People v. Bohmwald CA2/7 ( 2021 )

Filed 4/16/21 P. v. Bohmwald CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300743
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA068801)
v.
LINDSAY BOHMWALD,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
Sarvenaz Bahar, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriguez,
Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, and Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
In 2006 Lindsay Bohmwald, a native of Venezuela, pleaded
no contest to grand theft of access card information, a violation of
Penal Code section 484e, subdivision (d).1 Twelve years later, in
2018, Bohmwald filed a motion under section 1473.7 to vacate
her conviction and withdraw her plea. Bohmwald argued her
attorney in 2006 did not inform her of the immigration
consequences of her plea, which “damage[ed] her ability to
understand or defend against the adverse immigration
consequences of her plea.”
The superior court denied the motion. The court ruled
Bohmwald did not meet her burden to show by a preponderance
of the evidence she was entitled to relief under section 1473.7.
Bohmwald appeals, contending the court applied an incorrect
legal standard, failed to make a finding on whether her attorney
in 2006 properly advised her, and erred in concluding she did not
satisfy the requirements of the statute. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. 2006: Bohmwald Pleads No Contest to a Felony
In 2006 police arrested Bohmwald for driving a stolen car
and having in her possession checks that did not belong to her.
The People charged Bohmwald with receiving or concealing
stolen property, in violation of section 496, subdivision (a), and
acquiring or retaining possession of access card account
1 Statutory references are to the Penal Code.
2
information of another person with the intent to use it
fraudulently, in violation of section 484e, subdivision (d).2
At an early disposition hearing, Bohmwald’s attorney
informed the court that Bohmwald wanted to plead no contest to
violating section 484e, subdivision (d). The prosecutor stated the
terms of the plea agreement: The court would place Bohmwald
on formal probation for three years, and Bohmwald would
perform 60 days of community service and receive credit for the
time she had served in custody. Before the court accepted
Bohmwald’s plea, the prosecutor confirmed with her that she
wanted to proceed with her plea and asked Bohmwald a series of
questions. The prosecutor asked Bohmwald if she had an
opportunity to discuss her constitutional rights with her attorney,
if she understood those rights, and if she understood she had the
rights to a jury trial, to confront and cross-examine witnesses, to
present a defense and testify in her defense, to use the subpoena
power of the court, and to not incriminate herself. Bohmwald
answered “yes” to each of these questions.
After Bohmwald affirmed that she wanted to waive her
constitutional rights, the prosecutor admonished Bohmwald:
“There are certain consequences as a result of your plea. If you
are on probation or parole in any other matters, your plea today
will result in a violation of that probation or parole. You could
spend additional time in custody. If you are not a citizen of the
United States, your plea today will result in your deportation,
2 “[A]ccess card information [is] a term encompassing
information related to credit and debit cards, bank accounts, and
similar financial devices.” (People v. Liu (2019) 8 Cal.5th 253,
255-256.)
3
denial of naturalization and denial of reentry into the United
States.” The prosecutor asked, “Do you understand both of those
things, Ms. Bohmwald?” Bohmwald answered, “Yes.” The
prosecutor informed Bohmwald of the maximum term of
imprisonment Bohmwald would face if she violated the terms and
conditions of her probation, of her obligation to pay restitution,
and that she would have a felony conviction on her record. The
prosecutor asked Bohmwald, “Do you understand?” Bohmwald
answered, “Yes.”
Following the prosecutor’s admonitions and Bohmwald’s
responses affirming her understanding of each admonition,
Bohmwald pleaded no contest to violating section 484e,
subdivision (d). The trial court found Bohmwald’s waivers and
plea “were knowingly, intelligently, and freely made with an
understanding of the consequences.” The court found Bohmwald
guilty of violating section 484e, subdivision (d), and dismissed the
charge under section 496, subdivision (a), “pursuant to the plea
agreement.”
B. 2007: Bohmwald Pleads No Contest to Another
Felony
Sixteen months later, in 2007, police arrested Bohmwald
after finding stolen property in her car. Bohmwald pleaded no
contest to a felony charge of violating section 496, subdivision (a).
Bohmwald also pleaded no contest to a misdemeanor charge of
grand theft (§ 487, subd. (a)) in another case.
