People v. Tennard

Filed 12/13/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E065086

v. (Super.Ct.No. SWF1500345)

THOMAS RAYMILLIER TENNARD, OPINION
JR.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,

Judge. Affirmed with directions.

Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Arlene A. Sevidal and Alan L.

Amann, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

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. (Pen. Code, § 273.5, subd. (a).)1 The court found defendant

had four prison priors (§ 667.5, subd. (b)) and two prior strikes (§ 667, subds. (b)-(i)),

including a 1991 conviction for forcible rape, a “super strike” (§§ 261, subd. (a)(2), 667,

subd. (e)(2)(c)(iv)(I)).

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 conviction. (§ 667, subd. (e)(1),

(e)(2)(C)(iv)(I).) Defendant was sentenced to a consecutive one-year term for one of his

four prison priors.2 (§ 667.5, subd. (b).)

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 super strike which disqualified him or

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 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).

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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 (§ 273.5, subd. (a)). Thus, defendant argues, the court was only authorized to

sentence him to a maximum of eight years (four years, doubled) on his current

conviction. (§§ 667, subd. (e)(1), 273.5, subd. (a).) In addition to his statutory claim,

defendant claims he was deprived of his due process right to notice that the prosecution

would seek an indeterminate term on his current conviction.

We remand the matter with directions to correct the abstract of judgment to reflect

that defendant’s presentence custody credits were awarded pursuant to section 4019, not

section 2933.1. In all other respects, we affirm the judgment.

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 hair.3

3 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 deputies and medical personnel.

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 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, “you’re probably looking for me,” and that he had just argued with M.L. The

sweatshirt he was wearing was wet in the front.

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 bloody 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 (§ 273.5,

subd. (a).) The information alleged defendant had four prison priors (§ 667.5, subd. (b))

based on four prior convictions: a 1985 robbery conviction (§ 211), a 1991 forcible rape

conviction (§ 261, subd. (a)(2)), a 1997 conviction for failing to register as a sex offender

(§ 290, subd. (g)(2)), and a 2003 theft conviction (§ 666). The information included a

single “special allegation” that the robbery and forcible rape convictions were “serious

and violent” felonies. Under the “special allegation” heading, the information referenced

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“sections 667, subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c), subsection

(2)(a)” but did not reference section 667, subdivision (e)(1)(C). The information also did

not specifically allege that defendant’s prior forcible rape conviction disqualified him or

rendered him ineligible for sentencing under section 667, subdivision (e)(1), or that the

prosecution intended to seek an indeterminate 25-year-to-life term for defendant’s

current, nonstrike offense.

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 Romero4 motion to strike one or both of the strike priors. In

arguing the motion, defense counsel acknowledged that defendant’s forcible rape

conviction required the court to sentence him to 25 years to life. Defense counsel told the

court: “So what [defendant] is hoping for is to strike one or more of his prior strikes. In

particular, the [forcible] rape prior, because [it] . . . could obviously lead to a life

sentence. . . .” (Italics added.)

III. DISCUSSION

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 sentenced to a “third strike sentence” of a

minimum of 25 years to life—even if the defendant’s current felony was neither serious

4 People v. Superior Court (Romero) 1996 13 Cal.4th 497.

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nor violent. (Former §§ 667, subds. (d), (e)(2(A), 1170.12, subds. (b), (c)(2)(A); People

v. Johnson (2015) 61 Cal.4th 674, 680-681 & fn. 1 (Johnson); see also People v. Conley

(2016) 63 Cal.4th 646, 651.) The Three Strikes Reform Act of 2012 amended the Three

Strikes law to reduce the punishment prescribed for defendants convicted of a current

felony that is neither serious nor violent. (Johnson, supra, at p. 681.) The Johnson court

explained: “In that circumstance, unless an exception applies, the defendant is to receive

a second strike sentence of twice the term otherwise provided for the current felony,

pursuant to the provisions that apply when a defendant has one prior conviction for a

serious or violent felony [i.e., pursuant to section 667, subdivision (e)(1)]. (§§ 667, subd.

