In re Tellez
I.
BACKGROUND
The People charged Tellez with three counts of committing a lewd and lascivious act on a child under the age of 14 years (
Tellez was released from prison on parole on August 1, 2019. He was immediately arrested and was arraigned on a petition for involuntary commitment under the Sexually Violent Predator Act (SVPA;
On March 2, 2021, Tellez filed in the superior court a petition for writ of habeas corpus alleging ineffective assistance of counsel. He alleged that as a result of inadequate investigation, counsel failed to obtain a potentially exculpatory psychologiсal evaluation that when he touched the victim he was too intoxicated to form the specific intent required for conviction. Tellez further alleged counsel was incompetent for failing to tell him that after release from prison he could be involuntarily committed for life under the SVPA. Tellez claimed he would not have pled guilty and would have gone to trial but for counsel‘s deficient performance. The superior court summarily denied the claim of inadequate investigation as untimely; and, after issuing
Tellez continued to press his claims of ineffective assistance of counsel by filing a new petition for writ of habeas corpus in this court. We summarily denied the petition as procedurally barred and for failure to state a prima facie case for relief. The Supreme Court of California granted Tellez‘s petition for review and transfеrred the matter to this court with directions to vacate our summary denial order and to issue an order directing the Secretary of the Department of Corrections and Rehabilitation (the Secretary) “to show cause, why relief should not be granted on the ground trial counsel rendered ineffective assistance by failing to advise [Tellez] of the potential for commitment as a sexually violent predator as a consequence of his plea.” We complied, and the Secretary filed a return and Tellez a traverse.
II.
DISCUSSION
A. Parties’ Contentions
Tellez contends his decision to waive his trial-related rights and plead guilty was not knowing, intelligent, and voluntary, because counsel failed to tell him that by doing so he could be subject to lifetime commitment under the SVPA. Analogizing to deportation as a consequence of a guilty plea by a noncitizen, Tellez contends an SVPA commitment is such “an extremely ‘serious sanction’ ” that counsel must advise the defendant of the possibility of its imposition before the defendant pleads guilty, and if counsel fails to do so the defendant may withdraw the plea. He further contends that had he
The Secretary responds that the petition is procedurally barred because it is untimely and because Tellez did not appeal the judgment of conviction and obtain the certificate of probable cause to attack the validity of the guilty plea required by
In reply, Tellez argues his petition is not time-barred, because he did not unreasonably delay by seeking habeas corpus relief within 17 months of the appointment of current counsel. On the merits, he again argues that as consequences of guilty pleas, SVPA commitment and deportation are analogous; and since counsel must advise about potential deportation, counsel must also advise about potential SVPA commitment. Tellez “recognizes the weight of the labоring oar in urging the Court to re-examine its decision [in Codinha, supra, 71 Cal.App.5th 1047] in a slightly different context.” He suggests as bases for distinction that Codinha relied on the absence of a statutory duty to advise of SVPA consequences whereas he argues the duty “is Constitutionally enmeshed in the 6th Amendment,” and that in Codinha the prospect of an SVPA commitment “remained in the realm of ‘possibility’ as a consequence” whereas in his case it is “presently occurring.”
B. Procedural Bars
As noted, the Secretary raises two procedural bars to consideration of the merits of Tellez‘s claim that cоunsel was ineffective for failing to advise him of potential SVPA commitment: untimeliness and noncompliance with
We now turn to whether Tellez has made out a claim of ineffective assistance of counsel entitling him to habeas corpus relief. The federal and state Constitutions guarantee a criminal defendant the right to effective assistance of counsel. (
1. Deficient Performance
The deficient performance of which Tellez complains is counsel‘s failure to tell him before he pled guilty that after service of the prison term he could be involuntarily committed as a sexually violent predator for life. Tellez cites no directly on-point authority that counsel had a duty to advise him of that consequence. He instead compares SVPA commitment to deportation as a serious consequence of a guilty plea and relies mainly on Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), which held counsel performed deficiently by failing to advise a noncitizen that his plea of guilty to transportation of a
In Padilla, counsel advised the defendant to plead guilty and incorrectly advised him that he ” ’ “did not have to worry about immigration status” ’ ” because he had been a lawful permanent resident of the United States for more than 40 years. (Padilla, supra, 559 U.S. at p. 359.) Because “the relevant immigration statute [was] succinct, clear, and explicit in defining the removal consequence for Padilla‘s conviction” and “his deportation was presumptively mandatory,” the United States Supreme Court held that counsel had a duty to give correct advice and the failure to do so was constitutionally deficient performance. (Id. at pp. 368-369.) In holding that “counsel must inform her client whether his plea carries a risk of deportation,” the high court stated that its “longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impаct of deportation on families living lawfully in this country demand no less.” (Padilla, at p. 374.)