4
C. 2018: Bohmwald Files a Motion Under Section
1473.7 To Vacate Her 2006 Conviction
In 2018 Bohmwald filed a motion under section 1473.7 to
vacate her 2006 conviction. Bohmwald argued that her court-
appointed attorney in 2006 did not advise her of the immigration
consequences of her plea and did not bargain with the prosecutor
for an “immigration safe plea,” that she “was deprived of effective
assistance of counsel,” and that “she would not have accepted her
defense attorney’s recommendation to plea to a violation
of . . . [section] 484e, [subdivision] (d), as a felony had she known
it would preclude her from obtaining US Citizenship and lead to
deportation with no ability to return to the United States.”3
Bohmwald submitted a declaration in support of her motion
stating that she was born in Venezuela, that when she was two
years old her parents brought her to the United States, and that
she obtained her green card in 2004. According to Bohmwald,
after the police arrested her in 2006, she spent 10 days in custody
and met her court-appointed attorney for the first time on the
3 Bohmwald also filed a motion under section 1016.5,
arguing that the trial court in her 2006 case failed to advise her
of the immigration consequences of her plea, which “prejudiced”
her. “[S]ection 1016.5 requires that before accepting a plea of
guilty or nolo contendere to any criminal offense, the trial court
must advise the defendant that if he or she is not a United States
citizen, conviction of the offense may result in deportation,
exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.”
(People v. Martinez (2013) 57 Cal.4th 555, 558; see § 1016.5,
subd. (a).) It does not appear the superior court ruled on the
motion under section 1016.5, and Bohmwald does not argue that
her 2006 conviction should be vacated because the trial court
failed to advise her of the immigration consequences of her plea
under section 1016.5.
5
day she entered her no contest plea. She stated her attorney
never spoke to her about the immigration consequences of her
plea, did not inquire about her immigration status, and did not
bargain with the prosecutor for an “alternate offer” or “an
immigration safe plea.” Bohmwald assumed her attorney did not
ask her about her immigration status because “most people
assume[ed] [she was] Caucasian due to [her] light complexion,
the sound of [her] name, and [her] ability to speak perfect
English.” Bohmwald said that, had her attorney advised her of
the “devastating immigration consequences upon entering this
plea,” she “would have sought another alternative plea and/or
taken [her] case to trial. Under no circumstances would [she]
have agreed to accept a deal that would strip [her] of [her] ability
to remain” in the United States. Bohmwald explained that, when
she applied for United States citizenship in 2018, she learned her
2006 felony conviction precluded her from becoming a citizen and
subjected her to “removal/deportation, permanent banishment
from the United States, and exclusion from admission.”
At the hearing on the motion, Bohmwald repeated most of
the assertions in her written declaration. On cross-examination,
Bohmwald testified she did not recall the prosecutor asking her
questions before the court accepted her plea or advising her of her
right to a jury trial and the immigration consequences of her
plea. When the prosecutor at the hearing asked Bohmwald
questions about the stolen checks and other aspects of the
underlying crime, counsel for Bohmwald objected the questions
were argumentative and beyond the scope of the motion. The
court overruled the objections, stating that the questions were
6
“testing her credibility” and that “it’s interesting to the court as
to what she does and does not remember.”4
In response to questions by the superior court, Bohmwald
stated that she did not remember the prosecutor or the trial court
in 2006 advising her of her right to confront and cross-examine
witnesses, but that she did remember that either the prosecutor
or the court told her she had the right to remain silent.
Bohmwald testified the plea proceeding “was really fast” and “it
wasn’t really explained, especially immigration.” The court
stated, “I’m trying to . . . find out what you remember, though.”
Bohmwald also testified that, a little more than one year
after her 2006 plea, the police pulled her over as she was driving,
searched her car, and found a bag containing certain items that
did not belong to her. Bohmwald confirmed she pleaded no
contest to receiving stolen property in 2007.
Counsel for Bohmwald asked the court “to take into
consideration the individual’s subjective beliefs at the time of
plea” and to “interpret those [beliefs through] the lens of the
interest of justice.” Counsel for Bohmwald argued that in 2006
Bohmwald was 19 years old and that the immigration issue
“wasn’t crossing her mind.” Counsel for Bohmwald also stated
that the convictions in the 2007 cases had been vacated under
section 1016.5.
The prosecutor asked the court “to make a credibility
determination against” Bohmwald because the transcript of the
2006 plea proceedings showed that “she was specifically advised
of the immigration consequences” and that Bohmwald said “yes”
when asked if she understood. The prosecutor suggested that
Bohmwald’s ability to understand most of the advisements of her
4 Bohmwald denied the stolen checks and the bag containing
the checks belonged to her.
