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California Supreme Court:
Court Must Tell Sexual Offenders of Risk of Commitment
Opinion Announces New Rule Requiring Trial Judge to Advise Qualifying Criminal Defendants of Possible Consequence Under Sexually Violent Predator Act as Result of Guilty Plea
By a MetNews Staff Writer
The California Supreme Court yesterday announced a new rule requiring trial courts to advise any defendant pleading guilty to a qualifying sexual offense that he may be committed to a secure medical facility indefinitely under the Sexually Violent Predator Act following the completion of a term of imprisonment on the underlying crime.
The announcement follows the filing of a petition for writ of habeas corpus by Victor Tellez, against whom the San Diego District Attorney initiated civil commitment proceedings under the Sexually Violent Predator Act, codified at Welfare and Institutions Code §6600 et seq. (“SVPA”), upon his completion of a sentence of three years imprisonment for a single count of lewd and lascivious acts upon a child in violation of Penal Code §288(a).
Under the SVPA, the California Department of Corrections (“CDCR”) identifies incarcerated individuals who are serving sentences for qualifying offenses and may fall within the act. If the CDCR determines that the inmate is “likely to be a sexually violent predator,” it refers the person to the Department of State Hospitals (“DSH”) for a full evaluation.
Commitment is recommended if two separate mental health practitioners with the DSH determine that the inmate is likely to re-offend if not committed to a state hospital. If the local district attorney’s office agrees, they are tasked with filing a petition in superior court for commitment under the SVPA.
Qualifying Offense
Tellez had been charged with three violations of §288(a)—an SVPA qualifying offense—relating to a March 25, 2017 incident at the Fletcher Parkway Mall in El Cajon, where he allegedly ran his hands down the backs of two boys, aged nine and 10, and grabbed a 13-year-old girl from behind, wrapping his arms around her and telling her to “come here.”
He pled guilty to one count on the advice of counsel, who is identified in Tellez’s opening brief as a deputy with the office of the San Diego County Public Defender. Tellez maintains that he was not advised by his attorney regarding the possibility of a SVPA commitment.
His plea form supports his assertion and shows that SVPA proceedings were not among the possible consequences circled on the document.
Upon completion of his prison term in 2019, the San Diego County District Attorney’s office initiated commitment proceedings against him under the SVPA. He was transferred to the county jail to remain in custody during the pendency of the hearings.
Habeas Proceedings
In 2021, Tellez filed a petition for writ of habeas corpus, arguing that the failure of his attorney to advise him of possible SVPA proceedings constituted ineffective assistance of counsel. San Diego Superior Court Judge Roderick W. Shelton denied the petition.
Div. One of the Fourth District Court of Appeal, in an opinion by Justice Joan K. Irion, affirmed, finding that professional norms did not require Tellez’s counsel to advise him of the SVPA consequences of a guilty plea and that he had failed to demonstrate prejudice.
Justice Kelli Evans wrote the opinion for the unanimous court, affirming “on the limited ground that Tellez has not demonstrated prejudice” and declining to address whether counsel provided ineffective assistance. The high court exercised its supervisory powers to announce the new rule.
Evans wrote:
“[I]n a case where a defendant will plead guilty or no contest to a sexually violent offense as defined in the SVPA…, or the court is aware that the defendant has a prior conviction for a sexually violent offense, the trial court should advise the defendant along the following lines: ‘At the end of your sentence for this offense, you may be subject to screening by the State Department of State Hospitals to determine whether you qualify for trial as a sexually violent predator, which could result in your being committed to a secure medical facility indefinitely.’ To ensure the record is complete, the court should also inquire whether the parties discussed the possibility of a disposition involving a plea to an offense that is not a sexually violent offense.
“The rule we adopt here applies solely to individuals pleading guilty or no contest to SVPA-qualifying offenses. It does not impose additional admonition requirements in the taking of other pleas. This rule shall apply prospectively from the date this opinion becomes final.”
Justice Goodwin H. Liu wrote a concurring opinion, to which Evans joined, to underscore that the rule is consistent with precedent requiring courts to advise defendants of all “direct consequences” of their pleas and to say that he would “go further” and hold that “counsel’s failure to advise defendant Victor Tellez of the SVPA consequences of his plea was constitutionally deficient performance.”
No Prejudice
Evans noted that “ineffective assistance of counsel claim has two elements: a defendant must show that their counsel’s performance was deficient, and that this deficient performance prejudiced the defense.”
She pointed out that Tellez faced a maximum sentence of 12 years in prison but was sentenced to three years following his acceptance of the plea deal. Tellez asserts that he would not have accepted the deal had he known of the potential SVPA consequences.
Unpersuaded, Evans remarked:
“[W]e note the limited nature of Tellez’s declaration, which does not provide any details about why he would not have pleaded guilty had he known about the SVPA consequences. Indeed, the only thing Tellez says in his declaration about the factors that influenced his decision to plead guilty suggest that he assumed he would be found guilty anyway. For example, he states that ‘[m]y attorney told me that I should plead guilty because I would not win at trial.’ Tellez has also not identified that an SVPA-safe outcome could have been attained through further plea negotiations, such as pleading to a non-qualifying offense.”
The justice added:
“Tellez’s postconviction statement that he would not have accepted the plea deal had he been advised of the potential SVPA consequences does not satisfy his burden of establishing a reasonable probability that he would not have accepted the plea absent counsel’s alleged errors, and thus, fails to satisfy the prejudice prong…Finding this requirement unsatisfied, we do not reach the merits of Tellez’s claim that his counsel rendered deficient performance, and we leave open the constitutional question it presents.”
Rules of Procedure
Evans said “[w]e have used our supervisory authority over the courts to establish a number of judicial procedures such as the giving of judicial advisements under certain circumstances” and said “prudential and fairness considerations” weigh in favor of the advisement.
She opined:
“It is a significant deprivation of a person’s liberty to be detained for years while SVPA proceedings are conducted, and potentially indefinitely after being committed under the SVPA. This deprivation may occur without the defendant having committed any additional criminal acts beyond those that are the subject of the guilty or no-contest plea. Furthermore, the impact that being [labeled] a ‘sexually violent predator’ can have on a person’s life after release can be severe, including mandatory public disclosure of such status and other personal information upon a community member’s request.”
The jurist continued:
“Meanwhile, it is a relatively minor burden to advise criminal defendants of potential SVPA consequences. Although we are mindful of imposing additional duties on trial courts, we conclude that the benefit of advising criminal defendants of the potential SVPA consequences of a guilty plea significantly outweighs the administrative burden.”
Liu’s Concurring Opinion
Liu wrote:
“It is undisputed that Tellez’s counsel did not advise him of the consequences of pleading guilty to Penal Code section 288, subdivision (a), a SVPA-qualifying offense. The SVPA was an ‘applicable law’ relevant to his decision whether to plead guilty, but it was not discussed….Tellez’s counsel failed to advise him of these consequences even though ‘Sexually Violent Predator Law’…was listed but not circled on his plea form under a heading that says ‘My attorney has explained to me that other possible consequences of this plea may be: (Circle applicable consequences.)’….This fact alone may be dispositive for the performance inquiry in this case.”
He added:
“The failure of Tellez’s public defender to discuss this potential consequence with him, even after being prompted to do so on the plea form, fell ‘outside the wide range of professionally competent assistance.’…. As Tellez argues, either counsel did not understand the relevance of the SVPA to his case, or counsel did understand but failed to advise anyway. Either way, counsel’s performance was objectively unreasonable and therefore constitutionally deficient.”
The case is In re Tellez, 2024 S.O.S. 2967.
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