The opinion
Filed 10/18/22; on transfer
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re VICTOR RAUL TELLEZ D079716
on (San Diego County
Super. Ct. No. SCE369196)
Habeas Corpus.
ORIGINAL PROCEEDING in habeas corpus. 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.
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 (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
2
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.
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
3
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
1 The petition also included claims that counsel was ineffective for failing
to conduct any pretrial investigation, failing to communicate with Tellez, and
failing to obtain a psychological evaluation that allegedly would have shown
he lacked criminal intent when he committed the lewd and lascivious act to
which he pled guilty. We rejected those claims in our initial order summarily
denying the petition. In vacating our order and directing us to issue an order
to show cause, the Supreme Court of California limited the order to show
cause to the claim that counsel was ineffective for failing to advise Tellez that
an SVPA commitment was a potential consequence of his guilty plea. We
therefore limit our discussion to that claim and again summarily deny
Tellez’s other claims. (See In re Price (2011) 51 Cal.4th 547, 549 [by limiting
order to show cause to single claim, Supreme Court implicitly determined
petitioner failed to state prima facie case on other claims]; People v. Duvall
(1995) 9 Cal.4th 464, 475 [court will summarily deny habeas corpus petition
if no prima facie case is stated].)
2 Penal Code section 1237.5 requires a defendant who wants to attack
the validity of a guilty plea to obtain from the trial court a certificate of
probable cause for the appeal. “A defendant who challenges the validity of
such a plea on the ground that trial counsel rendered ineffective assistance in
advice regarding the plea may not circumvent the requirements of section
1237.5 by seeking a writ of habeas corpus.” (In re Chavez (2003) 30 Cal.4th
643, 651.)
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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.)
5
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
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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 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 impact 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.” (Pen. Code, § 1016.3, subd. (a); see id., § 1016.2,
subd. (h) [stating legislative intent to codify Padilla]; Codinha, supra, 71
Cal.App.5th at p. 1065 & fns. 8 & 9 [discussing codification of Padilla].) As
we explained in Codinha, however, “[t]here are no similar statutes or
indications of a legislative intent that require defense counsel to advise their
clients of the potential SVP[A] consequences of the clients’ guilty pleas.”
(Codinha, at p. 1066.)
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Tellez responds that “[his] argument is not that there is a statutory
duty, but that the duty to advise of the consequences of a[n] SVP[A]
commitment is Constitutionally enmeshed in the 6th Amendment.” He
contends “[a]ny lawyer who represents the accused must have meaningful
disclosures and conversations with their clients as to the most important part
of the penalty they may face,” and relies on Padilla and another case (People
v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano)) in which the courts ruled
counsel performed deficiently by failing to advise noncitizens of the
deportation consequences of their guilty pleas. As we shall explain, we are
not persuaded advisement of a potential SVPA commitment is
constitutionally required.
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 explain 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 client 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
8
defining the removal consequence for Padilla’s conviction.” (Id. at p. 368.)3
The Soriano court similarly relied on American Bar Association standards
and the close and clear connection between conviction and deportability in
requiring counsel to advise the defendant of the deportation consequences of
the guilty plea. (Soriano, supra, 194 Cal.App.3d at pp. 1479-1482.)
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. Prison officials first screen a
person convicted of a qualifying sex crime to determine whether the person is
likely a sexually violent predator. (Welf. & Inst. Code, § 6601, subd. (b).) If
so, the person is referred for evaluation by two experts to determine whether
the person has a mental disorder that makes the person likely to commit acts
of sexual violence without appropriate treatment or confinement. (Id.,
§ 6601, subds. (d)-(f).) If the two experts agree, a request that a petition for
civil commitment be filed is sent to the designated counsel of the county
where the person committed the sex crime. (Id., § 6601, subds. (d), (f), (h)(1),
(i).) If the designated counsel agrees that commitment is appropriate,
3 “Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation of a
State, the United States or a foreign country relating to a controlled
substance . . . , other than a single offense involving possession for one’s own
use of 30 grams or less of marijuana, is deportable.” (8 U.S.C.
§ 1227(a)(2)(B)(i), quoted in Padilla, supra, 559 U.S. at p. 368.)
9
counsel then files a petition in the superior court. (Id., § 6601, subd. (i).) If a
petition is filed, the court holds a hearing to determine whether there is
probable cause to believe the person is likely to engage in sexually violent
behavior. (Id., § 6602, subd. (a).) If the court finds probable cause, a trial is
conducted on whether the person has a mental disorder that makes the
person likely to engage in sexually violent acts upon release from prison.
(Ibid.) The person has the right to a jury or court trial (id., § 6603, subd. (a)),
at which the trier of fact must find beyond a reasonable doubt that the person
is a sexually violent predator in order to commit the person (id., § 6604).
Hence, a finding that Tellez is a sexually violent predator subject to civil
commitment “would result only from new determinations years [after his
plea] of issues such as whether [he] was at that point mentally disordered
and likely to reoffend [citations]—matters which [were] not admitted by his
plea.” (People v. Moore (1998) 69 Cal.App.4th 626, 632; accord, Codinha, at
pp. 1067-1068.) Unlike the deportation consequence at issue in Padilla, an
SVPA commitment is neither a “presumptively mandatory” consequence of a
guilty plea nor “nearly an automatic result” of applying a “succinct, clear, and
explicit” statute to the plea. (Padilla, supra, 559 U.S. at pp. 366, 368, 369.)
