18 Cal. App. 5th 476
Cal. Ct. App. 5th2017Background
- Defendant Thomas R. Tennard Jr. was convicted of felony domestic violence (Pen. Code § 273.5, subd. (a)); he had two prior "strike" convictions (robbery and 1991 forcible rape) and four prison priors.
- Under the Three Strikes Reform Act (Prop. 36), a current nonstrike felony ordinarily receives a doubled (second-strike) term unless an exception applies; certain prior convictions ("super strikes") disqualify a defendant from second-strike treatment and mandate a 25-years-to-life indeterminate term.
- The charging information alleged the prior robbery and forcible rape by code section and labeled them "serious and violent" but did not explicitly cite Penal Code § 667(e)(2)(C) or allege that the rape was a super strike or that the prosecution would seek an indeterminate sentence.
- At sentencing the court found the priors true, denied the Romero motion, and imposed a 25-years-to-life term under § 667(e)(2)(A) because the forcible rape qualified as a super strike; a consecutive one-year prison-prior term was also imposed (one stayed).
- Defendant appealed, arguing the prosecution was required to specifically plead and prove that the prior rape was a super strike (and give notice of seeking an indeterminate term), and also challenged an error on the abstract of judgment regarding the statute granting presentence custody credits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecution was required to specifically plead that the prior forcible rape was a "super strike" under § 667(e)(2)(C)(iv) to authorize a 25‑to‑life term | Prosecution: alleging the prior convictions by code section and labeling them "serious and violent" sufficed to plead and give notice of the ground for seeking an indeterminate term | Tennard: the information was insufficiently specific because it did not reference § 667(e)(2)(C) or expressly allege the rape was a disqualifying "sexually violent offense" (a super strike) | Held: The information was sufficient. Pleading the priors by code section and identifying the rape as "RAPE BY FORCE" satisfied § 667(e)(2)(C)’s pleading/proof requirement and due process notice. |
| Whether the defendant was entitled to notice that prosecution sought an indeterminate 25‑to‑life sentence for a nonstrike current felony | Prosecution: the information’s allegations provided adequate notice of the priors and the consequences (given cross-reference to § 667(e)(2)(A) and listing of prior offense code sections) | Tennard: lacked fair notice of the enhanced punishment sought because § 667(e)(2)(C) was not expressly pled | Held: Due process satisfied; defendant had fair notice and was not surprised—information and references were adequate. |
| Whether cases reversing enhancements for lack of pleading require reversal here | Prosecution: prior cases are distinguishable because here the information specifically identified the prior rape by code section and as "rape by force" | Tennard: relied on precedents where enhancements were reversed for pleading deficiencies | Held: Distinguishable; cited cases do not compel reversal because the present information adequately alleged the relevant prior and put defendant on notice. |
| Whether the abstract of judgment misstated the statutory basis for presentence custody credits | Not applicable | Tennard: abstract listed § 2933.1 but credits were awarded under § 4019 | Held: Remand to correct abstract to reflect credits under § 4019 (340 actual + 340 conduct = 680 days). |
Key Cases Cited
- People v. Johnson, 61 Cal.4th 674 (describing interplay of Three Strikes Reform Act exceptions and "super strikes")
- People v. Conley, 63 Cal.4th 646 (context on Three Strikes sentencing after Prop. 36)
- People v. Mancebo, 27 Cal.4th 735 (statutory construction principles; reversing unalleged enhancements)
- People v. Carrington, 47 Cal.4th 145 (notice pleading under § 952; charges need only give notice in substance)
- People v. Ramirez, 109 Cal.App.4th 992 (due process notice standard for enhancements)
- People v. Houston, 54 Cal.4th 1186 (defendant’s right to fair notice of enhancement allegations)
- People v. Mitchell, 26 Cal.4th 181 (distinguishing statutes governing presentence custody credits and correcting trial records)