People v. Hempstead CA5

Filed 6/30/21 P. v. Hempstead CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081184 Plaintiff and Respondent, (Fresno Super. Ct. No. F19907981) v.

MARVIN RAY HEMPSTEAD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Glenda Allen- Hill, Judge. William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Levy, J. and Detjen, J.

INTRODUCTION Appellant and defendant Marvin Ray Hempstead pleaded no contest to a felony violation of Penal Code section 273.5, subdivision (f)1 and was sentenced to the indicated term of four years. On appeal, his appellate counsel has filed a brief that 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 (Wende).) We affirm. FACTS2 On November 30, 2019, defendant and his girlfriend (hereafter “victim”) had been in a dating relationship for six months and living together for two days. The victim returned to their residence that afternoon and discovered defendant had consumed half a 1.75-liter bottle of vodka. Defendant demanded that she take him somewhere. She refused and they argued about his drinking. Defendant slapped her neck and knocked her to the floor. He stood over her and said, “ ‘You think this is a game.’ ” Defendant then choked her with both his hands around her neck. The victim tried to kick him away but could not do so. She did not lose consciousness, but everything became “foggy.” She was able to grab her cell phone and call 911. Defendant let her go when she realized she called the police. When officers arrived at the residence, they observed blood on the victim’s lips and red marks around her neck. She was treated at the scene by emergency medical responders and did not required hospitalization. At her request, the officers issued a criminal protective order. The officers advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant said he became frustrated with the victim because he was going to miss going to his class. Defendant claimed that when she returned to their