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Name: People v. Towers
Case #: B188368
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 04/17/2007

A conviction for oral copulation by threatening retaliation is not a “strike.” Appellant was convicted of first degree burglary and two prior strikes, for a prior 1984 Tennessee second degree burglary and a 1989 conviction for oral copulation (former section 288a, subdivision (c).) Appellant contended that there was insufficient evidence to find that either conviction qualified as a serious or violent felony. He contended that violating section 288a by threatening retaliation under subdivision (c)(3) is not a serious felony, and because the record showed nothing about the factual nature of the conviction, it must be presumed that the conviction was based on that provision and therefore did not qualify as a strike. The appellate court reversed the three strikes finding as to the 288a. Even though a conviction for oral copulation by threat or duress is a strike, a threat of retaliation is not the same as duress. Although common sense suggests that threat of retaliation would constitute both duress and threat of great bodily injury, a review of the statute mandates a different conclusion. Since threat of retaliation was not a serious felony at the time of the present conviction, the finding that the 288a conviction qualified as a strike had to be reversed. However, there was sufficient evidence that the Tennessee conviction qualified as a strike, and therefore remand was required only for a new trial on the 288a conviction.