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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

v.

MARCELUS EARL COLEMAN,

Defendant and Appellant.

C078570

(Super. Ct. No. CRF14808)

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.