People v. Bohmwald CA2/7

Filed 10/20/21 P. v. Bohmwald CA2/7
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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.
Rob Bonta and Xavier Becerra, Attorneys 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
Lindsay Bohmwald appeals from the superior court’s order
denying her motion under Penal Code section 1473.71 to vacate
her conviction by plea to grand theft of access card information
(§ 484e, subd. (d)). Bohmwald, a native of Venezuela, argued her
trial counsel did not inform her of the immigration consequences
of pleading no contest, which “damage[ed] her ability to
understand or defend against the adverse immigration
consequences of her plea.” The superior court denied her motion.
On April 16, 2021 we filed our original opinion in this case.
We held the evidence did not compel a finding in Bohmwald’s
favor and affirmed the superior court’s order denying the motion
under section 1473.7. (People v. Bohmwald (Apr. 16, 2021,
B300743) [nonpub. opn.].) Following the Supreme Court’s
decision in People v. Vivar (2021) 11 Cal.5th 510 (Vivar), we
ordered rehearing and supplemental briefing. Reviewing the
record independently, and following the Supreme Court’s
directive in Vivar to give deference to the superior court’s
findings based on live testimony, we conclude Bohmwald failed to
show she was entitled to relief under section 1473.7. Therefore,
we affirm.
1 Statutory references are to the Penal Code.
2
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
information of another person with the intent to use it
fraudulently, in violation of section 484e, subdivision (d).2
At an early disposition hearing, counsel for Bohmwald
informed the court 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 her a series of
questions. The prosecutor asked Bohmwald whether she
understood the People were charging her with “receiving stolen
property” and “possession of an access card or account
information belonging to somebody else,” whether she had an
opportunity to discuss her constitutional rights with her attorney,
whether she understood those rights, and whether she
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
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 not to
incriminate herself. Bohmwald answered “yes” to each of the
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,
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 that the maximum term of
imprisonment she could face if she violated the terms and
conditions of her probation was three years eight months, that
she had the 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 confirming she understood 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). The court
instructed Bohmwald, among other terms and conditions of her
probation: “[Y]ou are ordered to have no blank checks in your
4
possession. You may not write any portion of any checks. You
may not have a bank account upon which you may draw checks.
You may not use, apply or possess any credit or ATM card.”
Bohmwald accepted the terms and conditions of her probation,
and the court 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
again for having stolen property in her car. Bohmwald pleaded
no contest to a felony charge of violating section 496,
subdivision (a). Bohmwald signed a plea form and placed her
initials in the box next to the statement: “I understand that if I
am not a citizen of the United States, the conviction for the
offense 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.”
Counsel for Bohmwald in that case signed the plea form attesting
he had explained to Bohmwald all the rights described in the
form.3 The trial court asked Bohmwald if she understood
“everything” in the form, and Bohmwald replied, “Basically.” The
court confirmed Bohmwald indicated she understood the
3 Bohmwald also pleaded no contest to a misdemeanor
charge of grand theft (§ 487, subd. (a)) in a third case. The trial
court that accepted the plea found that Bohmwald read and
signed a misdemeanor advisement form on which she placed her
initials next to each of the “applicable provisions” to indicate she
understood the provision.
5
statements on the form by placing her initials in the box next to
each statement.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 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 plead 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.”5
4 In 2018 Bohmwald successfully moved under section 1016.5
to vacate her 2007 felony conviction (which in 2016 had been
reduced to a misdemeanor under Proposition 47) based on the
trial court’s failure to give the advisement required by that
statute. (People v. Bohmwald (June 10, 2021, B300413)
[nonpub. opn.].) “[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).) After the court vacated her 2007 conviction,
a jury convicted Bohmwald of violating section 496,
subdivision (a), and Division Two of this court affirmed. (People
v. Bohmwald, supra, B300413.)
5 Bohmwald also filed a motion under section 1016.5,
arguing the trial court in her 2006 case failed to advise her of the
6
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 attorney for the first time on the day she pleaded no
contest. 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
opined 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.”
immigration consequences of her plea. Bohmwald withdrew this
motion after the People produced a copy of the transcript of the
plea proceedings that showed the prosecutor gave the advisement
under section 1016.5. (See People v. Superior Court (Sanchez)
(2014) 223 Cal.App.4th 567, 575 [it is “common practice for the
prosecutor, rather than the court, to advise of [the defendant’s]
rights and the consequences of a guilty plea”].)
