In re Tellez
Opinion of the Court by Evans, J.
Under the Sexually Violent Predator Act (SVPA) (
Petitioner Victor Raul Tellez was charged with three counts of violating
Tellez asserts he was not advised of the possibility of a civil commitment by counsel and that he would not have accepted the plea deal had he been properly informed of its potential SVPA consequences. Tellez argues that his counsel‘s failure to so advise him was a violation of his constitutional right to effective assistance of counsel. We first assess whether Tellez has demonstrated he was prejudiced by his counsel‘s failure to advise him of the SVPA consequences of accepting the plea deal. We conclude that he has not. Tellez has provided insufficient evidence that he would not have accepted the plea deal had he been advised of the SVPA consequences by his counsel, and thus, has not established that he was prejudiced. Because Tellez has not demonstrated he was prejudiced by his counsel‘s failure to advise, we need not reach the merits of his deficient performance claim. However, as both parties in this litigation note, commitment under the SVPA constitutes a significant deprivation of liberty, and a defendant should be made aware of the possibility of such a commitment. Both parties request, and we agree it is appropriate, that we exercise our supervisory powers to require trial courts to explicitly advise criminal defendants of potential SVPA consequences of a guilty or nolo contendere (no contest) plea.
I. CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT
The process for committing an individual under the SVPA begins when the California Department of Corrections and Rehabilitation (CDCR) refers an incarcerated individual for an
The DSH is then required to apply a standardized assessment protocol to identify diagnosable mental disorders and other factors known to be associated with the risk of committing another sexual offense. (
The DSH Director may only file a request for commitment if both evaluators concur that the person meets the specified criteria for commitment. (
At the trial, the state bears the burden of proving beyond a reasonable doubt that the individual falls within the statutory definition of a sexually violent predator. (
An individual who is committed under the SVPA is entitled to a yearly evaluation to determine whether they may be conditionally or unconditionally discharged. (
On March 25, 2017, Victor Raul Tellez drank approximately one pint of vodka and went to the Fletcher Parkway Mall in El Cajon, California. While there, Tellez approached three boys who were sitting down in a “relaxation/waiting area” near the mall‘s food court. Tellez laid down behind the boys and ran his open hand down the backs of two of them, ages 9 and 10. The boys got up and left, and Tellez followed. Tellez then approached a 13-year-old girl from behind. He wrapped his arms around her and pulled her closer to him while saying “Come here.” She pulled away from him. Mall security was contacted, and they alerted the police who arrested Tellez.
Tellez was charged with thrеe separate felony counts of lewd or lascivious acts upon a child in violation of
Upon completing his prison term in fall 2019, Tellez was released to the custody of the San Diego County Sheriff‘s Department and the Distriсt Attorney initiated civil
In 2021, Tellez filed a petition for writ of habeas corpus in the San Diego County Superior Court. Tellez alleged that his counsel‘s failure to advise him that accepting the plea deal could subject Tellez to SVPA proceedings constituted ineffective assistance of counsel. (In re Tellez (2022) 84 Cal.App.5th 292, 295 (Tellez).) He also alleged that, as a result of inadequate investigation, his counsel failed to obtain a favorable and potentially exculpatory psychological evaluation for Tellez. (Id. at p. 295.) The superior court summarily denied Tellez‘s psychological evaluation claim as untimely, and then, after issuing an order to show cause on the failure to advise Tellez of potential SVPA consequences, denied that claim as well. (Tellez, supra, 84 Cal.App.5th at pp. 295–296.) In 2022, Tellez filed a petition for writ of habeas corpus in the Court of Appeal. (Id. at p. 296.) That court summarily denied Tellez‘s petition as procedurally barred and failing to state a prima facie case for relief. (Ibid.)
Tellez then petitioned this Court for review. We granted the petition for review and transferred the matter back to the Court of Appeal with directions to vacate the summary denial and to issue an order directing the Secretary of CDCR to show cause why Tellez should not be granted relief on his ineffective assistance of counsel claim. (Tellez, supra, 84 Cal.App.5th at p. 296.) The Court of Appeal then issued a published opinion, again denying Tellez‘s claim. (Id. at pp. 295–304.) The Court of Appeal held that ” ‘prevailing and professional’ ” norms did not require Tellez‘s counsel to advise him of the SVPA consequences of a guilty plea, and that regardless, Tellez had not
Tellez again petitioned this Court for review. We granted review and instructed the parties to brief whether constitutionally effective assistance of counsel requires an advisement that a guilty plea may subject the defendant to commitment proceedings under the SVPA, and if so, whether Tellez was prejudiced by his counsel‘s failure to so advise him. We also directed the parties to brief whether we should exercise our supervisory powers to require that criminal defendants be advised of potential SVPA consequences prior to entering a plea.
