Filed 8/19/15 P. v. Coleman CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C078570

         v.                                                                      (Super. Ct. No. CRF14808)

MARCELUS EARL COLEMAN,

                   Defendant and Appellant.


         Appointed counsel for defendant Marcelus Earl Coleman asked this court to
review the record to determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) We find no arguable error that would
result in a disposition more favorable to defendant. However, we modify the judgment to
increase the domestic violence fee to the statutory minimum. We also order a correction
of the order setting forth the terms and conditions of defendant’s probation to reflect the
modified domestic violence fee and the domestic violence prevention fee imposed by the
trial court. We affirm the judgment as modified.



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       We provide the following brief description of the facts and procedural history
of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) Defendant and the
victim were in an intermittent relationship for approximately eight years, and he was
the father of one of the victim’s daughters and of her unborn child. They were not in a
relationship on February 16, 2014, when the victim allowed defendant to come to her
home to visit his daughter and the victim’s other daughter. He spent the night, and on
the evening of February 17, 2014, he called the victim and wanted to return to her home.
The victim did not want him to return because they had argued the night before.
Nevertheless, she allowed him to return on the evening of February 17, 2014.
       When defendant arrived, the victim was in her bedroom. Defendant entered her
bedroom, and they began to argue. When she refused to let him move back in or to give
him a key, he “blew up” and “got upset.” He began strangling her -- placing both hands
around her neck and pressing her back onto her bed with his weight on top of her. He
maintained his stranglehold for 15 to 20 seconds, during which she felt dizzy and could
not breathe. She tried to fight him off and was eventually able to get free, but when she
tried to leave the bedroom, defendant blocked her exit. He cornered her in her room,
closed her third-floor bedroom window, and spit in her face. She tried to leave the room
again, but he closed the door and held the doorknob from the outside so she could not
leave. Defendant let her out of the room after a few minutes, and she tried to signal to
her daughter to call the police, but her daughter was scared.
       After they left the bedroom, defendant calmed down a bit, though he kept refusing
to leave and insisted he was going to stay there. When defendant was not paying
attention, the victim sent a text message to her mother to “call the police and send them to
my [the victim’s] house.” The victim’s mother called 911 and asked that officers be
dispatched. As officers approached the residence, they could hear a man and woman
inside arguing loudly. After listening for a minute, an officer knocked on the door. The



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victim reached out to open the door, but before she could fully open it, defendant pushed
it closed.
       Defendant was charged with false imprisonment with force and violence (Pen.
Code, §§ 236, 237, subd. (a) -- count one)1 and assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4) -- count two). It was also alleged
defendant had sustained a prior strike conviction within the meaning of section 667,
subdivisions (c) and (e)(1), and a prior prison term within the meaning of section 667.5,
subdivision (b). It was further alleged defendant was not eligible to serve any resulting
sentence in county jail pursuant to section 1170, subdivision (h)(3).
       A jury found defendant not guilty of false imprisonment with force and violence
and of the lesser included crime of false imprisonment. It also found defendant not
guilty of assault by means of force likely to produce great bodily injury, but found
him guilty of the lesser related crime of misdemeanor battery against a fellow parent
(§ 243, subd. (e)(1)). The trial court sentenced defendant to serve 210 days in county
jail with 192 days of credit for time served, granted defendant three years of summary
probation, ordered defendant to attend a 52-week anger management course, pay the
minimum fine of $245 (a restitution fine of $150 plus associated statutory penalty
assessments), a $400 domestic violence fee, and a $250 domestic violence prevention
program fee, and imposed and stayed a probation revocation restitution fine in the
amount of $150. Defendant was also ordered to stay away from the victim and her
daughters, except as required for the safe exchange of the children for court-ordered
parental visitation.




1      Undesignated statutory references are to the Penal Code.


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       Defendant appealed his conviction to the appellate division of the superior court.
He subsequently sought and obtained a transfer of his appeal to this court. Counsel was
appointed to represent defendant on appeal.
       Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a
supplemental brief within 30 days of the date of filing of the opening brief. More than 30
days elapsed, and we received no communication from defendant. Having undertaken an
examination of the entire record, we find no arguable error that would result in a
disposition more favorable to defendant.
       However, we note the $400 domestic violence fee imposed by the trial court is less
than the statutory minimum fee of $500. (§ 1203.097, subd. (a)(5).) The trial court may
reduce or waive this fee “[i]f, after a hearing in open court, [it] finds that the defendant
does not have the ability to pay,” but to do so, the trial court must state on the record its
reason for reducing or waiving the fee. (Ibid.) Here, the trial court indicated its intention
to impose the minimum fee, and relied on the clerk for its erroneous representation that
the statutory minimum was $400. Therefore, we modify the judgment to reflect that
defendant must pay a domestic violence fee of $500.
       Additionally, neither this domestic violence fee nor the $250 domestic violence
prevention fee (§ 1463.27) imposed by the court is reflected in the order setting forth the
terms and conditions of defendant’s probation. Therefore, we order correction of the
order setting forth the terms and conditions of defendant’s probation.
                                       DISPOSITION
       The judgment is modified to increase the domestic violence fee to $500 pursuant
to Penal Code section 1203.097, subdivision (a)(5). As modified, the judgment is
affirmed. The clerk of the trial court is directed to prepare an amended and corrected



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order setting forth the terms and conditions of probation to reflect the $250 domestic
violence prevention fee and the modified domestic violence fee and to forward a certified
copy of the amended order to the Yolo County probation department.



                                                       HOCH          , J.



We concur:



      ROBIE        , Acting P. J.



      MAURO       , J.




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