7
At the hearing on the motion Bohmwald testified about
many of the things she had stated 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, stated that the
questions were “testing [Bohmwald’s] credibility,” and remarked,
“It’s interesting to the court as to what she does and does not
remember.”6 The superior court had the following exchange with
Bohmwald:
“The Court: In the 2006 case, how long had you been in
custody before you took the plea agreement? Do you know?
“[Bohmwald]: It wasn’t very long. Probably a couple of
days.
“The Court: Okay. And you wanted out of jail?
“[Bohmwald]: Of course, yes.
“The Court: That would have been a priority, right, to get
out of jail?
“[Bohmwald]: Definitely.”
Bohmwald also testified that, a little more than a year after
her 2006 plea, the police stopped her as she was driving, searched
6 For example, Bohmwald testified she did not remember a
bag containing checks the police found in the back of the car she
was driving and denied the bag and the checks were hers.
Following her arrest in 2006, Bohmwald provided a written
statement to the police: “The checks in [the] bag are mine but
outside are not. Probably left there from previous owner.”
8
her car, and found a bag containing certain items that did not
belong to her. Bohmwald confirmed that in 2007 she pleaded no
contest to receiving stolen property. Referring to her written
waivers and plea in the 2007 case, Bohmwald testified she did
not read the statements next to the boxes before placing her
initials in the boxes.
Counsel for Bohmwald agreed the court could consider that
Bohmwald “continued to enter into a plea agreement to . . .
charges that . . . she could have been deported on” and “chose not
to negotiate for a lower charge that would have no impact on her
immigration status.” But counsel pointed out “those pleas were
vacated pursuant to [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 she said “yes” when
asked if she understood. The prosecutor argued Bohmwald’s
testimony was “not credible and not trustworthy” and cited as an
example Bohmwald’s testimony about the stolen checks, which
contradicted her written statement from 2006.
The court considered Bohmwald’s testimony, reviewed the
facts of the case, and concluded Bohmwald had “every reason” in
2018 to say she did not understand the consequences of her plea.
The court said it also 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,
Bohmwald should have taken “some responsibility for that, and
9
[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.” Thus, the court found, 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. . . . And you would have been worried about your family.”
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
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.” The court denied the motion “without
prejudice,” ruling Bohmwald had not met her burden to show by
a preponderance of the evidence the court should vacate her
conviction. Bohmwald timely appealed.
10
D. We Affirm the Superior Court’s Order, the Supreme
Court Decides Vivar, and We Order Rehearing
In her opening brief Bohmwald argued the superior court
erred by applying an incorrect legal standard that conditioned
her entitlement to relief on whether she sought advice from her
attorney, failing to make a finding on whether her attorney
properly advised her, and concluding she did not satisfy the
requirements of section 1473.7. In affirming the superior court’s
order, we held that the court did not base its order denying relief
under section 1473.7 on Bohmwald’s failure to seek advice from
her attorney, that the court made the necessary findings under
section 1473.7, and that the evidence did not compel a finding
that Bohmwald established prejudicial error entitling her to
relief. (People v. Bohmwald, supra, B300743.)
Two weeks after our original decision, the Supreme Court
decided Vivar, supra, 11 Cal.5th 510, which clarified the
standard of review for orders granting or denying a motion under
section 1473.7. (Vivar, at p. 524.) The Supreme Court in Vivar
also discussed the kind of objective evidence required to
corroborate a defendant’s assertion he or she would not have
accepted a plea that included adverse immigration consequences.
(Id. at p. 530.) We ordered rehearing of our decision in this case
under California Rules of Court, rule 8.268(a), and directed the
parties to file supplemental briefing on the effect, if any, of the
Supreme Court’s decision in Vivar on the issues in this appeal.
Bohmwald argues in her supplemental brief that under
Vivar the superior court erred in not making a finding whether
Bohmwald’s trial counsel failed to properly advise her, that
Bohmwald established she did not understand the immigration
consequences of her plea, and that Bohmwald established “her
11
counsel’s error was prejudicial.”7 We conclude that the superior
court made the necessary findings under section 1473.7 and that,
applying the independent standard of review prescribed by Vivar,
supra, 11 Cal.5th 510 at page 524, Bohmwald failed to satisfy the
requirements of section 1473.7.
