People v. TennardPeople v. Tennard
A jury convicted defendant and appellant, Thomas Raymillier Tennard, Jr., of a nonstrike felony: inflicting corporal injury resulting in a traumatic condition upon his cohabitant girlfriend, M.L. (
Pursuant to the Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6, 2012)), defendant was sentenced to 25 years to life in prison for his domestic violence conviction, even though it was neither a serious nor a violent felony. (§ 667, subd. (e)(2)(A).) Because his prior forcible rape conviction was a "super strike," defendant was disqualified from being sentenced to a lesser term of "twice the term otherwise provided" for a domestic violence cоnviction. (§ 667, subd. (e)(1),
In this appeal, defendant claims the court had no authority to impose the 25-year-to-life term. He argues the prosecution erroneously failed to specifically "plead and prove" that his prior forcible rape conviction was a supеr strike which disqualified him or rendered him ineligible to be sentenced as a second strike offender to twice the term otherwise provided for his current felony conviction pursuant to section 667, subdivision (e)(1). (§ 667, subd. (e)(2)(C).) For a felony domestic violence conviction which is not a strike, the "term otherwise provided as punishment" (§ 667, subd. (e)(1)) is two, three, or four years (
II. FACTS AND PROCEDURAL BACKGROUND
A. Factual Background
On January 16, 2015, defendant was living in an apartment with his girlfriend, M.L. That evening defendant punched M.L. in her face with closed fists and slammed her head backward against a wall. He dragged M.L. into the bathroom and forced her to take a shower to wash the blood out of her hаir.
M.L. called 911 after defendant left the bathroom. During the 911 call, M.L. begged for help, said she was "bleeding all over the place" and defendant was forcing her to shower because he did not want anyone "to see blood." In the background of the 911 call defendant was heard yelling to M.L. to "take a shower" and "[g]et in the shower." When responding deputies arrived at the apartment, defendant was standing outside. He said,
Inside the apartment, M.L. was found "shaking and trembling" and described how defendant had just beaten her and slammed her head against a wall. M.L. had a bleeding gash on the back of her head, bruising and swelling around her eyes and face, abrasions and swelling on her lips, and a fractured and blоody nose. Her left eye socket was also fractured, her pants were covered with fresh blood, and there was blood on the floor. Defendant was arrested, and M.L. was transported to a hospital.
B. Procedural History
Defendant was charged in an information with felony domestic violence (
After the jury convicted defendant of the felony domestic violence charge, the court found the four prison prior and two strike prior allegations true. At sentencing, the court denied defendant's Romero
A. Statutory Background
Under the former "Three Strikes" law, as enacted in 1994 (§ 667, subds. (b)-(i)), a defendant convicted of any felony who had two or more prior serious or violent felony convictions, or prior strikes, was required to be sеntenced to a "third strike sentence" of a minimum of 25 years to life-even if the defendant's current felony was neither serious nor violent. (Former §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A); People v. Johnson (2015)
Thus, when a defendant has two prior strikes and his current felony is not a strike, the defendant is to be sentenced pursuant to section 667, subdivision (e)(1)-that is, as if the defendant had only one prior strike -to twice the term otherwise provided for the current felony, unless one of the exceptions or disqualifying factors described in subdivision (e)(2)(C) applies. ( Johnson , supra ,
As noted, for nonstrike felony domestic violence, the "term otherwise provided as punishment," within the meaning of section 667, subdivision (e)(1), is two, three, or four years. (
Section 667, subdivision (e)(2)(A) provides: "Except as provided in subparagraph (C) , if a defendant has two or more prior serious and/or violent felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious and/or violent felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court pursuаnt to Section 1170 for the underlying conviction, including any enhancement. ..." (Italics added; see also § 667, subd. (e)(2)(B) [consecutive sentencing].) The greatest of these three minimum terms is 25 years. (§ 667, subd. (e)(2)(A)(ii).)
Section 667, subdivision (e)(2)(C) provides: "If a defendant has two or more prior serious and/or violent felony convictions ... that have been pled and proved, and the current offense is not a serious or violent felony as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and proves any of the following[.]" Subdivision (e)(2)(C) then lists, in subparagraphs (i) through (iv), the exceptions or disqualifying factors which render a defendant ineligible to be sentenced as a second strike offender pursuant to subdivision (e)(1). Each of these disqualifying factors relаte either to the defendant's current offense (§ 667, subd. (e)(2)(C)(i)-(iii)) or to the defendant's prior "super strikes," if any (id ., subd. (e)(2)(C)(iv); Johnson , supra , 61 Cal.4th at pp. 681-682 & fns. 2-3,
Johnson summarized the exceptions that relate to the defendant's current offense: "If the current offense involves controlled substances and specified findings are made concerning the quantity of controlled substances involved, or if the current offense is among specified sex offenses, a dеfendant with two or more strikes must be sentenced to a term of at least 25 years to life. (§§ 667, subd. (e)(2)(C)(i)-(ii), 1170.12, subd. (c)(2)(C)(i)-(ii).) A third strike sentence is also required if, '[d]uring the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)" (
The disqualifying prior strike convictions listed in Penal Code section 667, subdivision (e)(2)(C)(iv) are sometimes referred to as " 'super strikes.' " ( Johnson , supra ,
B. Defendant's Pleading Specificity and Due Process Claims Lack Merit
Defendant claims his 25-year-to-life sentence for his current conviction, which was imposed pursuant to Penal Code
Defendant's argument requires us to interpret the second pleading and proof requirement of
The language of
The plain language of
The "notice" pleading requirements of section 952, which apply to charging an offense, offer guidance in interpreting the second pleading and proof requirement of
Under the "special allegation" heading, the information referenced section "667," subdivisions "(c) and (e)(2)(A)," and their initiative counterparts, section "1170.12, subdivision (с), subsection (2)(a)." It alleged that defendant had two or more "serious and violent" felony convictions, "within the meaning of Penal Code
These allegаtions were sufficient to satisfy both of the pleading and proof requirements of
The allegation of the forcible rape conviction, which was identified by its code seсtion number, Penal Code
Defendant unavailingly relies on several cases in whiсh the defendants' enhanced sentences were either disapproved or reversed on the grounds the factual or statutory bases of the enhancements were either not alleged at all ( People v. Mancebo, supra,
C. Correction of Abstract of Judgment
Lastly, defendant claims and we agree that the abstract of judgment must be corrected to show defendant was awarded 680 total days of presentence custody credits (340 actual days, plus 340 days for good conduct), pursuant to section 4019 rather than section 2933.1 as the abstrаct indicates. The reporter's transcript shows that the credits were awarded pursuant to section 4019, not section 2933.1, which applies only to violent current felonies. ( People v. Mitchell (2001)
IV. DISPOSITION
The matter is remanded to the trial court with directions to prepare an amended or corrected abstract of judgment showing that dеfendant's 680 days of presentence custody credits (340 days actual, 340 days good conduct) were
We concur:
RAMIREZ, P. J.
SLOUGH, J.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The court imposed consecutive one-year terms for all four prison priors (§ 667.5, subd. (b)), but stayed its imposition of sentence on three of the four, one-year terms (§ 654).
M.L. died before trial. The prosecution's case was based on M.L.'s statements during the 911 call, her statements to deputies who responded to the apartment, and the observations of the deрuties and medical personnel.
People v. Superior Court(Romero) (1996)
Felony domestic violence (