III. DISCUSSION
We hold that Tellez has not sufficiently demonstrated he was prejudiced by his counsel‘s actions. Because Tellez has not demonstrated prejudice, we do not address whether his counsel‘s performance was constitutionally deficient. However, like both parties in this litigation, we recognize the significant effect that potentially indefinite commitment to a state hospital under the SVPA can have on a person. Accordingly, we exercise our supervisory powers to require trial courts, where relevant, to inform defendants of the potential for SVPA consequences when pleading guilty or no contest to a qualifying offense.
A. Tellez Has Not Demonstrated that He Was Prejudiced by His Attorney‘s Failure to Advise Him of the Potential SVPA Consequences of a Guilty Plea.
Tellez urges that his counsel failed to provide him with effective assistance by not advising him of the potential SVPA consequences of his plea. Because we conclude Tellez has not established he suffered prejudice from any such alleged failure,
Tellez, who faced a maximum sentence of 12 years had he proceeded to trial and lost, accepted a plea deal, under which he was sentenced to three years in prison and the remaining charges against him were dismissed. Tellez argues that his attorney‘s failure to advise him of the potential SVPA consequences of pleading guilty to the single
An 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. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) A reviewing court can begin an ineffective assistance of counsel inquiry with either element and need not address both elements if one is not satisfied. (Id. at p. 697 [“[A] court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies“]; In re Marquez (1992) 1 Cal.4th 584, 602 [“When there has been no showing of prejudice, we need not determine whether trial counsel‘s performance was deficient“].) Indeed, it is often preferable for a court to dismiss an ineffective assistance of counsel claim solely for lack of prejudice. (Strickland, supra, 466 U.S. at p. 697 [“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . .that course should be followed“]; see People v. Johnsen (2021) 10 Cal.5th 1116, 1168.) To satisfy Strickland‘s prejudice prong, a defendant “must show that there is a reasonable probability
In evaluating ineffective assistance claims asserting a failure to provide adequate advisements, we consider the “totality of the circumstances,” including the “defendant‘s priorities in seeking a plea bargain” and “the defendant‘s probability of obtaining a more favorable outcome if he had rejected the plea.” (People v. Espinoza (2023) 14 Cal.5th 311, 320 (Espinoza); Lee v. United States (2017) 582 U.S. 357, 367 (Lee)). “These factors are not exhaustive, and no single type of evidence is a prerequisite to relief.” (Espinoza, supra, 14 Cal.5th at p. 321.) A defendant must provide ” ‘objective evidence’ ” to corroborate assertions of prejudice, which can include “facts provided by declarations, contemporaneous documentation of the defendant‘s [collateral] concerns or interactions with counsel, and evidence of the charges the defendant faced.” (Id., quoting People v. Vivar (2021) 11 Cal.5th 510, 530 (Vivar).)
In Vivar, supra, 11 Cal.5th 510, we held that a criminal defendant who was later deported to Mexico had sufficiently demonstrated he was prejudiced by his counsel‘s failure to advise him of the immigration consequences of accepting a plea deal. While Vivar involved a demonstration of prejudice in the context of a motion to withdraw a plea under
In Espinoza, supra, 14 Cal.5th 311, a
The nature and type of evidence introduced in Vivar and Espinoza is informative. We note that neither case, however, creates a baseline or minimum requirement for the type of evidence necessary to establish prejudice under Strickland.
To substantiate his claim, Tellez relies primarily on his own declaration, prepared more than three years after his conviction, that he would not have accepted the plea deal had he known of the potential SVPA consequences. But unlike the defendants in Vivar and Espinoza, Tellez has not prоvided sufficient evidence to demonstrate that a different outcome would be reasonably probable had he been advised by his attorney of the SVPA consequences. (See Lee, supra, 582 U.S. at pp. 364–365.)
In reaching this conclusion, we 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
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 of Strickland. (See Strickland, supra, 466 U.S. at p. 696.) 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. (See In re Welch (2015) 61 Cal.4th 489, 516 [“[W]e need not definitively resolve whether counsel‘s performance was adequate because . . . [petitioner] has not made a sufficient showing of prejudice here“].)
B. We Agree with Both Parties that it is Appropriate to Exercise Our Supervisory Authority to Require California Trial Courts to Advisе Defendants Where Relevant of the Potential SVPA Consequences of a Guilty Plea.
