Full Opinion

Filed 11/10/26 P. v. Evans CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F090174 Plaintiff and Respondent, (Super. Ct. No. F25900867) v. TAYLOR JEAN EVANS, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Stephanie Negin, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, David A. Lowe and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- * Before Franson, Acting P. J., Meehan, J. and Snauffer, J. Defendant and appellant Taylor Jean Evans appeals following her conviction by plea and sentencing for committing three sexual offenses against her minor child. She claims the trial court erred when it failed to advise her that her no contest plea carried potential consequences under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.), entitling her to remand and an opportunity to withdraw her plea. (In re Tellez (2024) 17 Cal.5th 77, 83–84 (Tellez).) We agree with the parties that the trial court erred by failing to give the advisement (Tellez, supra, 17 Cal.5th at pp. 83–84), but, in the absence of any showing of prejudice, we affirm the judgment (People v. Dillard (2017) 8 Cal.App.5th 657, 665, 667 (Dillard)). PROCEDURAL BACKGROUND On February 5, 2025, defendant and Ryan Michael Ariola, her boyfriend and codefendant, were arrested and charged by complaint with sexual offenses committed against defendant’s seven-year-old daughter. Defendant was charged with oral copulation or sexual penetration of a child 10 years old or younger, and committing a lewd act on a child. (Pen. Code, §§ 288.7, subd. (b) [count 1], 288, subd. (a) [count 2].)1 The complaint also alleged that on count 2, defendant engaged in substantial sexual conduct with a victim under 14 years of age and alleged aggravating sentencing factors for counts 1 and 2 based on the victim’s vulnerability and defendant’s abuse of a position of trust or confidence. (§ 1203.066, subd. (a)(8); Cal. Rules of Court, rule 4.421(a)(3), (11).) On June 18, 2025, pursuant to a negotiated plea agreement, the prosecutor filed an amended complaint adding a charge for committing a forcible lewd act on a child and a second charge of committing a lewd act on a child. (§§ 288, subd. (b)(1) [count 6], 288, subd. (a) [count 7].) The prosecutor dismissed the charge of oral copulation or sexual 1 All further undesignated statutory references are to the Penal Code. 2. penetration, which carries a mandatory a sentence of 15 years to life, and defendant pleaded no contest to one count of committing a forcible lewd act on a child and two counts of committing a lewd act on a child. At the sentencing hearing, the trial court denied defendant’s request to withdraw her plea on the ground that she felt pressured into making the decision quickly. (§ 1018.) In accordance with the terms of the plea agreement, the court sentenced her to the upper term of 10 years for committing a forcible lewd act on a child and two consecutive two- year terms for committing a lewd act on a child, for a total determinate term of 14 years in prison. (§ 1170.1, subd. (a).) Defendant filed a timely notice of appeal and obtained a certificate of probable cause. (§ 1237.5; People v. Johnson (2009) 47 Cal.4th 668, 676 (Johnson).) On appeal, defendant argues she is entitled to remand and an opportunity to withdraw her plea because the trial court failed to advise her of the potential SVPA consequences of her plea, in accordance with Tellez. The People concede the trial court erred under Tellez, but they contend defendant is not entitled to any relief because she has not demonstrated the error was prejudicial. We agree defendant has not shown prejudice and affirm the judgment. DISCUSSION I. Tellez In Tellez, the petitioner was convicted of three counts of violating section 288, subdivision (a), which is a qualifying offense under the SVPA.2 (Tellez, supra, 17 Cal.5th at p. 86.) In 2019, after completing his three-year prison term, he was taken into county custody and prosecutors initiated civil proceedings against him under the SVPA. 2 “The SVPA authorizes the involuntary civil commitment of convicted sex offenders after they have served their prison sentences if they are found beyond a reasonable doubt to be a ‘sexually violent predator’” (People v. Cannon (2025) 18 Cal.5th 497, 509; accord, Tellez, supra, 17 Cal.5th at p. 83.) 