DISCUSSION
A. Applicable Law and Standard of Review
Section 1473.7, subdivision (a)(1), provides in pertinent
part: “A person who is no longer in criminal custody may file a
motion to vacate a conviction or sentence” where 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 Vivar, supra, 11 Cal.5th
at p. 517 [“A successful section 1473.7 motion requires a showing,
by a preponderance of the evidence, of a prejudicial error that
affected the defendant’s ability to meaningfully understand the
7 As discussed, Bohmwald argued in her opening brief the
superior court erred in conditioning her entitlement to relief on
whether she sought advice from her attorney. Bohmwald does
not discuss this issue in her supplemental brief. To the extent
Bohmwald still challenges the superior court’s ruling in this
regard, it is without merit. The two remarks Bohmwald
excerpted to support her position reflect the court’s rationale for
questioning Bohmwald’s recollection of the plea proceedings, not
a condition for granting relief under section 1473.7.
12
actual or potential immigration consequences of a plea.”]; People
v. Camacho (2019) 32 Cal.App.5th 998, 1005 [same].)
“What someone seeking to withdraw a plea under section
1473.7 must show is more than merely an error ‘damaging the
moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences’ of the plea. [Citation.] The error
must also be ‘prejudicial.’” (Vivar, supra, 11 Cal.5th at p. 528.)
“[S]howing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable probability
that the defendant would have rejected the plea if the defendant
had correctly understood its actual or potential immigration
consequences.” (Vivar, at p. 529; see People v. DeJesus (2019)
37 Cal.App.5th 1124, 1133-1134; People v. Mejia (2019)
36 Cal.App.5th 859, 862.)
“[W]e review . . . rulings [under section 1473.7]
independently . . . .” (Vivar, supra, 11 Cal.5th at p. 524; see
People v. Lopez (2021) 66 Cal.App.5th 561, 574 [under Vivar, “a
motion to withdraw a plea under section 1473.7 is reviewed
independently rather than for abuse of discretion”].) “‘[U]nder
independent review, an appellate court exercises its independent
judgment to determine whether the facts satisfy the rule of law.’
[Citation.] When courts engage in independent review, they
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. . . . In section 1473.7
proceedings, appellate courts should . . . give particular deference
to factual findings based on the trial court’s personal
observations of witnesses.” (Vivar, at pp. 527-528.) “Ultimately
13
it is for the appellate court to decide, based on its independent
judgment, whether the facts establish prejudice under section
1473.7.” (Vivar, at p. 528.)
B. The Superior Court Did Not Err in Ruling Bohmwald
Failed To Show Error
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.”
The superior court, however, after considering what
Bohmwald did and did not remember, questioned Bohmwald’s
recollection of the 2006 proceedings and found Bohmwald’s
testimony was not credible. The record fully supported the
court’s finding. For example, Bohmwald testified at the hearing
she did not “remember anything about stolen checks.” As
discussed, not only did Bohmwald admit to the police in 2006 the
checks the police found in a bag belonged to her, the trial court in
2006 specifically prohibited her, as a term of her probation (a
term she said she understood and accepted), from handling
checks. Bohmwald also testified she did not remember the
prosecutor speaking to her “at all,” but the prosecutor spoke to
Bohmwald at the plea hearing at length, and Bohmwald
answered all of the prosecutor’s questions. Finally, Bohmwald
testified, “If any type of conversation [on] immigration would
have been brought up, I think I would have remembered that.”
Yet, Bohmwald did not remember the prosecutor’s
14
straightforward warning that her plea “will” result in her
deportation (or her confirmation she understood the warning).
Citing the court’s comment that the court was not saying
she was a liar, Bohmwald argues the court did not actually make
a credibility finding. The court, however, immediately qualified
that comment by stating it did not think that Bohmwald
“accurately” remembered what her attorney may have told her
about immigration consequences. In context, the court’s remark
it did not think Bohmwald was a “liar” did not mean, as
Bohmwald argues, that the court did not make a credibility
finding or that the court found her credible. The opposite. The
court found Bohmwald’s recollection unreliable, and after
listening to Bohmwald’s testimony that her attorney failed to
advise her of the immigration consequences of her plea, did not
believe her. This was a credibility finding against Bohmwald (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’”]), which the
Supreme Court requires us to defer to (see Vivar, supra,
11 Cal.5th at p. 528).
The superior court also did not believe Bohmwald’s
assertion she did not understand the immigration consequences
of her plea. As discussed, the court stated it would have expected
that, on hearing the prosecutor’s admonition, Bohmwald would
have expressed hesitation or asked to speak with her attorney;
instead, the court observed, Bohmwald said she understood the
consequences. (See People v. Tapia (2018) 26 Cal.App.5th 942,
952-953 [“[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
15
speak with counsel or further consider the appropriateness of
entering a plea,” indicating he “had no need for a further
conversation” with his trial counsel because counsel had already
advised him].) We again defer to the court’s credibility
determination. (See Vivar, supra, 11 Cal.5th at p. 528.)