The Legislature codified the holding of Padilla, supra, 559 U.S. 356, in 2015 when it enacted a statute providing that “[d]efense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition.” (
In imposing a constitutional duty on defense counsel to warn a noncitizen defendant about deportation as a consequence of a guilty plea in Padilla, the United States Supreme Court noted that “as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (Padilla, supra, 559 U.S. at p. 364, fn. omitted.) The high court went on to explаin that because “deportation is a particularly severe ‘penalty’ ” that is “intimately related to the criminal process” and is “nearly an automatic result for a broad class of noncitizen offenders,” the court found it ” ‘most difficult’ to divorce the penalty from the conviction in the deportation context.” (Id. at pp. 365-366.) Citing standards promulgated by the American Bar Association and other organizations, the high court also stated, “The weight of prevailing professional norms supports the view that counsel must advise her сlient regarding the risk of deportation.” (Id. at pp. 367-368.) The high court further noted “the terms of the relevant immigration statute [were] succinct, clear, and explicit in
These factors do not support imposition of a duty on counsel to advise a client that civil commitment under the SVPA is a potential consequence of a guilty plea to certain sex crimes. “Unlike the potential immigration consequences for a noncitizen defendant convicted of certain crimes, potential SVP[A] consequences are neither ‘enmeshed’ in and ‘intimately related to the criminal process’ nor ‘nearly an automatic result’ for many offenses.” (Codinha, supra, 71 Cal.App.5th at p. 1069.) Rather, commitment under the SVPA requires an additional, multistep process. Prisоn officials first screen a person convicted of a qualifying sex crime to determine whether the person is likely a sexually violent predator. (
It also does not appear “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of [SVPA commitment].” (Padilla, supra, 559 U.S. at p. 367.) Tellez has cited no professional guidelines or other similar sources supporting imposition of such a duty, even though it is his burden to show “counsel‘s representation fell below an objective standard of reasonableness.” (Strickland, supra, 466 U.S. at p. 688; accord, In re Hernandez (2019) 33 Cal.App.5th 530, 543.) Our own independent research found no clear direction from professional organizations on the subject. A guideline from the National Legal Aid and
We adhere to our conclusion in this case and note that in doing so we agree with the majority of courts in other jurisdictions that have ruled on the matter. For example, the Missouri Court of Appeals repeatedly has held defense counsel has no duty to advise the defendant of the possibility of an SVPA commitment, because it is a collateral consequence of a guilty plea. (Carter v. State (Mo.Ct.App. 2007) 215 S.W.3d 206, 210-211; Harris v. State (Mo.Ct.App. 2006) 204 S.W.3d 371, 374-375; Morales v. State (Mo.Ct.App. 2003) 104 S.W.3d 432, 435-437.) Earlier this year, the same court noted that unlike deportation, civil commitment under the SVPA “is not ‘uniquely difficult’ to classify as direct or collateral” and is not “a ‘presumptively mandatory’ consequence” of a sex crime conviction, and therefore ” ‘[t]he well-established principle that plea counsel is not ineffective for failing to inform a defendant of the collateral consequences of a guilty pleа is unaffected by Padilla.” (Fields v. State (Mo.Ct.App. 2022) 642 S.W.3d 774, 778, 779.) The Supreme Court of Wisconsin similarly “rel[ied] on the many factors that differentiate the possibility of [an SVPA] commitment from the unique consequence of deportation,” including that commitment is not an automatic result of the guilty plea and serves a rehabilitative rather than a punitive
Tellez nevertheless urges us to re-examine our decision in Codinha, supra, 71 Cal.App.5th 1047, in what he calls “a slightly different context.” He asserts that in Codinha “the prospect of a[n] SVP[A] commitment rеmained in the realm of ‘possibility’ as a consequence,” because the defendant had not yet served his prison term, but in this case he has been released from prison and “faces the very real prospect of a lifetime in a State hospital” based on the pending SVPA commitment proceeding against him. This difference between the two cases does not affect our decision here. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” (Strickland, supra, 466 U.S. at p. 689, italics added.) “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct.” (Id. at p. 690, italics added; accord, Ledesma, supra, 43 Cal.3d at p. 216 [court must “assess the reasonableness of counsel‘s acts or omissions . . . under the circumstancеs as they stood at the time that counsel acted or failed to act“].) As was the situation in Codinha, when counsel here failed to advise the client that if he pled guilty he could be committed under the SVPA after he served his prison term, any such commitment would occur, if at all, years in the future and was far from certain. Moreover, as we have discussed, the professional norms prevailing at the time of the plea did not clearly require counsel to give such advice and still do not do so. The fact that Tellez now faces an SVPA commitment
2. Prejudice
We turn finally to the prejudice prong of Tellez‘s claim of ineffective assistance of counsel. Tellez bears the burden to show that had counsel advised him of the potential SVPA commitment consequence before he pled guilty, he would not have done so and instead would have proceeded to trial. (Hill, supra, 474 U.S. at p. 59; DeJesus, supra, 37 Cal.App.5th at p. 1136.) The only evidence Tellez offered concerning prejudice is his own declaration, in which he stated: “Had my attorney told me about the possibility of lifetime incarceration as a sexually violent predator because of my guilty plea, I would not have pled guilty.” Such a self-serving “allegation that trial counsel failed to properly advise a defendant is meaningless unless there is objective corroborating evidence supporting [the] claimed failures.” (People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) “Our Supreme Court has stated that a defendant‘s claim that ‘he would not have pled guilty if given competent advice “must bе corroborated independently by objective evidence.” ’ ” (People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664; see People v. Vivar (2021) 11 Cal.5th 510, 530; In re Resendiz (2001) 25 Cal.4th 230, 253 (lead opn. of Werdegar, J.); In re Alvernaz (1992) 2 Cal.4th 924, 938.) “A contrary holding would lead to an unchecked flow of easily fabricated claims.” (Alvernaz, at p. 938.) Tellez “offered no contemporaneous evidence such as an affidavit and/or testimony by trial counsel, or counsel‘s files, notes, or . . . correspondence.” (Abdelsalam, at p. 664.) We ” ‘may reject an assertion that is not supported by an explanation or other corroborating circumstances.’ ” (Ibid.)
DISPOSITION
The petition is denied.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.