Filed 3/17/15 P. v. Coelho 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (Calaveras)
                                                            ----




THE PEOPLE,                                                                                  C071535

                   Plaintiff and Respondent,                                      (Super. Ct. No. 11F5295)

         v.

RICHARD JOSEPH COELHO,

                   Defendant and Appellant.




         After pleading no contest to first degree burglary, defendant Richard Joseph
Coelho on appeal challenges the trial court’s (1) denial of his motion to strike a prior
conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) and (2) imposition
of a restitution fine and parole revocation fine under Penal Code sections 1202.4 and
1202.45. (Statutory references that follow are to the Penal Code.) Defendant contends
(1) the trial court abused its discretion in denying the Romero motion; and (2) improperly
applied a statutory amendment increasing the minimum fine, in violation of ex post facto



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principles. We modify the judgment to provide for a restitution fine under section
1202.4, subdivision (b), as correctly indicated in the court minutes and abstract of
judgment, rather than subdivision (e) as stated in the reporter’s transcript. As so
modified, we affirm the judgment.

                                  FACTS AND PROCEEDINGS

          Because the conviction is based on a plea, we take the facts from the probation
report.
          On November 2, 2011, defendant entered the home of his ex-girlfriend Mary
Hopper by cutting a hole in the wall. When she arrived home, defendant tackled her to
the floor and “tased” her with a taser. She did not see the taser but felt it. Defendant
handcuffed the victim to him. She tried to calm him down with small talk. They took her
dog out back to relieve itself. Defendant said he would kill Hopper if she screamed. He
could not stand it anymore and wanted to kill himself. Back inside the house, the victim
asked defendant to remove the handcuffs, and he did. The victim thought defendant was
experiencing heart problems and told him to take his “nitro” pills. He said he was afraid
she would call the police if he let her go. She said she would not call the police. She was
very frightened. She told defendant she was not feeling well and asked if she could drive
defendant to his car. He agreed but first retrieved a piece of rope with attached plastic
handcuffs and said he was going to hog-tie her so she would be present when he killed
himself. The victim said she was scared. Defendant put the handcuffs in his pocket. The
victim drove defendant to his car. He returned her cell phone. He followed her part way
but continued on the highway after she turned off at her exit. She called 911. Police later
located defendant at his storage locker, where he had a bed, water, food in a freezer, and
a shotgun.
          The prosecutor charged defendant with six felony counts: (1) first degree burglary
(§§ 459-460), (2) false imprisonment (§§ 236-237), (3) willful assault with a stun gun


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(§ 244.5), (4) witness intimidation (§ 136.1), (5) terrorist threats (§ 422), and (6) willful
infliction of corporal injury on a former cohabitant (§ 273.5, subd. (a)). The pleading
alleged a prior strike conviction for section 207 kidnapping in 1987.
       On February 10, 2012, defendant pleaded no contest to the burglary count and
admitted he was convicted of kidnapping his ex-wife in 1987. The other counts were
dismissed with defendant’s waiver under People v. Harvey (1979) 25 Cal.3d 754.
       At sentencing on May 25, 2012, the trial court denied defendant’s Romero motion
and sentenced defendant to 12 years -- the upper term of six years, doubled due to the
prior strike. The court imposed a restitution fine of $240 pursuant to section 1202.4, plus
a $240 parole revocation restitution fine under section 1202.45, the latter suspended
unless parole is revoked in the future.

                                          DISCUSSION

                                               I

                                       Romero Motion

       Defendant contends the trial court abused its discretion in denying the Romero
motion, because the court applied the wrong legal standard by conflating the Romero
motion with sentencing in this matter. However, any error in addressing the Romero
issue at the same time the court was discussing the appropriate sentence was invited, and
defendant fails to show an abuse of the trial court’s discretion in any event.
       A trial court has discretion to strike a prior serious felony conviction under
Romero only if the defendant falls outside the spirit of the three strikes law. (People v.
Williams (1998) 17 Cal.4th 148, 161 (Williams).) In deciding whether to strike or vacate
a prior serious felony “strike” conviction under Romero, the trial court “must consider
whether, in light of the nature and circumstances of his present felonies and prior serious
and/or violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part,


