Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. MF007398A. John D. Oglesby, Judge.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., Kane, J.
On May 6, 2006, in the afternoon, Leopoldo Romero drove to the market with his wife and four children in a minivan. As Romero left his apartment he saw appellant, Claude Julian Powell, outside his apartment across the street making gestures at him with his hands. Romero had to return to get his wallet and parked in front of his apartment. Powell continued making gestures at Romero and ran into his apartment to get a bat. Powell ran to the rear of Romero’s van and used the bat to break the back window next to where Romero’s daughters, ages 11 and 5, were sitting. Romero got out of the car and Powell hit him on a knee with the bat, dislocating it and causing Romero to fall to the ground. Powell tried to hit Romero again, but instead ran away when Romero’s brothers intervened. The shattered glass caused red splotches on the back of Romero’s 11-year-old daughter.
On May 30, 2006, the district attorney filed an information charging Powell with two counts of felony child endangerment (counts 2 & 3/Pen. Code, § 273a, subd. (a)), and one count each of assault with a deadly weapon (count 1/§ 245, subd. (a)(1)), misdemeanor vandalism (count 4/§ 594 (b)(2)(a)), and felony vandalism (count 5/§ 594, subd. (b)(1)). The information also alleged a prior prison term enhancement (§ 667.5, subd. (b)) and that Powell had a prior conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code.
On November 28, 2006, Powell pled guilty to the assault charge and admitted the strike allegation in exchange for the dismissal of the remaining counts and enhancement.
At Powell’s sentencing hearing on January 23, 2007, defense counsel made an oral Romero motion. After hearing counsels’ arguments, the court denied the motion and sentenced Powell to the middle term of three years on his assault conviction, doubled to six years because of Powell’s prior strike conviction.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Powell’s appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed July 12, 2007, Powell questions why his 1999 conviction for making criminal threats (§ 422) was used as a strike in the instant proceedings when he was told at his 1999 sentencing that it was not a strike.
Section 667, subdivision (d)(1) defines as a prior strike conviction: “Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.”
Prior to 2000, making criminal threats in violation of section 422 was not listed under either section. However, the passage of Proposition 21 in 2000 added section 422 to the serious felonies listed in section 1192.7, subdivision (c). (§ 1192.7, subd. (c)(38); Initiative Measure (Prop. 21, § 17, approved March 7, 2000, eff. March 8, 2000).) Further, the three strikes law applies to convictions predating its March 7, 1994, effective date. (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1304.) Thus, even though making criminal threats was not a strike when Powell was convicted of this offense, the trial court properly found a strike based on this conviction because making criminal threats became a strike conviction with the passage of Proposition 21 in 2000.
Following independent review of the record we find that no reasonably arguable factual or legal issues exist.
The judgment is affirmed.