Bohmwald argues the Supreme Court in Vivar “cited
approvingly to numerous cases where the appellate court rejected
the trial court’s inference that the defendant must have
understood the adverse immigration consequences of the plea
because he did not ask questions after receiving the Tahl form or
the court’s admonishment.”8 Bohmwald misreads Vivar. In
Vivar, supra, 11 Cal.5th 510 the Supreme Court stated that the
“generic advisements in the plea form” (which advised that
deportation “was a possibility”) did not “undermine [the Supreme
Court’s] conclusion that [the defendant] was prejudiced by [his]
counsel’s failure to inform him that his plea would result in this
deportation.” (Id. at p. 533.) The Supreme Court cited two cases,
People v. Espinoza (2018) 27 Cal.App.5th 908 and People v.
Ogunmowo (2018) 23 Cal.App.5th 67 (Ogunmowo), which
Bohmwald argues support her position.
Neither does. In People v. Espinoza, supra, 27 Cal.App.5th
908 the court held trial counsel provided ineffective assistance
because the immigration advisement in the plea form stated the
conviction “‘may have’” the consequence of deportation, but
counsel did not advise the defendant that “deportation would be
8 A Tahl form is a plea form that reflects the constitutional
advisements mandated under In re Tahl (1969) 1 Cal.3d 122,
disapproved on another ground in Mills v. Municipal Court
(1973) 10 Cal.3d 288, and Boykin v. Alabama (1969) 395 U.S.
238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
16
mandatory.” (Id. at pp. 914, 916.) The prosecutor’s admonition
here, that the plea “will result” in Bohmwald’s deportation,
unlike the plea form in Espinoza, accurately advised Bohmwald
deportation was mandatory. In Ogunmowo, supra,
23 Cal.App.5th 67 trial counsel erroneously advised the
defendant that, “‘because he was a lawful permanent resident of
the United States, . . . he would not face any immigration
consequences because of his plea in this case.’” (Id. at p. 70.) The
court held: “The fact that the court advised [the defendant] that
immigration consequences arising from the guilty plea were
possible does not preclude [the defendant] from establishing that
counsel’s incorrect advice prejudiced him.”9 (Id. at p. 80.) There
is no evidence Bohmwald’s trial counsel ever assured her that she
would not be deported. (Cf. People v. Camacho, supra,
9 Bohmwald also cites People v. Lopez, supra, 66 Cal.App.5th
561, a recent case that she says is relevant to “whether [she] did
not adequately [understand] the adverse immigration
consequences of her plea even though the prosecutor (on behalf of
the trial court) provided her with the admonition required by . . .
section 1016.5.” In Lopez the court held the trial court’s
admonition the defendant’s plea “‘will have immigration
consequences,’” was “not a substitute for counsel’s advice” under
section 1016.3 because a “proper advisement by the court does
not foreclose the possibility of relief when counsel provides
inaccurate or incomplete advice regarding immigration
consequences.” (Lopez, at pp. 577-578.) As discussed, Bohmwald
did not present evidence her trial counsel gave her any
inaccurate advice. And section 1016.3, effective in 2016 (Lopez,
at p. 576), does not apply in this case. (See People v. Olvera
(2018) 24 Cal.App.5th 1112, 1116 [section 1016.3 does not apply
retroactively].)
17
32 Cal.App.5th at p. 1009 [“defendant’s claims of error were
supported by his former attorney’s undisputed testimony that he
told [him] only that the charge could subject him to deportation”];
Ogunmowo, at pp. 76-77 [trial counsel’s declaration corroborated
the defendant’s assertion that his attorney gave him incorrect
advice about the immigration consequences of the guilty plea].)