(e)(2)(C), 1170.12, subd. (c)(2)(C) . . . .)” (Ibid., italics added.)

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, 61 Cal.4th at p. 681.) Violent felonies

are listed in section 667.5, subdivision (c) and serious felonies are listed in sections

1192.7, subdivision (c), and 1192.8. (§ 667, subd. (d); Johnson, supra, at p. 681.)

Defendant’s two prior strikes—for forcible rape (§ 261, subd. (a)(2)) and robbery

(§ 211)—are both violent felonies (§ 667.5, subd. (c)(3), (9)). Defendant’s current

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conviction (§ 273.5, subd. (a)) is neither a serious nor a violent felony (see § 667, subd.

(d)), and is therefore not a strike.5

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. (§ 273.5, subd. (a).) Thus, if no exception or disqualifying factor applies,

defendant was required to be sentenced to a maximum of eight years (twice the upper

term of four years) on his domestic violence conviction. (§§ 667, subd. (e)(1), (e)(2)(C),

273.5, subd. (a).) But if an exception applies, the court was required to sentence

defendant, as it did, to “an indeterminate term of life imprisonment . . . .” (§ 667, subd.

(e)(2)(A).) The minimum term of defendant’s indeterminate term was 25 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)

5 Felony domestic violence (§ 273.5, subd. (a)) is a violent felony if it was
charged and proved, under specified statutes, that the defendant personally inflicted great
bodily injury on a person other than an accomplice or personally used a firearm in the
commission of the offense (§ 667.5, subd. (c)(8)). Felony domestic violence is a serious
felony if the defendant personally used a dangerous or deadly weapon in the commission
of the offense. (§ 1192.7, subd. (c)(23).) None of these circumstances were alleged or
proved in this case.

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Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court

pursuant 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 relate 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 defendant 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

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weapon, or intended to cause great bodily injury to another person.’ (§§ 667, subd.

(e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).)” (Johnson, supra, 61 Cal.4th at p. 681 & fn.

2.) Regarding the exceptions that relate to the defendant’s prior super strikes, if any,

Johnson explained: “[A] defendant will be excluded from the new sentencing provisions

if he or she suffered a prior conviction for specified sex offenses, any homicide offense or

attempted homicide offense defined in sections 187 through 191.5, solicitation to commit

murder, assault with a machine gun on a peace officer or firefighter, possession of a

weapon of mass destruction, or any serious or violent felony punishable in California by

life imprisonment or death. (§§ 667, subd. (e)(2)(C)(iv), 1170.12, subd. (c)(2)(C)(iv).)”

(Id. at pp. 681-682, italics added.)

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,

61 Cal.4th at p. 682.) The “specified . . . sex offenses” listed in Penal Code section 667,

subdivision (e)(2)(C)(iv) include “‘sexually violent offense[s]’” as defined in subdivision

(b) of section 6600 of the Welfare and Institutions Code. (Pen. Code, § 667, subd.

(e)(2)(C)(iv)(I); Johnson, supra, at p. 681, fn. 3.) The sexually violent offenses defined

in Welfare and Institutions Code section 6600, subdivision (b) include forcible rape (Pen.

Code, § 261, subd. (a)(2)), one of defendant’s two prior strikes.

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 section 667, subdivision (e)(2)(A), is an

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unauthorized sentence. He claims the prosecution was required to specifically plead, in

the information, that his forcible rape conviction was a super strike, a disqualifying factor

and an exception which rendered him ineligible to be sentenced as a second strike

offender to twice the term otherwise provided for his current conviction. (Pen. Code,

§ 667, subd. (e)(1), (e)(2)(C).) He argues the information was insufficiently specific

because it did not reference Penal Code section 667, subdivision (e)(2)(C) or expressly

allege that his prior forcible rape conviction was a sexually violent offense and a

disqualifying factor within the meaning of Penal Code section 667, subdivision

(e)(2)(C)(iv)(I) and Welfare and Institutions Code section 6600, subdivision (b).