This Court is empowered “to formulate rules of procedure where justice demands it.” (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399, 410; see
In Bunnell, supra, 13 Cal.3d at pages 601–606, we exercised our supervisory powers to require that defendants be advised of their constitutional rights before entry of a “slow plea,” i.e., submission of the case on the preliminary hearing transcript. Although we did not say that it was constitutionally compelled, we required that “in all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, . . . and, in appropriate cases the possibility of commitment pursuant to
In Howard, supra, 1 Cal.4th 1132 at pages 1175–1180, we exercised our supervisory powers to require trial courts to
Here, we believe that similar prudential and fairness considerations support a rule requiring trial courts to advise criminal defendants of potential SVPA consequences of a guilty or no-contest plea. (See Yurko, supra, 10 Cal.3d at p. 864 [informing criminal defendants of potential consequences of an admission would “achieve[] justice for both the accused and the state“].) 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 labelled a “sexually violent predator” can have on a person‘s life after rеlease can be severe, including mandatory public disclosure of such status and other personal information upon a community member‘s request. (See
Similar to the advisements we mandated in Bunnell and Howard, we now require all California trial courts to advise criminal defendants who are pleading guilty or nolo contendere to an оffense enumerated in the SVPA, or in instances where the court is aware that the defendant has a prior conviction for such an offense, of potential SVPA repercussions. Bunnell and Howard involved the duty to advise as to direct plea consequences. Whether commitment under the SVPA is characterized as a collateral or direct consequence, we note the particularly significant imposition on liberty a defendant faces under these circumstances, and we exercise our authority to impose an advisement duty here. Nothing we say here is intended to undermine the long-recognized distinction generally requiring court advisement only as to direct plea consequences. (See People v. Villalobos (2012) 54 Cal.4th 177, 181; People v. Segura (2008) 44 Cal.4th 921, 931, fn. 6.)
Specifically, in a case where a defendant will plead guilty or no contest to a sexually violent offense as defined in the SVPA (
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.
IV. DISPOSITION
We affirm the judgment of the Court of Appeal on the limited ground that Tellez has not demonstrated prejudice; we do not reach the question of whether counsel provided ineffective assistance. We exercise our supervisory powers to require trial courts, going forward, to advise criminal defendants of the potential SVPA consequences of a guilty or no contest plea, along the lines set out herein.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
I join the court‘s decision to require trial courts to advise defendants entering a guilty or no contest plea to a Sexually Violent Predators Act (SVPA) qualifying offense that their plea subjects them to potential indefinite civil commitment to a secure medical facility. (Maj. opn., ante, at pp. 16–17.) As the court notes, civil commitment undеr the SVPA is a “significant deprivation of liberty.” (Id. at p. 15.) ” ‘[J]ustice demands’ ” the exercise of our supervisory power to ensure that defendants are aware of the SVPA consequences of their plea. (Id. at p. 13.)
I would go further to resolve an underlying issue that the parties have fully briefed: whether defense counsel have a constitutional duty to advise their clients of the SVPA consequences of a potential plea. The answer, under established Sixth Amendment principles, is yes. In this case, counsel‘s failure to advise defendant Victor Tellez of the SVPA consequences of his plea was constitutionally deficient performance.
I also write to underscore that today‘s new supervisory rule is consistent with one we announced a half century ago in Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell). Bunnell required courts to advise defendants of all “direct consequences” of their guilty or no contеst plea, including, specifically, the possibility of civil commitment under the prior sex offender commitment statute. (Ibid.) Although today‘s
I.
The federal and state constitutions guarantee a criminal defendant the right to effective assistance of counsel. (
To establish deficient performance, a defendant must demonstrate “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, supra, 466 U.S. at p. 687.) Courts examine “whether counsel‘s assistance was reasonable considering all the circumstances.” (Id. at p. 688.) In making this determination, courts may look to “[p]revailing norms of practice as reflected in American Bar Association standards and the like . . . [as] guides to determining what is reasonable,” but “[n]o particular set of detailed rules for counsel‘s conduct can
Plea negotiation “is a critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California constitutions.” (In re Alvernaz (1992) 2 Cal.4th 924, 933 (Alvernaz).) Like “most criminal defendants,” Tellez was “faced with the crucial decision whether to plead guilty pursuant to a plea bargain or instead proceed to trial.” (Ibid.) “Although this decision ultimately is one made by the defendant, it is the attorney, not the client, who is particularly qualified to make an informed evaluation of a proffered plea bargain. The defendant can be expected to rely on counsel‘s independent evaluation of the charges, the applicable law, and evidence, and of the risks and probable outcome of trial.” (Ibid.)
