People v. Rhodes CA5

Filed 5/2/14 P. v. Rhodes CA5

Opinion after recall of remittitur

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F065830 Plaintiff and Respondent, (Super. Ct. No. CRM014685) v.

DONNELL JEFFERY RHODES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Ralph J. Cook, Commissioner and Brian L. McCabe, Judge.† Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Rebecca Whitfield, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant Donnell Jeffery Rhodes pled no contest to receiving stolen property. He also admitted suffering one prior strike conviction and two prior prison terms. The

* Before Hill, P. J., Levy, J. and Cornell, J. † Commissioner Cook presided over the Romero motion on November 2, 2011. Judge McCabe presided over the sentencing on February 10, 2012.

court denied defendantʼs Romero1 motion and sentenced him to eight years in prison. On appeal, defendant contends the court (1) failed to properly exercise its discretion in ruling on his Romero motion, and (2) erred when it imposed two fees. The People concede, and we agree, that the challenged fees must be revised. However, defendant has failed to demonstrate the court erred in denying his Romero motion and therefore we affirm the sentence. FACTS2 “On December 12, 2010, at approximately 9:03 a.m. officers were dispatched to Pacifica Tanning due to an alarm. Upon arrival, the officers checked the surrounding area of the business and noticed a door to be slightly ajar. As the officers walked toward the doorway the defendant quickly walked out attempting to walk away past the officers. The defendant was contacted by the officers and when questioned as to why he was there, he stated he was an employee who was there to clean the windows. The defendant was unable to provide his window washing supplies. The defendant denied having anything illegal on him and agreed to a search. He provided officers with a Merced College and a Parole Identification Card. Officers found a gray DVD remote which was marked True Tech. The defendant stated he must have accidentally picked it up from home when he got his cell phone. The defendant kept insisting he entered the business only to see if ‘Joan’ was present. “A short time later, Rebecca Manandic showed up on scene and stated she runs the business. She stated she does not have any employees with the name of Joan. Manandic stated she does not know the defendant and he did not have permission to be in her business. She stated one of her employees must have forgotten to lock the door. Manandic noticed a yellow colored palm tree bag that was placed on the floor with trash bags, a True Tech DVD Player, and a Uniden cordless phone in it. The defendant was