People v. Tennard

226 Cal. Rptr. 3d 652, 18 Cal. App. 5th 476
CourtCalifornia Court of Appeal, 5th District
DecidedDecember 13, 2017
DocketE065086
StatusPublished
Cited by13 cases

This text of 226 Cal. Rptr. 3d 652 (People v. Tennard) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Tennard, 226 Cal. Rptr. 3d 652, 18 Cal. App. 5th 476 (Cal. Ct. App. 2017).

Opinion

FIELDS, J.

*480I. 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), *481(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 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.

*654We 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

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, *482"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 "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 *655forcible 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.) *483III. 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 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, 189 Cal.Rptr.3d 794, 352 P.3d 366 ( Johnson ); see also People v. Conley (2016) 63 Cal.4th 646, 651, 203 Cal.Rptr.3d 622

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Cite This Page — Counsel Stack

Bluebook (online)
226 Cal. Rptr. 3d 652, 18 Cal. App. 5th 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tennard-calctapp5d-2017.