp. 527–528.)

Accordingly, our determination whether the facts establish the 

prejudice required by section 1473.7 need not defer to the trial court’s 

interpretation of the written declarations and documents produced by the 

parties. As will be seen, Lopez’s request for an evidentiary hearing was 

denied and the motion to vacate was denied primarily on the basis of 

declarations and other written documents presented by Lopez and the People

prior to the hearing on the motion. However, denial of the motion also 

appears to have been based on the court’s personal observations of Lopez’s 

conduct and statements at the hearing on the motion, at which Lopez was 

representing himself. Thus, to some extent, the challenged ruling was made 

on the basis of the court’s assessment of Lopez’s personal credibility. 

Lopez’s Claims

Acknowledging that the text of section 1473.7 refers only to defendants 

who enter pleas, Lopez maintains that the relief provided by section 1473.7 
8

“is available for any defendant with immigration consequences attributable 

to a conviction that occurred due to an error in the plea process that damaged 

the defendant’s ability to make an intelligent choice on how to plead . . . 

regardless of whether their conviction arose from a plea of guilty or not 

guilty.” Lopez argues the statute must be interpreted in light of section 

1061.2, pointing to the observation in Vivar that the 2018 amendment to 

section 1473.7 (which expanded the category of defendants who could obtain 

relief by eliminating any requirement that the defendant establish ineffective 

assistance of counsel)4 “instructed courts to interpret section 1473.7 

‘consistent with the findings and declarations made in section 1016.2 . . . .’ 

(Stats. 2018, ch. 825, § 1, subd. (c).)” (Vivar, supra, 11 Cal.5th at p. 525.) 

Those findings and declarations articulate a purpose to “codify Padilla . . . 

and related California case law and encourage the growth of such case law in 

furtherance of justice.” (§ 1016.2, subd. (h).) Lopez argues the section 1016.2 

legislative declarations and findings constitute a legislative interpretation of 

the 2018 amendment of section 1473.7 to “expand upon” Padilla and related 

California cases holding that defense counsel must investigate and advise 

regarding immigration consequences of the available dispositions, and defend 

against adverse immigration consequences. (§ 1016.2, subd. (a).) In effect, 

Lopez argues that because the paramount consideration is providing non4 Initially section 1473.7 required moving parties who claimed 

prejudicial error as a result of erroneous or inadequate advice from counsel to 

show that counsel’s performance fell below an objective standard of

reasonableness under standards prevailing at the time of the conduct 

(Strickland v. Washington (1984) 466 U.S. 668, 690), as well as a reasonable 

probability of a different outcome if counsel had provided effective assistance. 

(People v. Camacho (2019) 32 Cal.App.5th 998, 1005.) However, in 2018, the 

Legislature amended section 1473.7, subdivision (a)(1), to read that a finding 

of legal invalidity due to prejudicial error “ ‘may, but need not, include a 

finding of ineffective assistance of counsel.’ ” 
9

citizen defendants “an accurate understanding of immigration consequences” 

(§ 1061.2, subd. (d)), it should not matter whether the defendant ultimately 

decides to enter a plea or go to trial; the defendant who, like Lopez, decides 

not to enter a plea has as much need of an accurate understanding of the 

immigration consequences as the defendant who decides to plead not guilty.5 

Indeed, Lopez contends that interpreting section 1473.7 as applicable to 

convictions resulting from a plea but not to convictions resulting from the 

verdict of a jury, would violate the equal protection clauses of the federal and 

state Constitutions. 

According to Lopez, the key inquiry in this case “is whether it is more 

likely than not, that the adverse immigration consequences could and would 

have been prevented, but for the plea-related error” he has raised. He argues 

the adverse immigration consequence of his conviction, deportation, “could 

and would have been prevented but for the error of trial counsel [Douglas] 

Welch in failing to barter for an immigration-safe alternative plea. It is 

undisputed that Welch made no such efforts, and that Lopez did not know of 

the option. It is also undisputed that, had Lopez elected to pursue an 

immigration-safe plea instead of going to trial, the San Francisco County 

District Attorney would have accommodated that goal.”