7
constitutional rights and the “things that occurred during the
plea” hearing, but not the advisement of the immigration
consequences of her plea, made her testimony “very suspect.”
The prosecutor argued that Bohmwald’s testimony was “not
credible and not trustworthy” and that, because “she admitted
she went to high school [and] spoke perfect English, it is
apparent . . . she knew the consequences of her plea.”
The court considered Bohmwald’s testimony, reviewed the
facts of the case, and stated, “In all candor this is probably one of
the hardest cases I’ve had to deal with in a long time.”
Addressing Bohmwald, the court stated that the statute put the
court “in a really bad position” as “the gatekeeper of what
happens to you and your family,” but that the court had to base
its decision “on what the law is.” After finding that Bohmwald’s
testimony about what she remembered was not accurate, the
court ruled Bohmwald had not met her burden to show by a
preponderance of the evidence that the court should vacate her
conviction. The court denied the motion “without prejudice,” and
Bohmwald timely appealed.
DISCUSSION
A. The Superior Court Did Not Apply an Erroneous
Legal Standard
Bohmwald contends “the trial court denied [her] motion
because it held that she had an affirmative duty to ask her
counsel to advise her on the immigration consequences of her
plea,” a duty that “[n]either the statute nor any of the cases
interpreting it” requires. The record does not support
Bohmwald’s contention.
8
1. Relevant Proceedings
The superior court made several comments at the hearing
to explain its reasons for denying Bohmwald’s motion to vacate
her conviction under section 1473.7. The court recognized that
Bohmwald had “every reason now to be telling” the court she did
not understand the consequences of her plea. The court also
stated it considered what Bohmwald remembered and what the
plea transcript showed the prosecutor told her (“You will be
deported”). The court pointed out that, two years before her 2006
conviction, Bohmwald knew her immigration status when she
obtained her green card. The court stated that, when the
prosecutor told Bohmwald that she would be deported, she should
have taken “some responsibility for that, and [said], ‘Wow, I
didn’t know that. . . . Wait, I want to talk to my attorney. I have
questions.’” The court said that Bohmwald instead stated, “I
understand.”
The court stated that Bohmwald made some “bad decisions”
in 2006, that she “wanted out of custody,” and that the plea “was
[her] way out.” The court said it understood why Bohmwald
“took this deal”: Had she “gone to trial, [she] definitely would
have been deported then,” and thus there were “some advantages
to being released immediately.” The court addressed Bohmwald:
“If I have to look back and try[ ] to encapsulate what your life was
in 2006, I think you were making some decisions that you
personally weren’t that concerned about being deported, or you
would have stopped committing crimes.”
Finally, the court commented on Bohmwald’s testimony:
“I am not . . . saying that you are a liar. But I don’t think that
you accurately remember what your attorney might have told you
about immigration consequences. You don’t have the benefit of
her testimony. You can’t just assume that you’re right and she
didn’t. . . . But in looking at what you do remember and what you
9
don’t remember, I am not sure that you are accurate when you
are saying . . . that she did not advise you of your consequences.”
The court stated that “maybe” Bohmwald’s attorney “skip[ped
the] part” about immigration consequences, but that Bohmwald
“had a chance to ask her, and . . . [she] didn’t do it on the other
cases either.”
2. The Court Did Not Condition Bohmwald’s
Entitlement to Relief on Whether She Sought
Advice from Her Attorney
Bohmwald argues the superior court “condition[ed]” her
entitlement to relief under section 1473.7 on whether she asked
her attorney about the immigration consequences of her plea.
Bohmwald focuses on two remarks the court directed to her at
the hearing: “But you had a chance to ask [your attorney], and
you didn’t do it on the other cases either,” and “I don’t know what
[your attorney] told you, but it’s the responsibility of you and
your attorney.” The record does not support Bohmwald’s
interpretation of these comments.
In the context of the entire colloquy, the two remarks
reflect the court’s rationale for questioning Bohmwald’s
recollection of the plea proceedings, not a condition for granting
relief under section 1473.7. The court found Bohmwald’s
testimony was not “accurate.” The court stated that, after
Bohmwald heard an admonition from the prosecutor that she
“‘will be deported,’” the court expected Bohmwald would have
asked to speak to her attorney; instead, Bohmwald stated she
understood the immigration consequences of her plea.
Bohmwald’s failure to ask her attorney about immigration
consequences was one of the reasons the superior court did not
credit her testimony, not something the court required her to
have done before she was entitled to relief. The court denied
10
Bohmwald’s motion because the court found she failed to meet
her burden “to show that [her] plea should be vacated under the
law.”
