In re Tellez, D079716

CourtCalifornia Court of Appeals
Writing for the CourtIRION, J.
PartiesIn re VICTOR RAUL TELLEZ on Habeas Corpus.
Docket NumberD079716
Decision Date18 October 2022

In re VICTOR RAUL TELLEZ on Habeas Corpus.


California Court of Appeals, Fourth District, First Division

October 18, 2022

ORIGINAL PROCEEDING in habeas corpus San Diego County Super. Ct. No. SCE369196. Petition denied.

Megan Marcotte, Chief Deputy Alternate Public Defender, Vickie Fernandes, Gilson Gray and Anthony Parker, Deputy Alternate Public Defenders, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Nora Weyl, and Joy Utomi, Deputy Attorneys General, for Respondent.


By petition for writ of habeas corpus, Victor Raul Tellez asks this court to vacate his conviction based on a plea of guilty to committing a lewd and lascivious act on a child under the age of 14 years. He complains his appointed counsel provided ineffective assistance by failing to advise him before the plea that he could be subject to lifetime commitment as a sexually


violent predator after service of the prison term. As we shall explain, Tellez has not stated a prima facie case for relief. We therefore deny the petition.



The People charged Tellez with three counts of committing a lewd and lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a)), each of which involved a different victim. Tellez pled guilty to one count, and as the factual basis for the plea admitted he willfully touched the back of a child under the age of 14 years with the intent to arouse his own sexual desires. He also stipulated to a three-year prison term. In exchange, the People dismissed the two other counts. The court imposed the stipulated prison term on December 20, 2017.

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; Welf. & Inst. Code, § 6600 et seq.) the following day. Tellez remains in jail while the commitment proceedings are pending.

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 psychological 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


an order to show cause on the claim of failure to advise of the potential SVPA commitment and receiving a return from the district attorney, the court denied that claim as well.

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 transferred 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.



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


been advised of a possible SVPA commitment, he would not have pled guilty and would have proceeded to trial. Tellez asks us to vacate his conviction. [1]

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 Penal Code section 1237.5.[2] The Secretary further responds that, based on this court's recent decision that counsel had no duty to advise the defendant of the potential SVPA consequences of pleading guilty to felony indecent exposure (People v. Codinha (2021) 71 Cal.App.5th 1047 (Codinha)) and based on the lack of any independent objective corroborating evidence supporting Tellez's claim he would not have pled guilty had counsel advised


him of those consequences, Tellez has not stated a prima facie case of ineffective assistance of counsel. The Secretary urges us to deny the petition.

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 laboring 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 counsel was ineffective for failing to advise him of potential SVPA commitment: untimeliness and noncompliance with Penal Code section 1237.5. We decline to consider these procedural bars. "Because the Supreme Court transferred the case to us specifically to address the substantive issue[ ] of whether [counsel was ineffective for failing to advise Tellez of the potential SVPA consequences of his guilty plea], and because the issuance of an order to show cause indicates the Supreme Court has determined the claim is not procedurally barred [citations], we address the merits only." (In re Smith (2020) 49 Cal.App.5th 377, 386.)


C. Merits

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. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) A defendant challenging a conviction on the ground that counsel was ineffective generally must show "counsel's performance was deficient" and "the deficient performance prejudiced the defense." (Strickland, at p. 687; accord, Ledesma, at pp. 216-217.) In the context of a challenge to a conviction based on a guilty plea, the defendant must show" 'counsel's representation fell below an objective standard of reasonableness'" and "there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." (Hill v. Lockhart (1985) 474 U.S. 52, 57, 59 (Hill); accord, People v. DeJesus (2019) 37 Cal.App.5th 1124, 1136 (DeJesus); People v. Breslin (2012) 205 Cal.App.4th 1409, 1420.) As we discuss below, Tellez has established neither deficient performance nor prejudice.

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


large amount of marijuana would make him subject to automatic deportation. Tellez acknowledges we found this comparison "inapt" in Codinha, supra, 71 Cal.App.5th at page 1065. We do so again in this case.

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...

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