In addition, the transcript of the 2006 proceedings, which is
the best contemporaneous evidence of Bohmwald’s understanding
of the consequences of her plea, contradicted Bohmwald’s
testimony 12 years later. Bohmwald, who says she speaks
perfect English, was articulate in answering the prosecutor’s
questions in 2006, and her acknowledgment at that time she
understood the prosecutor’s immigration warning undermined
her statement at the hearing in 2018 that she had no such
understanding. (See People v. Tapia, supra, 26 Cal.App.5th at
p. 953 [“The trial court implicitly found [the defendant’s]
declaration [that he did not understand the immigration
consequences of his plea] not credible, considering the comment
by [his counsel]” and “the trial court’s advisement.”]; 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”].)10
10 Citing In re Resendiz (2001) 25 Cal.4th 230, Bohmwald
argues that “the court’s required admonishment is not a
substitute for counsel’s duty to advise regarding adverse
immigration consequences.” True enough. In In re Resendiz the
Supreme Court held that an advisement under section 1016.5 did
not preclude the petitioner from seeking a writ of habeas corpus
on the ground his counsel misadvised him. (Resendiz, at
18
Finally, the trial court in 2006 observed Bohmwald
affirmed her understanding of the immigration consequences of
her plea and found she knowingly and intelligently entered her
plea and understood its consequences. Bohmwald does not
address this evidence; she relies instead on her testimony and
declaration in 2018, which are inconsistent with the rest of the
record.11
pp. 241-242.) But the superior court here did not deny
Bohmwald’s motion because the prosecutor’s admonition under
section 1016.5 was sufficient, but because Bohmwald’s response
in 2006 to the admonitions cast doubt on the credibility of her
testimony in 2018 that she was unaware of the immigration
consequences of her plea.
11 Bohmwald argues the superior court erred in failing to
make an explicit finding on her attorney’s failure to discuss with
her the immigration consequences of her plea, which she says is a
“required” finding under section 1473.7. In finding Bohmwald
failed to meet her burden under section 1473.7, the superior court
necessarily found she failed to show “a prejudicial error” (Vivar,
supra, 11 Cal.5th at p. 517) that affected her ability to
meaningfully understand the immigration consequences of her
plea. As discussed, the court denied Bohmwald’s motion because
the court did not credit Bohmwald’s testimony that her attorney
did not properly advise her or that she did not meaningfully
understand the immigration consequences of her plea, and
therefore failed to meet her burden of demonstrating error under
section 1473.7. Section 1473.7 does not require more.
19
C. The Superior Court Did Not Err in Ruling Bohmwald
Failed To Show Prejudice
As discussed, to show prejudice under section 1473.7
Bohmwald had to demonstrate a “reasonable probability” that,
had she understood the immigration consequences of the plea,
she would have rejected it. (Vivar, supra, 11 Cal.5th at p. 529.)
“When courts assess whether a petitioner has shown that
reasonable probability, they consider the totality of the
circumstances. [Citation.] Factors particularly relevant to this
inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the
defendant’s priorities in seeking a plea bargain, and whether the
defendant had reason to believe an immigration-neutral
negotiated disposition was possible.” (Id. at pp. 529-530.)
“[W]hen a defendant seeks to withdraw a plea based on
inadequate advisement of immigration consequences, we have
long required the defendant corroborate such assertions with
‘“objective evidence.”’” (Id. at p. 530; see Lee v. United States
(2017) 582 U.S. ___, ___ [137 S.Ct. 1958, 1967, 198 L.Ed.2d 476]
(Lee) [“[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. Martinez (2013) 57 Cal.4th 555,
565 [“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. Lopez, supra,
66 Cal.App.5th at p. 581, quoting Lee, at p. ___ [137 S.Ct. at
p. 1967].)
20
Considering the totality of the circumstances here, we
conclude Bohmwald failed to show that, had she understood the
immigration consequences of her plea in 2006, she would not
have accepted the benefits of her plea and pleaded no contest.
First, the record does not reflect that avoiding deportation was
important to Bohmwald in 2006. The superior court found
Bohmwald was not particularly concerned in 2006 with the
immigration consequences of a felony conviction, and the court
did not believe Bohmwald’s statement her “green card” was “of
utmost importance.” As discussed, we defer to the court’s
credibility finding based on its observation of Bohmwald’s
testimony. (See Vivar, supra, 11 Cal.5th at pp. 527-528.)
