Counsel Must Warn Sex Offense Client of SVP Risk

The following summary of In re Victor Raul Tellez should be carefully understood by anyone who practices criminal defense because it describes a new obligation to warn a client, much like Padilla v. Kentucky (2010) 559 U.S. 356, 130 S. Ct. 1473, 559 U.S. 356 set forth a new duty to warn a non-citizen client of adverse immigration consequences of s conviction.

In Article 1816 on our website, we summarized the case of Mr. Tellez at the Fourth Appellate District Court, wherein he claimed, among other things, that his attorney rendered ineffective assistance of counsel (IAC) because he did not warn Mr. Tellez that he could be involuntarily committed as a sexually violent predator (SVP) upon completion of his prison term for a sex offense. 

The Fourth Appellate District rejected his claim of IAC, explaining that the determination of one as an SVP is at the end of one’s term of imprisonment, not at the time of the plea like in the immigration context in Padilla.  Whether one was regarded as a SVP depended on the prisoner’s dangerousness years or even decades after the plea, not at the time of the plea.  Therefore, the Fourth Appellate District was unwilling to impose such a duty on counsel and IAC was therefore not found.

Mr. Tellez appealed this ruling to the California Supreme Court and on August 26, 2024, the California Supreme Court agreed in part with Mr. Tellez.  

While the Supreme Court found that Mr. Tellez was unable to show that his attorney’s failure to advise him of possibly being committed as a Sexually Violent Predator prejudiced his decision to accept the plea bargain he did (therefore his habeas petition was denied), the Supreme Court did impose a new duty on trial court judges to advise criminal defendants of the potential SVP consequences of a guilty or no contest plea.

This new duty necessarily, we think, requires a criminal defense attorney to also advise the client of the potential for future civil commitment under the Sexually Violent Predator Act if the client faces SVP Act-qualifying offenses because the judge will warn the client at the time of the plea and defense counsel should answer any questions the client may have about his in advance so the judge does not need to do so.

In imposing this duty on trial court judges, the California Supreme Court acknowledged that “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 release can be severe, including mandatory public disclosure of such status and other personal information upon a community member's request.”

“Meanwhile, it is a relatively minor burden to advise criminal defendants of potential SVPA consequences.  Although we are mindful of imposing additional duties on trial courts, we conclude that the benefit of advising criminal defendants of the potential SVPA consequences of a guilty plea significantly outweighs the administrative burden.”

The Supreme Court said the trial court judge should advise the defendant along the following lines: “At the end of your sentence for this offense, you may be subject to screening by the State Department of State Hospitals to determine whether you qualify for trial as a sexually violent predator, which could result in your being committed to a secure medical facility indefinitely.” To ensure the record is complete, the court should also inquire whether the parties discussed the possibility of a disposition involving a plea to an offense that is not a sexually violent offense.

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.”

The Supreme Court decided to do this under its power “to formulate rules of procedure where justice demands it.”  Bollinger v. National Fire Ins. Co. (1944) 25 Cal. 2d 399, 410; see Code of Civil Procedure § 187. 

This duty, the California Supreme Court held, shall only apply prospectively, not retroactively.  This is important to note because otherwise, if it applied retroactively, every defendant currently committed as an SVP might raise such an ineffective assistance of counsel claim.