People v. Bohmwald

NOT TO BE PUBLISHED

APPEAL from a postjudgment order of the Superior Court of Los Angeles County No. NA068801, 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.

SEGAL, J.

INTRODUCTION

Lindsay Bohmwald appeals from the superior court's order denying her motion under Penal Code section 1473.7^[1] 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.

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

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

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

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 U.S. Citizenship and lead to deportation with no ability to return to the United States."^[5]

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."

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

her car,...