Bohmwald also continued to enter into plea agreements relatively
close in time to her 2006 plea and received similar warnings
about adverse immigration consequences before pleading no
contest, which further suggested indifference to immigration
consequences. (Cf. id. at p. 531 [defendant’s actions “at or near
the time” of his plea corroborated his assertion “he wouldn’t have
pleaded guilty had he known it would result in his deportation”].)
And the record of the 2007 plea proceedings, which occurred a
little over a year after her 2006 plea, does not indicate Bohmwald
was at all concerned about the immigration advisement she now
says would have been a deal-breaker.12
Bohmwald’s response in 2006 to the prosecutor’s
admonition that deportation was a certainty also belies her
12 The superior court observed that the 2007 plea form was
“something that [was] gone over by [Bohmwald] again, and [her]
attorney” and that Bohmwald initialed the box indicating she had
discussed each of the statements on the form with her attorney.
21
insistence in 2018 she would have stayed longer in jail to “save”
her immigration status. Contrary to Bohmwald’s contention that
“a section 1016.5 admonition . . . cannot be used to cast doubt on
a defendant’s credibility on the issue of prejudice in a section
1473.7 claim,” the superior court properly considered Bohmwald’s
response to the prosecutor’s admonition.13 (See People v.
Patterson (2017) 2 Cal.5th 885, 899 [“In exercising . . . discretion
[under section 1018], a trial court may take into consideration the
defendant’s reaction to the section 1016.5 advisement—for
example, whether the defendant acknowledged understanding
the advisement and whether he or she expressed concerns about
possible deportation consequences or sought additional time to
consult with counsel. These considerations . . . may assist courts
in evaluating a later claim that the defendant would not have
entered the plea had he or she understood the plea would render
the defendant deportable.”].)14
13 Bohmwald argues she did not understand “the legal
meaning of the words uttered by the prosecutor.” Putting aside
that this argument is inconsistent with her testimony she did not
recall the prosecutor told her the immigration consequences of
her plea, Bohmwald nevertheless did not express any hesitation,
confusion, lack of understanding, or concern upon hearing the
terms “deportation,” “denial of naturalization,” and “denial of
reentry into the United States.”
14 Citing People v. Rodriguez (2021) 60 Cal.App.5th 995,
Bohmwald states that, “when [a] defendant receives a form that
advises him of certain adverse immigration consequences, it is
not sufficient to overcome the prejudice that results from
counsel’s deficient immigration advice.” But, except for one
sentence at the end of the opinion, the court in Rodriguez did not
address the issue of prejudice. The “critical question” in that case
22
Second, the Supreme Court in Vivar emphasized the
importance of corroborating objective evidence. (Vivar, supra,
11 Cal.5th at p. 530.) Here, however, there was no
contemporaneous evidence to corroborate Bohmwald’s 2018
statement that she prioritized her immigration status in 2006.
(Cf. Lee, supra, 582 U.S. at pp. ___, ___ [137 S.Ct. at pp. 1963,
1967-1968] [defendant submitted his trial counsel’s testimony
that “‘deportation was the determinative issue in [the
defendant’s] decision whether to accept the plea,’” which the
defendant’s responses during the plea colloquy confirmed]; Vivar,
supra, 11 Cal.5th at pp. 530-531 [defendant submitted his trial
counsel’s contemporaneous notes, which reflected that the
defendant “was indeed concerned about the ‘consequences’ of his
plea,” and his “uncounseled letters” to the court a few months
after his plea to express how much he valued remaining in the
United States]; Ogunmowo, supra, 23 Cal.App.5th at pp. 78-79
[defendant presented evidence from his trial counsel that he
affirmatively sought advice about immigration consequences
before entering his guilty plea, which provided “contemporaneous
was whether the section 1016.5 advisement on the plea form
“supported the trial court’s finding that [the defendant]
‘meaningfully understood the associated adverse immigration
consequences’ he ultimately faced at sentencing.” (Rodriguez, at
p. 1004.) Because an “unusual sequence of events” led the trial
court in that case to sentence the defendant to a lengthier prison
term than the term his trial counsel negotiated, “elevating his
conviction to an ‘aggravated’ felony under the federal
immigration laws and subjecting him to deportation,” the court
concluded the defendant did not understand the immigration
consequences of his plea. (Id. at pp. 999, 1000-1001, 1004-1005.)
There were no such unusual circumstances here.
23
evidence” to support his “assertion he would have rejected the
plea deal if his attorney had not misadvised him about the
immigration consequences of a conviction”].)
