Filed 10/20/21 P. v. Bohmwald CA2/7

Opinion following rehearing

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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,

Plaintiff and Respondent,

v.

LINDSAY BOHMWALD,

Defendant and Appellant.

 B300743

 (Los Angeles County

 Super. Ct. No. NA068801)

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. 
2

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.
3

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.)
4

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 
5

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.
6

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 
7

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”].)
8

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.” 
9

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 
10

[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. 
11

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 
12

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. 
13

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 
14

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 
15

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 
16

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.
17

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].)
18

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 
19

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. 
20

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].) 
21

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. 
22

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 
23

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. 
24

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.)
25

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.
26

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”’”].)
27

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.