Defendant’s argument requires us to interpret the second pleading and proof

requirement of section 667, subdivision (e)(2)(C). “‘In construing a statute, our first task

is to look to the language of the statute itself.’” (People v. Mancebo (2002) 27 Cal.4th

735, 743.) If the language is clear and unambiguous, it is to be applied according to its

plain terms, and in the context of the entire statute and the statutory scheme of which it is

a part. (Ibid.) “Words used in a statute . . . should be given the meaning they bear in

ordinary use.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)

As noted, 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 . . . the defendant shall be

sentenced pursuant to paragraph (1) of subdivision (e) unless the prosecution pleads and

proves any of the following[.]” (Italics added.) The statute then lists, in subparagraphs (i)

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through (iv), the exceptions to second strike sentencing eligibility that are based on the

defendant’s current offense and prior super strikes, if any. (§ 667, subd. (e)(2)(C)(i)-(iv);

Johnson, supra, 61 Cal.4th at pp. 681-682 & fns. 2-3 [describing exceptions].)

The language of section 667, subdivision (e)(2)(C) is clear and unambiguous and

governs our interpretation of the statute. Subdivision (e)(2)(C) has two pleading and

proof requirements. The first requires the prosecution to plead and prove that the

defendant has two or more prior strikes. This is plainly necessary because subdivision

(e)(2)(C) applies only if the defendant has two or more prior strikes and the current

offense is not a strike. (§ 667, subd. (e)(2)(C).) The second pleading and proof

requirement requires the prosecution to plead and prove that “any” of the exceptions to

second strike sentencing eligibility listed in subdivision (e)(2)(C)(i) through (iv) apply.

The question defendant raises requires us to determine the level of specificity that is

required to plead that an exception to second strike sentencing eligibility applies.

The plain language of section 667, subdivision (e)(2)(C) only requires the

prosecution to “plead and prove” that “any” of the exceptions to second strike sentencing

eligibility set forth in subparagraphs (i) through (iv) apply. Neither subdivision (e)(2)(C)

nor any other part of section 667 requires the prosecution to specifically “plead and

prove” that an exception applies by using any particular language or by referencing the

particular subparagraph of the exception or disqualifying factor. As noted, all of the

exceptions are based either on the defendant’s current conviction (§ 667, subd.

(e)(2)(C)(i)-(iii)) or on specified super strike convictions (id., subd. (e)(2)(C)(iv)).

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 The “notice” pleading requirements of section 952, which apply to charging an

offense, offer guidance in interpreting the second pleading and proof requirement of

section 667, subdivision (e)(2)(C). Section 952 states it is “‘sufficient if [the charge]

contains[,] in substance, a statement that the accused has committed some public offense

therein specified,’” which “may be alleged ‘. . . in any words sufficient to give the

accused notice of the offense of which he [or she] is accused.’” (People v. Carrington

(2009) 47 Cal.4th 145, 182, italics added.) Likewise, a defendant’s due process right to

be informed of the charges is satisfied when the charging document affords the defendant

“a reasonable opportunity to prepare and present a defense” and the defendant “is not

taken by surprise by the evidence offered at trial.” (People v. Ramirez (2003) 109

Cal.App.4th 992, 999.) This due process standard does not apply solely to charged

crimes; it applies to enhancement allegations that increase the punishment for the charged

crimes. (People v. Houston (2012) 54 Cal.4th 1186, 1227 [“A defendant has a due

process right to fair notice of the allegations that will be invoked to increase the

punishment for his or her crimes.”]; In re Varnell (2003) 30 Cal.4th 1132, 1140.)