5 There are problems with these arguments. To begin with, neither 

Padilla nor the related California cases identified in subdivision (a) of section 

1016.2—i.e., People v. Soriano (1987) 194 Cal.App.3d 1470; People v. Barocio

(1989) 216 Cal.App.3d 99; and People v. Bautista (2004) 115 Cal.App.4th 

229—relate to section 1473.7 or the situation in this case or suggest a 

legislative intent to provide the benefits of section 1473.7 to defendants who 

do not enter pleas and are found guilty at trial. Moreover, as the People 

emphasize, defendants convicted at trial ordinarily have an appellate remedy 

and, if confined, can also obtain a remedy by means of the writ of habeas 

corpus. 
10

The immigration-safe plea Lopez says was available, which he claims 

he would have accepted if it had been offered, was to section 653m, making 

telephone calls with intent to annoy.

The Position of the People

The People have consistently maintained that section 1473.7 is 

inapplicable to Lopez’s situation because it makes no mention of defendants 

whose convictions resulted from a trial and provides protection only to 

defendants convicted on the basis of a plea, as defendants convicted by a trier 

of fact do not need the remedy provided by the statute. 

The Attorney General initially relies on the plain language of section 

1473.7, which provides only “two reasons to challenge a conviction or 

sentence: (a) prejudicial error damaging the moving party’s ability to 

meaningful understand, defend against, or knowingly accept the actual or 

potential adverse immigration consequences of a plea of guilty or nolo 

contendere (§ 1473.7, subd. (a)(1)); or (b) newly discovered evidence of actual 

innocence . . . .” (People v. Perez, supra, 19 Cal.App.5th at p. 826.) With 

respect to Lopez’s equal protection claim, the Attorney General contends 

defendants convicted as a result of a guilty plea are not similarly situated to 

those convicted by a jury, and section 1473.7 was designed only to protect the 

former.6 

6 The Attorney General also argues that Lopez could have raised this 

constitutional claim in the trial court and in his direct appeal, and his failure 

to do so forfeits the claim. Lopez concedes the “equal protection argument 

was not raised below,” but argues that it is “useful to the analysis at hand,” 

citing People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, for the 

proposition that “a defendant need not object if it would have been futile to do 

so,” and urges us to exercise our discretion to address the constitutional issue 

he raises for the first time on appeal. As will be seen, we find it unnecessary 

to decide the merits of the equal protection issue.
11

As the Attorney General sees it, section 1473.7 is “an outgrowth” of the 

requirement that the court and counsel advise those pleading guilty or no 

contest of the immigration consequences of their plea. Section 1016.5 

describes the advisements that must be given noncitizens who elect to accept 

plea offers and section 1473.7, provides a review process for such defendants 

who discover they were inadequately advised about immigration 

consequences only after they were released from custody. Unlike defendants 

who enter pleas, who generally cannot appeal their convictions, a defendant 

who is convicted after a trial can raise any issue about inadequate advice 

during plea negotiations on appeal. According to the Attorney General, 

defendants convicted after trial do not require the remedy provided by section 

1473.7, which is meant to enforce the protections afforded to defendants who 

elect to give up their right to trial and enter a plea of guilty or no contest. 

The Attorney General also points to the observation of the federal 

district court, in denying Lopez habeas relief in 2019, that “as [Lopez] 

concedes, his conviction for stalking is not an aggravated felony for 

immigration purposes” (Lopez v. Attorney General (N.D.Cal. Jan. 11, 2019)

No. 16-cv-02479) [2019 WL 11005488, *14]), and notes that Lopez was under 

an immigration hold even prior to his conviction due to having out-stayed his 

visa. 

Lopez Was Not Prejudiced Under Section 1473.7

As earlier noted, the prejudice Lopez claims arises out of “the error of 

trial counsel Welch in failing to barter for an immigration-safe alternative 

plea” to violation of section 653m. Lopez claims it is undisputed Welch made 

no such efforts, Lopez was ignorant of such an option, and if one had been 

found the district attorney would have accepted it. Lopez’s ultimate factual 

claims are that he “would have entered an immigration-safe plea instead of 
12

going to trial if he had known that option was available,” and that “the 

circumstances themselves corroborate that claim.”7

The circumstances established by the record clearly do not corroborate 

Lopez’s claims by a preponderance of the evidence. 