It is undisputed that Tellez‘s counsel did not advise him of the consequences of pleading guilty to
Plea Form Section 7f
This omission is also contrary to “prevailing professional norms” for criminal defense attorneys in California. (Strickland, supra, 466 U.S. at p. 690.) Amici curiae Contra Costa Public Defender and the California Public Defenders Association assert, and the Attorney General does not dispute, that advice on SVPA consequences is standard practice among public defenders in this state. Amici curiae attached evidence from the public defenders of five counties — Los Angeles, San Francisco, Cоntra Costa, San Bernardino, and Ventura — stating that their practice is to advise clients when a possible SVPA proceeding is a risk of conviction.
An attorney working in the San Bernardino County Public Defender‘s Office for over two decades declared that his unit is
Further, the American Bar Association (ABA) Standards for Criminal Justice section 14-3.2(f) provides that “defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.” (ABA Stds. for Crim. Justice (3d ed. 1999) std. 14-3.2, subd. (f), p. 9; see also ABA Criminal Justice Section, Plea Bargain Task Force Report (2023), p. 26 [“Defense attorneys, at minimum, should review potential collateral consequences with a client before the client accepts a plea.“].) The ABA commentary for this standard makes clear that defense counsel should ensure they are aware specifically of the consequences that attend to convictions for “controlled substance crimes and sex offenses because convictions for such offense conduct are,
The failure to advise of SVPA consequences is also constitutionally inadequate under the logic of Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla). In Padilla, the high court held that failure to advise criminal defendants of the immigration consequences of their guilty plea violates the Sixth Amendment. (Id. at pp. 360, 374.) The court noted that it has “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” (Id. at p. 365; see id. at p. 364 [“collateral matters” are “those matters not within the sentencing authority of the state trial court“].) Advisement of the risk of deportation was constitutionally required because removal, though сivil in nature, is “a particularly severe ‘penalty’ ” that is “intimately related to the criminal process” and has become a “nearly an automatic result for a broad class of noncitizen offenders.” (Id. at pp. 365–366). Given the risk of deportation‘s “close connection to the criminal process,” the court determined that Strickland applied and that immigration advisement is a prevailing professional norm. (Id. at p. 366; see id. at pp. 366–369.)
Although the Attorney General says civil commitment is not an “automatic” result of a guilty plea to an SVPA-qualifying offense, neither is deportation. Like an order of removal, commitment under the SVPA is imposed only after additional, separate civil proceedings. Further, screening for civil commitment is an automatic result for anyone who pleads guilty to an SVPA-qualifying offense and is sentenced to a prison term. (
In sum, defense counsel have a constitutional obligation to advise their clients of the potential for civil commitment under the SVPA when entering a plea to a qualifying offense.
II.
Today‘s opinion announces a new supervisory rule requiring trial courts to advise defendant of the potential SVPA consequences of their guilty or no contest plea. (Maj. opn., ante, at p. 14.) This salutary result breaks little new ground. As the court notes, we announced an analogous rule nearly 50 years ago in Bunnell, supra, 13 Cal.3d 592. Bunnell instructed: “In all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any (е.g., [
In Bunnell, we characterized both sex offender civil commitment and sex offender civil registration as “direct consequences of conviction,” and required trial courts to advise defendants as to both before accepting a guilty plea. (Bunnell, supra, 13 Cal.3d at p. 605.) The SVPA differs from the prior statute in that under the former scheme, the superior court could order civil commitment proceedings in lieu of criminal sentencing for eligible offenders. (See People v. Moore (1998) 69 Cal.App.4th 626, 633.) But the statutes share a common purpose: treatment of sex offenders. They both may result in indefinite civil commitment to the state hospital system. Under both regimes, a commitment order could be made only after extensive civil prоceedings; it could not be directly ordered by
As noted, Padilla cast doubt on the relevance of the distinction between “direct” and “collateral” consequences for determining whether defense counsel have a constitutional duty to advise clients prior to entering a guilty or no contest plea. (See Padilla, supra, 559 U.S. at pp. 365–366.) But even if classification of a consequence as “direct” is relevant to defining the scope of the court‘s advisement duty (maj. opn., ante, at p. 16 [citing cases]), today‘s decision — separate and apart from its announcement of a рrospective supervisory rule — does not foreclose relief for defendants who pleaded guilty to an SVPA-qualifying offense without advisement if they are able to demonstrate prejudice.
LIU, J.
I Concur:
EVANS, J.