P. v. Rhodes

Filed 1/19/07  P. v. Rhodes CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE COURT:*

            Chester Lee Rhodes, also known as Mallory Rhodes, appeals from the judgment entered upon a jury verdict that resulted in his conviction of injury to a telephone line (Pen. Code, § 591),[1] vandalism over $400 (§ 594, subd. (a)) and petty theft with a prior (§  666).[2]  Appellant admitted a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and four prior prison terms within the meaning of section 667.5, subdivision (b).  He was sentenced to an aggregate state prison term of 10 years, calculated as follows:  a concurrent upper-term sentence of three years, doubled as second strike, on each of the three convictions plus four years for the four 1-year prior prison term enhancements.

FACTUAL AND PROCEDURAL BACKGROUND

            On June 23, 2005, at approximately 2:53 a.m., the police responded to a 911 call that a person described as a male Black, wearing a light blue-and-black top and blue jeans was breaking into a pay phone near 114 Pine Avenue.  The officers were at the scene within one minute and 20 seconds and found appellant, matching the description of the suspect, inside the phone booth bending over.  There was no one else in the vicinity.  When appellant was ordered to his knees, coins were released from his right hand and recovered an inch away from his knee, and $33 in coins and sticks of Juicy Fruit gum were taken from his pocket.  The coins were sticky.

            In the phone booth, only the coin box on the telephone remained and wires were exposed.  The rest of the telephone was in a nearby trash can.  There was a jagged hole at the top of the coin box, with coins inside.  A wooden twig, with a sticky substance at the end which smelled like Juicy Fruit gum was found next to the phone booth.  A cement brick wrapped in plastic bags was next to the trash can.  The cost to install a new telephone, excluding labor was close to $900.

            On the day of trial, appellant's request to represent himself was granted.  After all of the evidence was presented, he requested assistance of counsel to determine how to proceed with his priors.  That request was denied.  Appellant then waived his right to a jury trial as to the priors and admitted a prior felony strike and four prior prison terms.

            After examination of the record, counsel filed an â€