In a declaration attached to his opposition to Lopez’s motion, the 

prosecutor, Assistant Deputy Attorney Jerry P. Coleman, stated that he had 

examined the district attorney’s entire case file regarding Lopez’s 2013 trial 

and “could find no mention of any formal offer conveyed or refused, let alone 

any mention of annoying telephonic phone calls.” Deputy District Attorney 

Quigley, who was assigned to handle Lopez’s preliminary hearing in 2013, 

told Coleman that Lopez felt he should have been offered a plea to 

misdemeanor stalking in violation of section 653m by making annoying 

telephone calls. Quigley recalled “initial offer discussions with defense 

counsel concerning possible misdemeanor stalking,” but Quigley “never 

offered one or more pleas to misdemeanor annoying telephone calls” or any 

other offenses. Coleman stated at the hearing that “the only preliminary 

7 In support of this point, Lopez cites the following portion of Lee v. 

United States (2017) 582 U.S. ___, 137 S.Ct. 1958: “[C]ommon sense (not to 

mention our precedent) recognizes that there is more to consider than simply 

the likelihood of success at trial. The decision whether to plead guilty also 

involves assessing the respective consequences of a conviction after trial and 

by plea. [Citation.] When those consequences are, from the defendant’s 

perspective, similarly dire, even the smallest chance of success at trial may 

look attractive. For example, a defendant with no realistic defense to a 

charge carrying a 20-year sentence may nevertheless choose trial, if the 

prosecution’s plea offer is 18 years. Here, Lee alleges that avoiding 

deportation was the determinative factor for him; deportation after some time 

in prison was not meaningfully different from deportation after somewhat 

less time. He says he accordingly would have rejected any plea leading to 

deportation—even if it shaved off prison time—in favor of throwing a ‘Hail 

Mary’ at trial.” (Lee, at pp. 1966–1967.) 
13

discussions [Quigley’s] office engaged in prior to trial, were to a misdemeanor 

stalking charge, which at that time [unlike now] would have been 

immigration unsafe” so the plea discussions “never got beyond the very 

preliminary stage.”

Coleman further declared that Assistant District Attorney Karen 

Catalona, who prosecuted Lopez’s 2013 case, told him “she never conveyed 

any offer concerning misdemeanor annoying telephonic calls; further, it was 

her belief that defendant steadfastly maintained his innocence and wanted to 

pursue trial to a possible not guilty verdict so he could continue his one-sided 

relationship with the victim.” 

Coleman also stated in his declaration that he asked Welch, Lopez’s 

trial counsel in 2013, about remarks relating to immigration consequences 

which Lopez said Welch made at a Marsden hearing during the 2013 

proceedings, and that Welch confirmed having made the remarks. A 

reporter’s transcript of the Marsden hearing attached as an exhibit to 

Coleman’s declaration, shows that Welch understood that the immigration 

consequences of misdemeanor and felony stalking were then the same, and 

advised Lopez of those consequences. Welch stated at the Marsden hearing,

“At no point did I say anything other than a stalking conviction will have 

severe immigration consequences that will be deportable.” 

At the hearing on Lopez’s motion, Coleman emphasized that at the 

time of the preliminary hearing and trial, Lopez was knowledgeable about 

immigration issues because he was subject to a United States Immigration 

and Customs Enforcement (ICE) hold for overstaying the time specified in his 

visa. Coleman told the court that Lopez “went to trial because he felt he was 

not guilty and he believed the acts were not criminal, but fully knowing that 

he might well be deported after that trial.” 
14

Lopez did not present any evidence that conflicted with any of the 

prosecutors’ statements described in Coleman’s declaration. However, in a 

declaration, Lopez represented that “trial counsel, Douglas Welch, only 

mentioned the offered disposition once during the preliminary hearing held 

on January 28, 2013, by saying the following: ‘the prosecution is offering a 

misdemeanor of making annoying calls and emails plus a 10-years 

restraining order . . . . But I don’t know the immigration consequences of it.’ ” 

Lopez’s declaration went on to say, “I was definitively never informed about a 

misdemeanor stalking offer, if any. Trial counsel never advised me about 

consequences of any disposition, nor to plead guilty as most defendants are 

advised to avoid a harsher sentence and jail time.” Lopez acknowledged, 

“[a]ll I knew then was that a stalking felony conviction was likely deportable 

and carried from 1 to 3 years of jail/prison time, potential probation.” 