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
10
Defender Association states that “counsel should be fully aware of, and make
sure the client is fully aware of . . . other consequences of conviction such as
deportation, and civil disabilities.” (NLADA, Performance Guidelines for
Criminal Defense Representation (4th ed. 2006) Guideline 6.2(a)(3).)
Deportation is specifically mentioned, but civil commitment as a sexually
violent predator is not. A guideline from the American Bar Association
states: “To the extent possible, 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(f),
p. 116.) The associated commentary asserts defense counsel should be aware
of the collateral consequences of sex crime convictions, because they are likely
to carry “serious and wide-ranging collateral consequences.” (Id., com. to
std. 14-3.2(f), p. 127.) The commentary urges counsel to “be familiar with,
and advise defendants of, all of the possible effects of conviction,” but
acknowledges that courts do not require “an expansive debriefing” on “every
likely effect of a plea in all circumstances.” (Id., com. to std. 14-3.2(f), p. 126.)
Instead, the commentary states, “[c]ourts generally distinguish between the
‘direct’ and ‘collateral’ consequences of a plea of guilty, holding that while the
defendant must receive advice regarding the former, counsel’s and the court’s
failure to consult with the defendant regarding the latter will not invalidate a
plea.” (Id., com. to std. 14-3.2(f), p. 126, fn. 25.) Noting the lack of statutes or
case law that might establish prevailing professional norms (Codinha, supra,
71 Cal.App.5th at p. 1068) and mindful that “we must be especially careful
about recognizing new grounds for attacking the validity of guilty pleas”
(Padilla, at p. 372; see Codinha, at p. 1069), in Codinha we adhered to the
established distinction between direct and collateral consequences of guilty
11
pleas to conclude that “[f]ailure of defense counsel to advise the defendant of
even the serious consequences associated with civil commitment proceedings
is not a basis on which to set aside a guilty plea” (Codinha, at p. 1069).4
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 plea 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
4 The United States Supreme Court did not have to consider “[w]hether
that distinction [was] appropriate” in Padilla “because of the unique nature
of deportation.” (Padilla, supra, 559 U.S. at p. 365.) “Even in Padilla [the
court] did not eschew the direct-collateral divide across the board. [Citation.]
Rather, [the court] relied on the special ‘nature of deportation’—the severity
of the penalty and the ‘automatic’ way it follows from conviction—to show
that ‘[t]he collateral versus direct distinction [was] ill-suited’ to dispose of
Padilla’s claim.” (Chaidez v. United States (2013) 568 U.S. 342, 355.)
12
purpose, to conclude that the “Sixth Amendment does not require defense
counsel to inform a client about the possibility of civil commitment.” (State v.
LeMere (Wis. 2016) 879 N.W.2d 580, 598-599.) Other courts have reached the
same conclusion for the same or similar reasons. (See, e.g., Kim v. Director,
Va. Dept. of Corrections (E.D.Va. 2015) 103 F.Supp.3d 749, 755-758; Watrous
v. State (Fla.Dist.Ct.App. 2001) 793 So.2d 6, 8-11; Gully v. State (Iowa
Ct.App. 2002) 658 N.W.2d 114, 121; Hamm v. State (S.C. 2013) 744 S.E.2d
503, 504-505; Thomas v. State (Tex.Ct.App. 2012) 365 S.W.3d 537, 542-544;
see also State v. Schaefer (Kan. 2016) 385 P.3d 918, 927 [holding counsel was
not ineffective for failing to advise defendant who pled guilty of potential
SVPA commitment when it was “no more than a remote possibility,” but
stating that on other facts probability of commitment may be high enough to
impose duty].)5 These cases support our conclusion in Codinha that the
failure of counsel to advise the defendant of the potential SVPA consequences
5 The highest court of at least one state has held that “defense counsel
has a minimal duty to advise a defendant who pleads guilty to a triggering
offense subject to the provision of the Sexually Violent Persons Commitment
Act that he will be evaluated for and may risk involuntary commitment after
completing his prison term.” (People v. Hughes (Ill. 2012) 983 N.E.2d 439,
457.) In imposing that duty, the court reasoned that “where the consequence
is severe, certain, and sufficiently enmeshed in the criminal process the sixth
amendment right to counsel may give rise to a basis for withdrawing a plea.”
(Id. at p. 456.) We agree an SVPA commitment may be a “severe”
consequence of pleading guilty to a qualifying sex crime, but as explained in
the text, we disagree it is “certain” or “sufficiently enmeshed in the criminal
process” such that it supports imposition of a constitutional duty on counsel
to advise the defendant of the potential consequence before pleading guilty.
(See Codinha, supra, 71 Cal.App.5th at p. 1069 [“potential SVP[A]
consequences are neither ‘enmeshed’ in and ‘intimately related to the
criminal process’ nor ‘nearly an automatic result’ for many offenses”]; State v.
LeMere, supra, 879 N.W.2d at pp. 597-598 [disagreeing with Hughes].)
13
of his guilty plea did not violate prevailing professional norms. (Codinha,
supra, 71 Cal.App.5th at pp. 1068-1069.)
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 remained
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 circumstances 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
14
proceeding therefore does not mean counsel performed deficiently by failing
to advise him of that potential consequence when he pled guilty.
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 be 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.)
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III.
DISPOSITION
The petition is denied.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
16