B. The Evidence Does Not Compel a Finding in
Bohmwald’s Favor
1. Applicable Law and Standard of Review
Section 1473.7, subdivision (a), provides in pertinent part:
“A person who is no longer in criminal custody may file a motion
to vacate a conviction or sentence for any of the following reasons:
[¶] (1) The 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
plea of guilty or nolo contendere. A finding of legal invalidity
may, but need not, include a finding of ineffective assistance of
counsel.” (See People v. Camacho (2019) 32 Cal.App.5th 998,
1009 [“Defendant was required . . . to show that one or more of
the established errors were prejudicial and damaged his ‘ability
to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of [his]
plea’”].) “‘[S]ection 1473.7 allows a defendant, who is no longer in
custody, to challenge his or her conviction based on a mistake of
law regarding the immigration consequences of a guilty plea or
ineffective assistance of counsel in properly advising the
defendant of the consequences when the defendant learns of the
error postcustody.’” (People v. Jung (2020) 59 Cal.App.5th 842,
854; see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1130.)
As the moving party, the defendant has the burden to show
“by a preponderance of the evidence that the plea was legally
11
invalid due to prejudicial error.” (People v. DeJesus, supra,
37 Cal.App.5th at p. 1133; see § 1473.7, subd. (e)(1).) “[T]o
establish a ‘prejudicial error’ under section 1473.7, a person need
only show by a preponderance of the evidence: (1) he did not
‘meaningfully understand’ or ‘knowingly accept’ the actual or
potential adverse immigration consequences of the plea; and
(2) had he understood the consequences, it is reasonably probable
he would have instead attempted to ‘defend against’ the charges.”
(People v. Mejia (2019) 36 Cal.App.5th 859, 862; see People v.
Bravo (2020) 58 Cal.App.5th 1161, 1170 [a defendant can show
prejudice by convincing the court that he or she “‘“would have
chosen to lose the benefits of the plea bargain despite the
possibility or probability deportation would nonetheless follow”’”],
review granted Mar. 24, 2021, S266777.)
Some courts have held the standard of review for a ruling
on a motion under section 1473.7 where the defendant seeks
relief based on statutory error is abuse of discretion.5 (See, e.g.,
People v. Perez (2020) 47 Cal.App.5th 994, 997; People v. Vivar
(2019) 43 Cal.App.5th 216, 224, review granted Mar. 25, 2020,
S260270;6 People v. Rodriguez (2019) 38 Cal.App.5th 971, 977.)
5 Bohmwald states she “is not basing her claim for relief on
the ineffective assistance of her plea counsel and is not
contending that counsel was ineffective.” Rather, Bohmwald
states her motion under section 1473.7 is based on “one or more
prejudicial errors” that “damaged her ability to understand or
defend against the actual or potential adverse immigration
consequences of her plea.”
6 The Supreme Court granted review to consider whether the
court of appeal erred in ruling the defendant failed to
demonstrate prejudice within the meaning of section 1473.7 from
12
Under this standard, “[t]he trial court’s factual findings are
reviewed under the substantial evidence standard while the trial
court’s legal conclusions are reviewed de novo. . . . [¶] . . . The
appellate court does not reassess witness credibility but defers to
the trial court’s credibility determinations.” (People v. Jung,
supra, 59 Cal.App.5th at p. 853.)
But where, as here, “‘the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. . . . [¶] Thus, where the issue on
appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.”’”
(Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013)
218 Cal.App.4th 828, 838; accord, St. Mary & St. John Coptic
Orthodox Church v. SBC Ins. Services, Inc. (2020) 57 Cal.App.5th
817, 828-829; see In re R.V. (2015) 61 Cal.4th 181, 201 [where a
party fails to meet its burden on an issue in the trial court, “the
inquiry on appeal is whether the weight and character of the
evidence . . . was such that the [trial] court could not reasonably
reject it”]; see, e.g., People v. Skinner (1986) 185 Cal.App.3d 1050,
1059 [because insanity is an affirmative defense, the defendant
has the burden to prove it by a preponderance of the evidence,
trial counsel’s failure to properly advise him of the immigration
consequences of his plea.
13
and “before we can overturn the trier of fact’s finding to the
contrary, we must find as a matter of law that the court could not
reasonably reject the evidence of insanity”]; see also In re Dennis
(1959) 51 Cal.2d 666, 674 [a jury finding that rejects a defense of
insanity should be reversed on appeal only when “the evidence is
uncontradicted and entirely to the effect that the accused is
insane”].)