Lopez’s claims that he was or might have been offered an immigrationsafe plea to violation of section 653m are not independently corroborated and

are inconsistent with the undisputed statements of the multiple deputy 

district attorneys who dealt with him after he was arrested and charged, set 

forth in Coleman’s declaration. Moreover, the evidence the prosecution 

presented shows that, despite defense counsel’s admonition that a not guilty 

plea might result in deportation, Lopez had no interest in an immigrationsafe plea. He knowingly pled not guilty in order to satisfy his desire to prove 

his innocence and thereby hopefully restore a relationship with Angie. 

Indeed, that knowing plea of not guilty is shown not only by the evidence 

produced by the prosecution, but by Lopez’s own statements in open court.

Near the end of the December 2, 2019 hearing, the court suggested 

Lopez respond first to the prosecutor’s argument that section 1473.7 relates 

only to defendants who enter guilty pleas, and “doesn’t talk about defendants 
15

who elect to go to trial.” Moreover, the court added, “even if it did, can you 

credibly say that you didn’t understand the immigration consequences of 

your choice to go to trial?” Lopez indicated that he could do so, and asked the 

interpreter present to read to the court a statement he had prepared in 

Spanish, which the interpreter read to the court in English. 

The statement, which consumes almost five pages of the reporter’s 

transcript, ignored the two issues in which the court expressed interest—the 

apparent application of the statute only to guilty pleas and the credibility of 

Lopez’s claim he was ignorant of the adverse immigration consequences—but 

focused instead on the reasons Lopez felt he had been wrongly convicted and 

the justice he sought. The most salient portions of the statement are as 

follows:

“ ‘My stalking charge originated from unresolved personal issues and 

depression, when I acted out of obsessive and harassing on an ex-friend of 

mine and I got a deserved arrest and a civil stay-away order. However, what 

ensued after the charge was dismissed and refiled was unnecessary on so 

many levels, but a safe misdemeanor plea deal would have sufficed to me if 

advised.

“ ‘My conduct did not endanger anybody since there was not any actual 

threat, sexual, or violent behavior involved. There is a big difference when 

you act with malicious intent than when your intent is construed as a 

subjective inferred threat out of a course of expressive conduct and a 

contradictory inflammatory stalking narrative out of revenge.

“ ‘If you have a glance at my case, it’s evident that I was denied the 

right to free speech, to liberty, to privacy, to bail out, to Miranda, to efficient 

counsel assistance, to speedy fair trial, to testify, to self-representation and 

equal protection.’ ” In closing, Lopez “ ‘respectfully request[ed] this court to 
16

not prejudice my case for reasons of my self-representation and personal 

background in order to make a fair decision Because if my motion gets 

granted, aside from vindicating natural rights and vindicating an unlawful 

stalking precedence, which is a necessary 1473.7 precedent, this court will 

further the transparency and fairness of the state justice system, which is 

what the Legislature and the city have been diligently working on over the 

last five years.’ ”

Near the end of the lengthy statement Lopez asserted, “[w]hether 

counsel deliberately misadvised defendant to force a trial is unclear. 

However, the result was the same; an unfair jury trial in which he became 

the target of constant attacks to his personal and moral integrity from 

witnesses and prosecutors attempting to demonize him and his artistic 

expressive conduct, absent a credible threat and most elements of stalking 

offense. While trial counsel omitted meritorious claims and made egregious 

tactical errors which undermined his defense, thus heavily leaning the 

balance towards a guilty verdict. All of which played against defendant at a 

disastrous sentence hearing where he was called an ‘extreme narcissist’ due 

to all the misinformation from trial, pre-sentence report and victim impact 

statement, causing to have all his pre-judgment motions and affidavit 

declaration of facts overlooked and summarily denied.”

Unpersuaded by Lopez’s attempt to exonerate himself, the court 

observed that he failed to explain why section 1473.7 should apply to a 

defendant like him who did not plead guilty, and “I haven’t heard anything in 

that very, very lengthy statement, or anyplace else, that tells me that you 

didn’t know what the immigration consequences were as opposed to you don’t 

think that they should be what they are.” The court allowed that Lopez “may 

be right about what the law should be, . . . but under the law as it is—and I’m 
17

obligated to apply the law as it is—you are not entitled to section 1473.7 

relief.” 