Third, the record shows Bohmwald in fact had other
priorities in agreeing to plead no contest. The superior court
found she pleaded no contest to obtain her release from custody,
which finding was supported by Bohmwald’s testimony, in
response to the court’s question about her priorities in 2006, she
“definitely” wanted to get out of jail. Although, as Bohmwald
points out, under Vivar a defendant may simultaneously seek
both to minimize her period of incarceration and to avoid adverse
consequences, in Vivar the defendant proved he would have
“considered his immigration status ‘the most important part’ of
his decision to plead.” (Vivar, supra, 11 Cal.5th at p. 530; see
Lee, supra, 582 U.S. at pp. ___, ___ [137 S.Ct. at pp. 1963, 1968].)
There was no such evidence here.
Fourth, there was no evidence an immigration-neutral
negotiated disposition was possible. (See Vivar, supra, 11 Cal.5th
at p. 531 [trial counsel’s “contemporaneous notes” indicated the
prosecution offered a deal in which the defendant could have
avoided mandatory deportation].) Neither Bohmwald’s attorney,
the prosecutor, nor an immigration expert (see ibid.) testified
Bohmwald had any options or prospects of obtaining a plea deal
that did not have immigration consequences. (See id. at p. 529
[“the court should consider ‘evidence that would have caused the
defendant to expect or hope a different bargain would or could
have been negotiated’”].) Indeed, as discussed, Bohmwald’s
successful motion under section 1016.5 to vacate her 2007 plea
resulted in a trial on the merits, a conviction, and affirmance on
appeal. (People v. Bohmwald, supra, B300413.)
24
Fifth, because the United States has been Bohmwald’s
home for most of her life, her ties to this country may have been
the one Vivar factor that weighed in favor of a finding of
prejudice. But not too strongly. Unlike the defendants in other
cases, Bohmwald did not have any dependents or other
obligations that made it imperative for her to remain in the
United States in 2006. (Cf. Lee, supra, 582 U.S. at p. ___
[137 S.Ct. at p. 1968] [defendant had lived in the United States
for nearly three decades, established two businesses, and was the
only family member in the United States who could care for his
elderly American citizen parents]; Vivar, supra, 11 Cal.5th at
p. 530 [defendant had two children, two grandchildren, and a
wife, all of whom were United States citizens]; People v. Mejia,
supra, 36 Cal.App.5th at p. 872 [defendant’s wife and infant son
lived in the United States as did his mother and six siblings];
People v. Camacho, supra, 32 Cal.App.5th at p. 1011 [defendant
had a spouse and infant son, both of whom were American
citizens]; Ogunmowo, supra, 23 Cal.App.5th at pp. 69, 73, 78
[defendant relocated from Nigeria to the United States and had a
partner and four children who were American citizens].)
Conversely, Bohmwald had a meaningful tie to her native
country—her mother had moved back to Venezuela two years
before her plea in this case.15 (Cf. Lee, at p. ___ [137 S.Ct. at
p. 1968] [“there is no indication that [the defendant] had any ties
15 It appears Bohmwald forgot she testified at the hearing
that her mother had returned to Venezuela when Bohmwald was
17 years old. Bohmwald argues that, at the time of her 2006
plea, her parents “were in this country,” she “had no ties” to
Venezuela, and she “would be left to fend for herself.” There is no
support in the record for this statement.
25
to South Korea”]; Vivar, at p. 530 [the defendant “had virtually
no ties to Mexico”]; Mejia, at p. 872 [the defendant’s “only
remaining family tie to Mexico was his father, who passed away
just before [he] entered his guilty pleas”].)
Bohmwald argues her 2018 application for naturalization
and her prompt efforts to “undo the adverse immigration
consequences of her plea” once she learned of those consequences
corroborated her assertion of prejudice. Bohmwald’s 2018
application is not probative of her mindset in 2006, and the
passage of 12 years before she sought to change her immigration
status suggests that obtaining United States citizenship was not
a priority for her. And Bohmwald’s efforts in 2018 to vacate her
2006 and 2007 convictions have little bearing on her priorities in
2006. (See People v. Martinez, supra, 57 Cal.4th at p. 564
[defendant’s “decision to accept or reject a plea” is “‘“viewed at the
time of the offer”’”].)
26
DISPOSITION
The order denying Bohmwald’s motion without prejudice
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.
27