3. (Tellez, supra, at p. 86.) He thereafter sought habeas relief on the ground that his counsel’s failure to advise him of potential SVPA consequences constituted ineffective assistance of counsel (IAC). (Tellez, supra, at p. 86.) On review, the California Supreme Court found petitioner failed to demonstrate prejudice, but did not decide whether counsel rendered ineffective assistance. (Id. at p. 87.) In addition, as requested by the parties, the court exercised its “supervisory powers to require trial courts to advise criminal defendants of the potential SVPA consequences when they plead guilty or no contest to an SVPA-qualifying offense or when the court is aware that a defendant has previously been convicted of such an offense and is pleading guilty or no contest to a new offense.” (Tellez, supra, 17 Cal.5th at p. 91, citing Welf. & Inst. Code, § 6600, subd. (a)(2)(A).) The court concluded that “prudential and fairness considerations support a rule requiring trial courts to advise criminal defendants of potential SVPA consequences of a guilty or no contest plea. [Citation.] 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. (See [Welf. & Inst. Code,] §§ 6608.1, 6609 [noting conditions of release, including disclosure of identifying information to the public].) 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.” (Tellez, supra, at p. 92.) Tellez provided, “This rule shall apply prospectively from the date this opinion becomes final.” (Id. at p. 93.) 4. II. Error Defendant entered her plea almost nine months after the decision in Tellez became final. Her convictions for violating section 288 are qualifying offenses under the SVPA, but the trial court failed to advise her that the convictions carried potential SVPA consequences. (Tellez, supra, 17 Cal.5th at p. 86, citing Welf. & Inst. Code, § 6600, subd. (b); see Welf. & Inst. Code, § 6600.1.) Under these circumstances, the parties agree, as do we, that Tellez error occurred.3 III. No Showing of Prejudice In her opening brief, defendant seeks remand with the option to withdraw her plea. The People respond that because Tellez is silent on remedy, defendant must show good cause to withdraw her plea. (§ 1018; People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson) [“‘[m]istake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea’ under section 1018”].) In reply, defendant concedes the record is insufficient to show prejudice, but she requests remand so the trial court may determine whether the failure to advise her was prejudicial and, if so, permit her to withdraw her plea. (Citing Walker, supra, 54 Cal.3d at pp. 1022–1023.) 3 “[B]ecause ‘advisement as to the consequences of a plea is not constitutionally mandated,’ ‘the error is waived absent a timely objection.’” (People v. Villalobos (2012) 54 Cal.4th 177, 182 (Villalobos), quoting People v. Walker (1991) 54 Cal.3d 1013, 1022, 1023 (Walker) [overruled on another ground in Villalobos, supra, at p. 183]; accord, People v. Dickerson (2004) 122 Cal.App.4th 1374, 1381.) However, the California Supreme Court has cautioned that the procedural bar should not be applied where nothing in the record suggests the defendant had a reason to question the accuracy of the advisement. (In re Moser (1993) 6 Cal.4th 342, 352–353, fn. 8 (Moser).) Although defense counsel is presumed to know the law (People v. Blackburn (2015) 61 Cal.4th 1113, 1123–1124; People v. Barrett (2012) 54 Cal.4th 1081, 1105), nothing in the record suggests defendant would have been aware of the potential for SVPA consequences and the People do not claim defendant’s failure to object forfeits review of the issue. Given the relative recency of this new advisement requirement, assuming forfeiture applies, we will exercise our discretion to reach the issue. (People v. Potts (2019) 6 Cal.5th 1012, 1036; People v. McCullough (2013) 56 Cal.4th 589, 593.) 5. For the reasons that follow, we disagree that defendant is entitled to remand without a showing of prejudice. “[B]efore taking a guilty plea the trial court must admonish the defendant of both the constitutional rights that are being waived and the direct consequences of the plea.” (Walker, supra, 54 Cal.3d at p. 1022; accord, People v. Gurule (2002) 28 Cal.4th 557, 633–634; People v. Barella (1999) 20 Cal.4th 261, 266; Dillard, supra, 8 Cal.App.5th at p. 664.) “Unlike the admonition of constitutional rights, however, advisement as to the consequences of a plea is not constitutionally mandated. Rather, the rule compelling such advisement is ‘a judicially declared rule of criminal procedure’” (Walker, supra, at p. 1022; accord, Barella, supra, at p. 266; Dillard, supra, at p. 664), and “[i]f the consequence is only collateral, no advisement is required” (Gurule, supra, at p. 634; Dillard, supra, at p. 664).4 “‘[A] defendant (even on direct appeal) is entitled to relief based upon a trial court’s misadvisement only if the defendant establishes that he or she was prejudiced by the misadvisement .