18 Cal.App.5th 476
Cal. Ct. App.2017Background
- Defendant Thomas Tennard was convicted by jury of felony corporal injury to a cohabitant (Pen. Code § 273.5, subd. (a)) based on a 2015 beating of his girlfriend. Victim died before trial; prosecution relied on 911 call and other statements/medical evidence.
- The information alleged four prison priors (§ 667.5(b)) and two strike priors (robbery and 1991 forcible rape). Under a special-allegation heading it listed Penal Code § 667 (including subdivision (e)(2)(A)) and the prior rape identified by statute and described as “RAPE BY FORCE.”
- The trial court found the priors true, denied a Romero motion, and sentenced defendant to a 25-years-to-life indeterminate term under the Three Strikes Reform Act (§ 667(e)(2)(A)), plus consecutive/stayed one-year prison prior terms.
- Defendant argued on appeal the prosecution failed to specifically plead and prove that the prior rape was a disqualifying “super strike” under § 667(e)(2)(C)(iv)(I), so the court lacked authority to impose the indeterminate 25-to-life term and he was entitled to a doubled determinate sentence (maximum 8 years). He also argued due process notice was lacking.
- Appellate court affirmed the sentence, holding the information (which listed the rape by statute and referenced § 667(e)(2)(A)) provided adequate pleading/notice that the rape was a disqualifying super-strike; remanded only to correct the abstract of judgment to show presentence credits were awarded under § 4019 rather than § 2933.1.
Issues
| Issue | People’s Argument | Tennard’s Argument | Held |
|---|---|---|---|
| Whether the prosecution was required to expressly plead that the prior forcible rape was a § 667(e)(2)(C)(iv) “super strike” (specific citation to that subparagraph) before seeking a 25‑to‑life indeterminate term | The information’s special-allegation language (listing § 667 and § 667(e)(2)(A)) plus identification of the rape by statute and as “rape by force” sufficiently pleaded and gave notice that a disqualifying super‑strike would be relied on | The information was insufficiently specific because it did not expressly cite § 667(e)(2)(C) or allege the prior rape was a sexually violent offense/disqualifying super‑strike; thus the indeterminate term was unauthorized | Affirmed: statute requires the prosecution to “plead and prove” an applicable exception but not by particularized statutory citation; listing the prior by statute and referencing § 667(e)(2)(A) gave adequate notice that the rape was a disqualifying super‑strike and supported the 25‑to‑life term |
| Whether defendant was deprived of due process notice that the prosecution would seek an indeterminate term | The pleading satisfied notice requirements; no surprise at sentencing given allegations and trial-stage recognition of the rape prior | Lack of explicit § 667(e)(2)(C) citation deprived Tennard of fair notice of the enhanced penalty | Held: no due process violation; defendant had reasonable opportunity to defend and was not surprised |
| Whether the abstract of judgment correctly reflected presentence custody credit authority | N/A | The abstract incorrectly cited § 2933.1; credits were awarded under § 4019 | Remand to correct abstract to show 680 days credit under § 4019 |
Key Cases Cited
- People v. Johnson, 61 Cal.4th 674 (explaining interaction of Three Strikes Reform Act and exceptions/disqualifying "super strikes")
- People v. Mancebo, 27 Cal.4th 735 (notice/pleading requirements for enhancements)
- People v. Romero, 13 Cal.4th 497 (discussing motion to strike prior strikes)
- People v. Houston, 54 Cal.4th 1186 (due process right to notice of enhancements)
- People v. Mitchell, 26 Cal.4th 181 (appellate correction of trial court record errors)