Lopez’s only effort to persuade the trial court that section 1473.7 should 

be deemed applicable to defendants convicted after pleading not guilty 

consisted of the following disquisition on “the spirit of the statute”: “[D]ating 

back to the time of Christ, there has always been a vigorous debate at the 

foundation and source of the Western legal tradition pitting ‘the spirit of the 

law’ versus ‘the plain language of the law.’ . . . In general, when one obeys 

. . . the spirit of the law but not the letter, one is doing what the authors of 

the law intended, though not necessarily adhering to the literal wording.” 

According to Lopez, the spirit of section 1473.7 “provides a remedy for those 

immigrant defendants previously without a remedy. In this case, defendant 

was mis-advised and ill-informed as to the immigration consequences of 

accepting a deal versus going to trial and losing. There is no evidence that 

his counsel ever zealously protected the defendant from negative immigration 

consequences by investigating an immigration-safe resolution, by alerting the 

district attorney as to his immigration concerns for his defendant, or by doing 

his due diligence in investigating the consequences to his immigration 

status.” 

The court rejected this argument because it found no evidence Lopez 

was “misadvised and ill-informed.” As we have said, according to the 

undisputed statements of the multiple deputy district attorneys who dealt 

with Lopez after he was arrested and charged, he had no interest in pleading 

guilty to an immigration-safe offense. Lopez’s overarching desire was to

prove his innocence of the charged offense, and in order to achieve that goal,

he knowingly accepted the possibility of deportation, of which he was advised 

by his counsel.
18

The court observed that Lopez’s statement expressed “your frustrations 

with the criminal justice process” and your disappointment “about the fact 

that you have not been able to get your conviction overturned,” but “I can’t 

award section 1473.7 relief to someone who in no way seems to have been 

prejudic[ed], . . . meaning that you couldn’t knowingly and meaningfully 

defend against the consequences of your plea” because “you didn’t plead.”

Additionally, the court noted that Lopez was at all material times 

subject to an ICE hold for overstaying the time prescribed by his visa. “You 

were living immigration consequences at that time, right? So, . . . your 

situation is just not what this statute contemplates.”

The court denied Lopez’s request for an evidentiary hearing because “I 

don’t know what the hearing would be on. You have done nothing at the 

threshold that tells me that we’re even in the universe of section 1473.7.” 

At the close of the hearing on the motion, the court told Lopez it denied

relief “because you were not a defendant who was not meaningfully advised 

of the immigration consequences of your plea or anything else that you were 

doing. [¶] The only facts in the record that I can see that relate to a plea 

which you chose not to take are your former lawyer saying he advised you 

about the immigration consequences of stalking and at the time [the 

immigration consequences] were the same, felony or misdemeanor . . . .” The 

court said it could not find Lopez was prejudiced by an error of counsel “in 

light of the fact that attorneys are swearing under penalty of perjury that an 

offer to you was never on the table. [¶] Your lawyer doesn’t need to tell you 

about an offer that the People are not willing to make.”

A defendant who pled guilty demonstrates prejudice caused by 

counsel’s performance in advising him or her to enter the plea “by 

establishing that a reasonable probability exists that, but for counsel’s 
19

incompetence, he would not have pled guilty and would have insisted, 

instead, on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230, 253, 

accord, In re Alvernaz (1992) 2 Cal.4th 924, 934.) Lopez’s different theory is

that he can demonstrate prejudice by establishing a reasonable probability 

that, but for counsel’s incompetence, he would not have pled not guilty and 

gone to trial, but instead would have insisted on accepting the plea offered by 

the People. We agree with the trial court that this claim cannot succeed, for 

the evidence shows Lopez was never offered a plea, much less an 

immigration-safe one.

We need not determine whether there are circumstances in which a 

defendant who was convicted after pleading not guilty and going to trial can 

have that conviction vacated under the principles embodied in section 1473.7. 

Such circumstances are clearly not present in this case. Accordingly, it is not 

necessary for us to resolve whether section 1473.7 applies to defendants 

convicted after trial, as Lopez contends.

The judgment is affirmed.
20

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Stewart, J.

People v. Lopez (A159355)