Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, and petition for writ of habeas corpus. Robert P. Ahern, Judge. (Retired Judge of the Santa Clara S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. SCD200953
McCONNELL, P. J.
Allen Bernard Mann entered a negotiated guilty plea to one count of possession of marijuana for sale (Health & Saf. Code, § 11359) and admitted a prior serious/violent felony or strike conviction. (Pen. Code, § 667, subds. (b)-(i)). Under the plea bargain, which stipulated a 32-month prison term, the prosecution agreed to dismiss the remaining offenses and allegations contained in the information. The trial court sentenced Mann to 32 months in prison.
Further statutory references are to the Penal Code.
FACTS
On August 18 San Diego Police Officer Christopher Tews stopped a vehicle driven by Mann. Tews walked over to the vehicle and, as he talked to Mann, he smelled marijuana through the open driver side window and saw a metallic pipe in the ashtray. Mann gave Tews consent to search the vehicle. Mann stepped outside the vehicle and gave Tews consent to search him. Tews found a case containing numerous baggies of marijuana in a pocket of Mann's pants. The total weight of the marijuana seized was 30.32 grams. Detective Mel Lofftus of the Narcotics Street Teams Unit opined that possession of that amount of marijuana was for purposes of sale.
The prior strike conviction was a 1997 conviction of making a terrorist threat. (§ 422.)
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Counsel has not referred us to any possible, but not arguable issues pursuant to Anders v. California (1967) 386 U.S. 738.
We granted Mann permission to file a brief on his own behalf. Mann has not filed a supplemental appellate brief but has filed a petition for writ of habeas corpus in which he claims he received ineffective assistance of counsel. We have ordered the appeal and the petition consolidated.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Mann on this appeal.
In his propria persona petition for habeas corpus, Mann claims he received ineffective assistance of counsel because his attorney did not file a motion to have his prior strike conviction dismissed on the ground that making a terrorist threat was not an offense in 1997.
"To prevail on a claim of ineffective assistance of counsel, defendant 'must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.' " (People v. Hart (1999) 20 Cal.4th 546, 623.) Prejudice occurs only if the record demonstrates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Lucero (2000) 23 Cal.4th 692, 728.)
Although Mann is correct that in 1997 making a terrorist threat was not a strike, he cannot show either deficient performance by counsel or prejudice.
For purposes of the "Three Strikes" law, a "serious felony" is a crime defined in section 1192.7, subdivision (c); a "violent felony" is a crime defined in section 667.5, subdivision (c). (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1305; § 667, subd. (d)(1).)
During the March 7, 2000 Primary Election, the voters approved Proposition 21, an initiative measure known as the Gang Violence and Juvenile Crime Prevention Act of 1998. (People v. James (2001) 91 Cal.App.4th 1147, 1149.) Proposition 21 amended section 1192.7 by adding the crime of making a terrorist threat (§ 422), among others, to the list of "serious felonies" enumerated in that section. (§ 1192.7, subd. (c)(38).)
Proposition 21 also added sections 667.1 and 1170.125. (People v. James, supra, 91 Cal.App.4th at p. 1149.) Section 667.1 provides: " '[F]or all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act.' " Section 1170.125 contained similar language. Proposition 21 became effective on March 8, 2000. (James, at p. 1149.)
Section 1170.125 reads: "Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."
By virtue of Proposition 21, Mann's 1997 conviction of making a terrorist threat became a strike within the Three Strikes law as of March 8, 2000. (People v. James, supra, 91 Cal.App.4th at pp. 1150-1151.) A motion to dismiss the prior strike conviction of making a terrorist threat would have been futile, and since counsel need not make futile motions, counsel provided adequate representation. (People v. Smithey (1999) 20 Cal.4th 936, 992.) Hence, there was no prejudice.
To the extent Mann argues that treating his 1997 conviction of making a terrorist threat as a strike violates the expost facto clauses of the federal and state constitutions (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9), he is mistaken. "[T]he constitutionality of 'retroactive' application is well settled. 'In the context of habitual criminal statutes, "increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender and arise as an incident of the subsequent offense rather than constituting a penalty for the prior offense." [Citation.]' [Citations.]" (Gonzales v. Superior Court, supra, 37 Cal.App.4th at p. 1309.)
DISPOSITION
The judgment is affirmed; the petition for writ of habeas corpus is denied.
WE CONCUR: BENKE, J., HALLER, J.