2. Bohmwald Has Not Shown the Superior Court
Erred in Denying Her Motion
Bohmwald argues she “established that her plea counsel’s
errors damaged her ability to understand, defend against or
knowingly accept the adverse immigration consequences of her
plea.” Bohmwald cites her testimony that her attorney failed to
discuss immigration consequences with her and that “she had no
idea at the time of her plea that her plea would have any impact
on her immigration status.” Other evidence in the record,
however, refuted Bohmwald’s assertions, including the transcript
of the plea hearing, which showed the prosecutor specifically
warned her that, if she was not a citizen of the United States, her
plea would result in deportation, denial of naturalization, and
denial of reentry into the United States. When asked at the plea
hearing if she understood the admonition, Bohmwald, who said
she spoke perfect English, unequivocally replied, “Yes.” (See
People v. Perez (2018) 19 Cal.App.5th 818, 829-830 [“the record
belies [the defendant’s] contention that he did not meaningfully
understand the immigration consequences of his plea” because
“the superior court explicitly informed [the defendant] that if he
were to plead guilty, he would be deported from the United
States”].) The transcript was the best contemporaneous evidence
of Bohmwald’s understanding of the consequences of her plea,
14
and it contradicted Bohmwald’s testimony 12 years later. (See
People v. Bravo, supra, 58 Cal.App.5th at p. 1172 [“the sole
contemporaneous evidence . . . [was] the plea bargain agreement
and its advisement of rights,” which “prove[d] false” the
defendant’s “attestation that he had received no such admonition
at all”], review granted.)
Moreover, as the superior court observed, once the
prosecutor advised Bohmwald of the immigration consequences of
her plea, Bohmwald could have asked for another opportunity to
speak with her attorney if she was confused, uncertain, or
hesitant. She did not. The absence of anything in the record to
indicate Bohmwald did not understand the admonition or needed
to speak to her attorney, along with her failure to ask to speak
with her attorney after she was advised her plea would have
immigration consequences, confirms she understood and
knowingly accepted those consequences.7 (See People v. Tapia
(2018) 26 Cal.App.5th 942, 952-953 [evidence showed that the
defendant “was advised of the specific immigration consequences
of his plea” because, among other things, “[a]fter being
specifically advised by the trial court his plea would lead to his
deportation and denial of readmission to the United States,” the
defendant “did not request more time to speak with counsel or
7 The superior court did not make an explicit finding that
Bohmwald’s attorney failed to discuss with Bohmwald the
immigration consequences of her plea. The court found
Bohmwald failed to show any error that affected her ability to
meaningfully understand the consequences of her plea. Contrary
to Bohmwald’s assertion, section 1473.7 does not require the
court to make a finding regarding the attorney’s performance at
the plea hearing. (See § 1473.7, subd. (a)(1) [a court need not
make a finding of ineffective assistance of counsel to find a plea
was legally invalid].)
15
further consider the appropriateness of entering a plea”].) In
addition, the court in 2006 witnessed Bohmwald affirm her
understanding of the immigration consequences of her plea and
found she knowingly and intelligently entered her plea and
understood the consequences. Bohmwald does not address this
evidence; she relies instead on her testimony and declaration in
support of the motion, which are inconsistent with the rest of the
record.
The superior court’s finding that Bohmwald did not
accurately recall the plea proceedings discredited the key
evidence on which Bohmwald relied. The superior court did not
believe Bohmwald’s testimony that she received inadequate
advice in 2006 or that she was unaware of the immigration
consequences of her plea. (See People v. Lopez (2018) 5 Cal.5th
339, 352 [“‘a failure to remember aspects of the subject of the
testimony” presents a question “‘of credibility for resolution by
the trier of fact’”].) The superior court’s comments at the hearing
reveal that the court was focused on assessing Bohmwald’s
memory of what occurred in 2006, and we cannot reevaluate the
superior court’s resolution of that credibility issue. (See People v.
Jung, supra, 59 Cal.App.5th at p. 853; People v. Tapia, supra,
26 Cal.App.5th at p. 953.) And in any event, the record amply
supports the court’s decision to discount Bohmwald’s testimony.