…’” (People v. McClellan (1993) 6 Cal.4th 367, 378 (McClellan), quoting Moser, supra, 6 Cal.4th at p. 352.)5 Thus, to show prejudicial error, defendant must demonstrate that it is reasonably probable she would not have entered into the plea if she had been advised of the potential SVPA consequences. (McClellan, supra, 6 Cal.4th at pp. 370, 378; Moser, supra, 6 Cal.4th at p. 352; Walker, supra, 54 Cal.3d at p. 1023; Dillard, supra, 8 Cal.App.5th at 4 In Tellez, the court did not determine the consequence was direct versus collateral and stated, “Whether commitment under the SVPA is characterized as a collateral or direct consequence, we note the particularly significant imposition on liberty a defendant faces under these circumstances, and we exercise our authority to impose an advisement duty here. Nothing we say here is intended to undermine the long-recognized distinction generally requiring court advisement only as to direct plea consequences.” (Tellez, supra, 17 Cal.5th at p. 92.) 5 In contrast, where the complete or partial failure to advise the defendant and take a waiver involves constitutionally protected rights, “‘a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.’” (People v. Farwell (2018) 5 Cal.5th 295, 301 (Farwell).) 6. p. 665.) Defendant concedes the present record does not show prejudice, but she nonetheless seeks remand for further proceedings in the trial court. Defendant did not challenge her plea in the trial court on the ground that her plea was uninformed due to the court’s failure to advise her of potential SVPA consequences so the trial record is undeveloped as to her present claim, but she fails to explain why her claim on direct appeal is exempt from the requirement that she show prejudice to obtain relief.6 (McClellan, supra, at p. 378.) Even when constitutional rights are at stake, an error in the required advisement is not reversible per se. (Farwell, supra, 5 Cal.5th at p. 305; People v. Cross (2015) 61 Cal.4th 164, 171.) By entering into the plea agreement, defendant benefitted significantly from the dismissal of count 1, violating section 288.7, which exposed her to a mandatory sentence of 15 years to life. The record also reflects that several months before the entry of her plea, one of defendant’s main concerns was shielding her child from the harm of having to testify. (Tellez, supra, 17 Cal.5th at p. 88 [“‘“priorities in seeking a plea bargain”’” relevant to prejudice inquiry].) Moreover, although defendant was not aware of the potential SVPA consequences, she was advised of and accepted the mandatory lifetime registration requirement under section 290, which “‘imposes a “substantial” and “onerous” burden [citations].’” (People v. Brandao (2012) 203 Cal.App.4th 436, 441, quoting People v. Hofsheier (2006) 37 Cal.4th 1185, 1197 [overruled on another ground in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 888].) Under these circumstances, nothing in the record suggests there is a reasonable probability defendant would have rejected the plea offer had she been advised of the potential SVPA consequences. (See Tellez, supra, at p. 90 [in IAC context, the petitioner’s “postconviction statement that he would not have accepted the plea deal had he been 6 Defendant does not challenge the trial court’s section 1018 ruling on review, but having succeeded in obtaining a certificate of probable cause, she is not limited to raising the issue she identified in the certificate. (Johnson, supra, 47 Cal.4th at p. 676.) 7. advised of the potential SVPA consequences does not satisfy his burden of establishing a reasonable probability that he would not have accepted the plea absent counsel’s alleged errors”].) Notably, in moving to withdraw her plea, defendant cited feeling pressured rather than a specific concern over any consequences she faced. As stated, defendant bears the burden of demonstrating the error complained of is prejudicial and she concedes the present record does not show prejudice. We agree and affirm the judgment. DISPOSITION The judgment is affirmed. 8.