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Name: People v. Tennard
Case #: E065086
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 12/13/2017

The prosecution properly pled and proved a “super strike” to disqualify defendant from being sentenced as a second strike offender even though the information did not specifically state that his prior forcible rape conviction was a “super strike.” Tennard was convicted of spousal battery (Pen. Code, § 273.5, subd. (a)). Two prior serious felonies were found true. The trial court imposed a life Three Strikes sentence because one of Tennard’s strike priors was forcible rape, which is a “super strike” and disqualified him from being sentenced as a second strike offender under the Strikes Reform Act of 2012 (Prop. 36). Tennard challenged his sentence, arguing that the disqualifying prior was not properly pled and proved at trial. Held: Affirmed. Under the Reform Act, a defendant with two or more strike priors whose current felony is not a strike must be sentenced as a second strike offender unless the prosecution pleads and proves (1) that he has two or more strikes and (2) “any” enumerated disqualifying factors. (Pen. Code, § 667, subd. (e)(2)(C).) One of the disqualifying factors is that the defendant has a prior conviction for a “super strike,” which includes forcible rape (Pen. Code, § 261, subd. (a)(2)). To plead that an exception to second strike sentencing eligibility applies, no particular language or statutory reference to the particular subparagraph of the exception is required. Here, the information identified the nature of the strike offenses, citing Penal Code section 667, subdivisions (c) and (e)(2)(A). It did not specifically allege that the prosecution intended to seek an indeterminate 25-year-to-life term and did not cite subdivision (e)(2)(C). However, this was sufficient to satisfy the pleading and proof requirements of section 667, subdivision (e)(2)(C) and to provide notice to defendant that the prosecution would seek an indeterminate sentence.

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