In addition to the contradiction between Bohmwald’s testimony
that she did not understand the immigration consequences of her
plea and her statements at the plea hearing in 2006 that she did,
there were other discrepancies that cast doubt on the accuracy of
her memory. Bohmwald testified she did not remember the
prosecutor advising her that she had the right to a jury trial, yet
the prosecutor gave her that very advisement. Bohmwald
testified she did not remember the prosecutor advising her that
she had the right to confront and cross-examine witnesses, yet
16
the prosecutor gave her that very advisement too. While
Bohmwald argues she did not remember the prosecutor speaking
to her “at all,” the prosecutor in fact spoke to Bohmwald at
length, and Bohmwald answered all of the prosecutor’s questions.
Bohmwald’s evidence that she did not understand the
immigration consequences of her plea was not uncontradicted or
unimpeached, and it did not preclude the superior court from
finding it was insufficient.
3. Bohmwald Has Not Shown Prejudice
Bohmwald also did not show prejudice. Bohmwald
contends she established prejudice by stating, in her declaration
and at the hearing on her motion, that “had she known of the
adverse immigration consequences she would not have accepted
the plea.” “In order to satisfy [the defendant’s] burden to prove
prejudice, ‘the defendant must provide a declaration or testimony
stating that he or she would not have entered into the plea
bargain if properly advised. It is up to the trial court to
determine whether the defendant’s assertion is credible, and the
court may reject an assertion that is not supported by an
explanation or other corroborating circumstances.’” (People v.
Vivar, supra, 43 Cal.App.5th at p. 229, review granted.)
The superior court did not believe Bohmwald’s testimony,
finding that in 2006 she was not “that concerned” with the
immigration consequences of a felony conviction. Not only did
Bohmwald fail to ask about the immigration consequences of her
plea when she heard the relevant admonition from the
prosecutor, she continued to commit crimes that could have
similar adverse immigration consequences. The superior court
stated that it understood why Bohmwald now said she would
have not accepted the immigration consequences of her plea, but
found that her overriding interest in getting out of jail in 2006
17
motivated her to take the plea bargain. As discussed, we defer to
the court’s credibility findings.
Nor did Bohmwald submit evidence to corroborate her
assertion that, had she been fully advised in 2006 of the
immigration consequences of her plea, she would not have
pleaded no contest to violating section 484e, subdivision (d). The
absence of such evidence further showed a lack of prejudice. (See
Lee v. United States (2017) 582 U.S. ___, ___ [137 S.Ct. 1958,
1967, 198 L.Ed.2d 476] [“[c]ourts should not upset a plea solely
because of post hoc assertions from a defendant about how he
would have pleaded but for his attorney’s deficiencies,” but
“should instead look to contemporaneous evidence to substantiate
a defendant’s expressed preferences”]; People v. Bravo, supra,
58 Cal.App.5th at p. 1172 [defendant “points to no
contemporaneous evidence in the record to independently
corroborate the attestation in his declaration”], review granted;
People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 224 [“a
declaration by defendant is suspect by itself”]; cf. Lee, at pp. ___,
___, 137 S.Ct. at pp. 1963, 1968 [defendant and his trial counsel
testified “‘deportation was the determinative issue in [the
defendant’s] decision whether to accept the plea,’” and the
defendant’s responses during the plea colloquy confirmed the
importance he placed on deportation]; People v. Ogunmowo (2018)
23 Cal.App.5th 67, 78-79 [defendant’s attorney stated in a
declaration that the defendant affirmatively sought his advice
about immigration consequences before entering his guilty plea,
which provided “contemporaneous evidence” to support the
defendant’s “assertion he would have rejected the plea deal if his
18
attorney had not misadvised him about the immigration
consequences of a conviction”].)8
8 Bohmwald argues that the circumstances of her life in 2006
supported her testimony that “adverse immigration consequences
were a priority for her.” As discussed, the superior court found
that in 2006 Bohmwald did not appear to have much concern
about the immigration consequences of her plea. (Cf. People v.
Mejia, supra, 36 Cal.App.5th at p. 872 [evidence that the
defendant’s “wife and infant son were living in the United
States,” the fact the defendant pleaded open to the court rather
than pursuant to “a negotiated disposition,” and the presence of
“lingering questions about the strength of the underlying
evidence” substantiated the defendant’s claim “he would not have
pleaded guilty had he known about the mandatory and dire
immigration ramifications”]; People v. Camacho, supra,
32 Cal.App.5th at p. 1011 [defendant presented “compelling”
evidence, including that he was married to a United States
citizen and had a young son who was a United States citizen, to
support the defendant’s assertion he would have rejected the plea
offer had he known of the immigration consequences].)
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DISPOSITION
The order denying Bohmwald’s motion under section
1473.7 to vacate her 2006 conviction is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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