IAC if Attorney Does Not Warn of SVP Consequences?

In 2016, the People of the State of California charged Victor Raul Tellez of committing three act of lewd and lascivious conduct three different victims under age 14, each a violation of Penal Code § 288(a).

In San Diego County Superior Court, he pled guilty to one count and as a factual basis for the plea, admitted that he willfully touched the back of a child under the age of 14 years with the intent to arouse his own sexual desires.  The then agreed to a three-year prison term and the People dismissed the other two counts.  Mr. Tellez was remanded to state prison in 2017. 

He was released in 2019 and the next day, was arrested and arraigned on a petition for involuntary confinement under the Sexually Violent Predator Act (SVPA; Welfare & Institutions Code § 6600, et seq.).  Tellez remains in jail while the commitment proceedings are pending.

On March 2, 2021, Tellez filed a petition for writ of habeas corpus in the San Diego Superior Court, alleging ineffective assistance of counsel (IAC) because Tellez failed to obtain a potentially exculpatory psychological evaluation that when he touched the victim he was too intoxicated to form the specific intent required for the conviction.

Tellez further alleged that his attorney was incompetent for failing to tell him that after release from prison, he could be involuntarily committed for life under the SVPA.  Tellez claims he would not have pled guilty and would have instead gone to trial but for counsel’s deficient performance.

The San Diego County Superior Court judge assigned to the petition denied the petition.

Tellez filed a new claim of ineffective assistance of counsel in the Fourth Appellate District Court in San Diego, which the Fourth District denied as well.  In a nutshell, he claims that his plea was not knowing, intelligent and voluntary as required under the Sixth Amendment because he did not know he could be subject to lifetime commitment under the SVPA, analogizing such a commitment to deportation of a noncitizen, wherein a non-citizen may vacate his or her conviction under Penal Code § 1473.7(a)(1) for counsel’s failure to advise the non-citizen about adverse immigration consequences of a plea.  Padilla v. Kentucky (2010) 559 U.S. 356 (codified at Penal Code § 1016.3(a)).

Tellez then appealed to the California Supreme Court, which remanded the matter back to the Fourth Appellate District with directions for the Secretary of the Department of Corrections and Rehabilitation “to show cause , why relief should not be granted on the ground trial counsel rendered ineffective assistance of counsel by failing to advise [Tellez] of the potential for commitment as a sexually violent predator as a consequence of his plea.”

The Fourth Appellate District then denied Tellez’s petition for a writ of habeas corpus, explaining that IAC is evaluated at the time of the attorney’s performance, not at the time of the petition.  The court then explained that when Tellez entered his plea, his chances of being committed as an SVP depended on a future evaluation of defendant years later that evaluated if he was that disordered that he was likely to reoffend, matters that were unrelated to his plea.

The Fourth Appellate Court contrasted an SVP proceeding with a deportation proceeding, wherein the deportation proceeding could proceed directly from the plea alone.  In other words, the deportation consequences were enmeshed in the plea as direct consequences, whereas an SVP proceeding was not enmeshed in the plea itself and were more collateral consequences.

Moreover, the Fourth Appellate District explained that it had ruled on the exact same claim of IAC for failure to advise of SVP consequences in People v. Codinha (2021) 71 Cal. App. 5th 1047 and found the argument unmeritorious.  The Fourth Appellate District found no reason not to adopt the same conclusion.

We present this summary because, while we do warn clients of the potential SVP proceedings after one’s jail or prison commitment ends, courts have held that this is not required.  Moreover, whenever we discuss this with clients, it is with the caveat that if the client does well on a later examination, such a commitment will not follow.

For more information about SVP and IAC issues, please click on the following articles: