People v. Henry CA6

Filed 12/7/15 P. v. Henry CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042356 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1493545)

v.

MARVIN HENRY,

Defendant and Appellant.

Defendant Marvin Henry appeals after pleading no contest to inflicting corporal injury upon a cohabitant with a specified prior conviction (Pen. Code, § 273.5, subd. (f)(2)),1 and admitting that he had a prior strike (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to four years in prison. On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. Defendant requested and was granted a 60-day extension of time. The extended period has elapsed and we have received no response from defendant. Pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme

1 All further statutory references are to the Penal Code unless otherwise indicated.

Court’s direction in People v. Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.

BACKGROUND A. Offense As defendant was convicted by plea, the following facts are taken from the probation officer’s report. In September 2014, a witness told the police that defendant and the victim had been in an argument and that defendant had punched the victim in the face several times. As the victim attempted to flee, defendant forcefully threw her to the ground and kicked her numerous times. When witnesses told defendant to leave the victim alone, defendant stopped and walked away, threatening to kill the witnesses if they contacted the police. The victim had swelling on one side of her face and blood near her mouth. She did not cooperate with the police and she refused medical attention. Defendant had been involved in prior incidents of domestic violence against the victim. B. Charges and Plea On September 24, 2014, defendant was charged by complaint with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 1), inflicting corporal injury upon a cohabitant with a prior conviction under section 243, subdivision (e) within the preceding seven years (§ 273.5, subd. (f)(2); count 2), attempting to dissuade a victim or witness from reporting a crime (§ 136.1, subd. (b)(1); count 3), misdemeanor violation of a protective order with physical injury (§ 273.6, subd. (b); count 4), and four counts of misdemeanor criminal contempt for violating a protective order or stay-away order (§ 166, subd. (c)(1); counts 5 - 8). The complaint further alleged that defendant had a prior serious felony conviction and a prior strike (§§ 667, subds. (a), (b)-(i), 1170.12). On December 29, 2014, defendant pleaded no contest to inflicting corporal injury upon a cohabitant with a specified prior conviction (§ 273.5, subd. (f)(2); count 2). He