People v. Rhoades CA3

Filed 8/29/14 P. v. Rhoades CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C076026

Plaintiff and Respondent, (Super. Ct. No. CM039548)

v.

COLE JAMES RHOADES,

Defendant and Appellant.

On September 5, 2013, a police officer responded to a reported disturbance at a Chico apartment building. The officer saw defendant Cole James Rhoades on the apartment’s second story landing. Defendant went down to the officer; he was sweating profusely, breathing hard, and had abrasions, scratches, and small amounts of blood on him. He admitted having been in an altercation, but did not want the matter investigated any further. During a pat search of defendant, an officer discovered a knife with a two and three-quarter inch blade in his back pocket. After the officer learned defendant was

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on a parole hold, defendant was handcuffed and transported to the Chico Police Department. Upon arriving at the police station, defendant admitted to having a small baggie of methamphetamine in his shirt pocket. The officer retrieved the baggie, which contained 0.31 grams of methamphetamine. Defendant pleaded no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and admitted two prior prison term allegations (Pen. Code, § 667.5, subd. (b));1 as part of the plea agreement, three prior prison term and a prior strike (§§ 667, subd. (d), 1170.12, subd. (b)) allegations were dismissed. The trial court suspended imposition of sentence and placed defendant on three years’ formal probation. Defendant subsequently admitted violating his probation after testing positive for methamphetamine. The trial court terminated probation and sentenced defendant to the maximum term of five years in state prison, imposed various fines and fees, and awarded 205 days of presentence credits (103 actual and 102 conduct). Defendant appeals. His request for a certificate of probable cause was denied. We appointed counsel 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. (People v. Wende (1979) 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. Defendant filed a supplemental brief raising three contentions. He first contends the upper term sentence was erroneous because the trial court relied on improper aggravating factors and the mitigating factors warranted a lesser term. Sentencing defendant, the trial court said the following: “In aggravation, the defendant was armed with the weapon at the time of the offense. [¶] In addition to that,