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.
1 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).
2 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.
3 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
4 “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.
5 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
6 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.
7 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
8 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
9 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)
10 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)).
11 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
12 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
13 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
14 (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.