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and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (Williams, supra, at p. 161.)
       The trial court’s denial of a Romero motion is reviewed for abuse of discretion.
(People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) A refusal to strike a prior
conviction is an abuse of discretion only in limited circumstances, e.g., when the court
considers impermissible factors in refusing to dismiss, or if the sentencing norm under
the three strikes law leads, as a matter of law, to an arbitrary, capricious, or patently
absurd result under the circumstances of the individual case. (Carmony, supra, at
p. 378.)
       Here, defense counsel asked the trial court to allow him to argue the Romero
motion and sentencing simultaneously, stating, “I am not sure if I can break up my
original arguments on the Romero motion and sentencing, I think it’s better if I just had
them heard at once.” The trial court allowed it.
       After hearing oral argument, the trial court commented it was proper to argue both
together because they “kind of go together.” The court then explained its reasons for
denying the Romero motion and sentenced defendant under the three strikes law. The
circumstances went beyond a simple burglary, in that defendant cut a hole in the wall,
used a taser to immobilize the victim, handcuffed her, and threatened to kill her and hog-
tie her. The crime was clearly planned. Defendant had a prior prison term and numerous
prior convictions (including assault, burglary and false imprisonment in 1984, theft in
1986, and a 1987 kidnapping of his then-wife that he assertedly committed to protect his
children). His past satisfactory performance on probation was a factor in his favor but
not enough to tip the scales. The court then stated it was denying the Romero motion
because the circumstances brought this case within the spirit of the three strikes law. In
continuing with sentencing under the three strikes law, the trial court stated defendant’s
actions indicate he presents a great risk of danger to the public. The circumstances
demonstrated “the defendant’s health issues have not interfered with him executing an

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intricate and sophisticated scheme,” and defendant had a prior conviction for a similar
offense.
        Defendant acknowledges the trial court is not required to state reasons for
declining to strike a prior conviction (In re Large (2007) 41 Cal.4th 538, 550-551), but he
argues the record shows the trial court applied the wrong legal standard because the court
referred to the foregoing circumstances as “aggravating” and “mitigating” factors, which
are words used in sentencing, not in Romero motions. Defendant complains the trial
court “jumbled” Romero with selection of the sentence term. However, it was defense
counsel who asked to argue both together. Assuming error, a party who asks the trial
court to act as it did has invited the error. (People v. Williams (2008) 43 Cal.4th 584,
629.)
        Moreover, defendant fails to show any abuse of discretion in denial of the motion.
He claims the trial court believed the only mitigating factor was his satisfactory
performance on probation in the 1980’s. Defendant claims the court failed to consider
his heart condition and that he remained crime-free between the 1987 kidnapping
conviction and the current offense in 2011. However, the court did consider these points.
The court stated, “the amount of planning that went into this offense demonstrates that
the defendant’s health issues have not interfered with him executing an intricate and
sophisticated scheme.” And the court stated with regard to his prior convictions, “I do
realize that they were some time ago.” That the court made these comments immediately
after, rather than before, denying the Romero motion is without consequence.
        Defendant thinks he should benefit from the facts that the 1987 kidnapping of his
then-wife “at least was not perpetrated upon a stranger,” and he also had a relationship
with the current victim rather than preying on a stranger, and the current victim was
“uninjured” apart from the taser burns. That defendant preyed on women who loved him
does not help his cause, nor does his cavalier disregard of the terror reported by the



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current victim during the three-hour ordeal to which he subjected her, and her ongoing
fear.
        It is plain the trial court was aware of its discretion and did not rely on any
impermissible factor in reaching its decision. Nor can we say that following the
sentencing norms of the three strikes law led to a result that was arbitrary, capricious, or
patently absurd given the circumstances of this case. Defendant fell squarely within the
ambit of the three strikes law, and the trial court’s decision was well within its discretion.
        We conclude the trial court did not abuse its discretion in denying the Romero
motion.