Under the “special allegation” heading, the information referenced section “667,”

subdivisions “(c) and (e)(2)(A),” and their initiative counterparts, section “1170.12,

subdivision (c), subsection (2)(a).” It alleged that defendant had two or more “serious

and violent” felony convictions, “within the meaning of Penal Code sections 667,

subdivisions (c) and (e)(2)(A), and 1170.12, subdivision (c), subsection (2)(a).” It also

listed the dates, places, and code section numbers of defendant’s prior robbery and prior

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forcible rape convictions and identified the forcible rape conviction as “RAPE BY

FORCE.”

These allegations were sufficient to satisfy both of the pleading and proof

requirements of section 667, subdivision (e)(2)(C) and defendant’s due process right to

notice that the prosecution would seek an indeterminate term on his current nonstrike

felony conviction, pursuant to subdivision (e)(2)(A). As noted, subdivision (e)(2)(A)

requires the court to impose an indeterminate term on a current, nonstrike felony, when

the defendant has two or more prior strikes. By its terms, subdivision (e)(2)(A) applies

“[e]xcept as provided in subparagraph (C),” and subparagraph (C) requires the defendant

to be sentenced as a second strike offender pursuant to subdivision (e)(1) (that is, as if the

defendant had only one prior strike) unless an exception applies.

The allegation of the forcible rape conviction, which was identified by its code

section number, Penal Code section 261, subdivision (a)(2), and as “RAPE BY FORCE,”

sufficiently notified defendant that the prosecution would seek to disqualify him from

second strike sentencing eligibility, pursuant to Penal Code section 667, subdivision

(e)(1), based on the forcible rape conviction. Although Penal Code section 667,

subdivision (e)(2)(C) was not referenced in the information, it was not required to be. It

was effectively noted by the reference to Penal Code section 667, subdivision

“(e)(2)(A),” which specifically references, in its introductory clause, section 667,

subdivision (e)(2)(C) as an exception to its provisions. The information also specifically

alleged that defendant has a prior conviction for “rape by force,” which is a super strike

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described in Welfare and Institutions Code section 6600, subdivision (b), a disqualifying

factor identified in Penal Code section 667, subdivision (e)(2)(C)(iv)(I).

Defendant unavailingly relies on several cases in which 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, 27

Cal.4th 735 at pp. 738-739, 742-745 [disapproving uncontested multiple victim

circumstance enhancements which were not alleged in the information as a basis for

imposing enhanced sentences under “One Strike” law]) or were insufficiently alleged

(People v. Wilford (2017) 12 Cal.App.4th 827, 835-836, 840-841 [reversing § 273.5,

subd. (f)(1) enhancements where information included § 273.5, subd. (h)(1) allegation

but not § 273.5, subd. (f)(1) allegation]; People v. Sawyers (2017) 15 Cal.App.4th 713,

725-726 [reversing Three Strikes law sentence where information did not allege prior

conviction was a strike but instead alleged the conviction was a basis for imposing one-

year prison prior under § 667.5, subd. (b)].) These cases are distinguishable. As

explained, the information sufficiently alleged defendant’s prior forcible rape conviction

as the basis upon which the People would seek a 25-year-to-life sentence under section

667, subdivision (e)(2)(A), and it was unnecessary for the information to reference

subdivision (e)(2)(C) in addition to (e)(2)(A).

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

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(340 actual days, plus 340 days for good conduct), pursuant to section 4019 rather than

section 2933.1 as the abstract 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) 26 Cal.4th 181, 186-188 [appellate court

may correct errors in trial court records].)

IV. DISPOSITION

The matter is remanded to the trial court with directions to prepare an amended or

corrected abstract of judgment showing that defendant’s 680 days of presentence custody

credits (340 days actual, 340 days good conduct) were awarded pursuant to section 4019,

not section 2933.1. The court is further directed to forward a copy of the corrected

abstract to the Department of Corrections and Rehabilitation. In all other respects, the

judgment is affirmed.

CERTIFIED FOR PUBLICATION

FIELDS
J.

We concur:

RAMIREZ
P. J.

SLOUGH
J.

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