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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
2
also admitted having a prior strike (§§ 667, subds. (b)-(i), 1170.12). Defendant entered
his plea and admission with the understanding that he would receive a “four-year top,”
that he could file a Romero motion,2 that the remaining counts and allegation would be
submitted for dismissal at the time of sentencing, and that he would be admitting that he
violated probation in other cases.
In early 2015, the trial court appointed a psychotherapist to examine defendant at
his counsel’s request pursuant to Evidence Code section 1017, and to make the result of
the examination available to defendant’s counsel.
C. Sentencing and Appeal
Defendant filed a statement in mitigation and requested that the trial court strike
his prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant sought to be placed on probation. The prosecutor filed opposition to
defendant’s Romero motion and requested that defendant be sentenced to four years in
prison. In the probation report, the probation officer observed that defendant’s criminal
history included two felony convictions and 29 misdemeanor convictions. Regarding the
victim in the instant case, defendant had been arrested for assaulting her on four other
occasions, and he was on probation in at least three cases at the time of the offense. The
probation officer ultimately recommended the mitigated term in order “to stay within the
confines of the 4 year top.”
On April 10, 2015, the trial court denied defendant’s request to strike his prior
strike and sentenced defendant to four years in prison. The court based its decision on
the current offense, defendant’s past criminal history, and his character and prospects.
Defendant’s prison term was based on the lower term of two years, doubled. The court
granted 404 days of custody credits and ordered defendant to pay various fines and fees.
2
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
3
The remaining counts and allegation were dismissed. The court also sentenced defendant
in a separate misdemeanor case and terminated his probation in three other cases.
Defendant filed a timely notice of appeal and we appointed counsel to represent
him in this court.
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no
arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The judgment is affirmed.
4
____________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
_________________________________
ELIA, ACTING P.J.
_________________________________
MIHARA, J.