                                               II

                                       Restitution Fine

        Defendant contends the $240 restitution fine (§ 1202.4) and the corresponding
$240 parole revocation fine (§ 1202.45) violate ex post facto principles (U.S. Const., art.
I, § 10; Cal. Const., art. I, § 9), because the court incorrectly applied the $240 minimum
fine authorized by the version of section 1202.4 in effect at the time of sentencing in
2012, instead of the $200 minimum in effect at the time he committed the crime in 2011.
Assuming the matter is not forfeited by failing to raise it in the trial court (People v.
Turrin (2009) 176 Cal.App.4th 1200, 1205; People v. Valenzuela (2009) 172 Cal.App.4th
1246, 1249), defendant fails to show error.
        Consistent with ex post facto principles, which prohibit making punishment more
burdensome after the crime is committed, the amount of a restitution fine is determined
by the statute in effect when the crime occurred. (People v. Souza (2012) 54 Cal.4th 90,
143.)
        At the time of defendant’s crime in November 2011, section 1202.4, subdivision
(b)(1), provided: “The restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense, but shall not be less than two hundred


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dollars ($200), and not more than ten thousand dollars ($10,000), if the person is
convicted of a felony . . . .” (Stats. 2011, ch. 45, § 1, eff. July 1, 2011.) The minimum
fine increased to $240 effective January 1, 2012. (Stats. 2011, ch. 358, § 1.)
       Defendant in his opening brief merely claims the trial court “evidently” intended
to impose a minimum fine. However, that is an assumption by defendant. The trial court
did not state it intended to impose the minimum fine. In February 2012, defendant signed
a plea form acknowledging the court would impose a restitution fine “between $200 and
$10,000.” Although the probation report recommended $240, and the trial court stated it
had considered the probation report, there is no indication the fine was intended to be a
statutory minimum.
       A judgment or order of the trial court is presumed correct; all intendments and
presumptions are indulged to support it on matters where the record is silent; and the
appellant must affirmatively show error. (In re Julian R. (2009) 47 Cal.4th 487, 499;
Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.)
       Defendant fails to meet his burden to show error affirmatively.
       In his reply brief, defendant continues to misperceive his burden. He says that
nothing in the record shows the trial court considered any of the statutorily relevant
factors as required by section 1202.4, subdivision (d), when the court sets a fine above
the minimum. However, as defendant acknowledges, the statute provides that “[e]xpress
findings by the court as to the factors bearing on the amount of the fine shall not be
required.” (§ 1202.4, subd. (d); Stats. 2011, ch. 45, § 1; Stats. 2011, ch. 358, § 1.)
       Defendant’s reply brief also raises new points for the first time. For example, he
claims it cannot be presumed that the trial court used the former rather than the newer
version of section 1202.4, subdivision (b), because -- although the abstract of judgment
correctly shows the fine was imposed under subdivision (b) -- the reporter’s transcript
shows the trial court said it was imposing the fine under “Section 1202.4(e).” This was
an obvious typographical error, since subdivision (e), then and now, merely states the fine

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is not subject to specified penalty assessments and shall be deposited in the State
Treasury. Defendant fails to show error in the amount of the fine. And we disregard
points improperly raised for the first time in the reply brief with no explanation as to why
they could not have been raised in the opening brief. (People v. Smithey (1999)
20 Cal.4th 936, 1017, fn. 26.)
       On this record, we presume the trial court properly exercised its discretion to
impose a fine pursuant to the version of the statute in effect at the time of defendant’s
offense. There was no ex post facto violation.
       Nevertheless, since the oral pronouncement constitutes the judgment and controls
over conflicting writings (People v. Mitchell (2001) 26 Cal.4th 181, 185-187; People v.
Scott (2012) 203 Cal.App.4th 1303, 1324), we modify the judgment to correct the
mistaken citation to subdivision (e) and to provide for a restitution fine under subdivision
(b) of section 1202.4, as correctly indicated in the minutes and abstract of judgment.

                                        DISPOSITION

       The judgment is modified to provide for a restitution fine under section 1202.4,
subdivision (b). As so modified, the judgment is affirmed.



                                                        HULL                   , Acting P. J.



We concur:



      ROBIE                 , J.



      DUARTE                , J.



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