People v. Hayes CA2/1

Filed 7/24/14 P. v. Hayes CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B251437

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA058660) v.

MARCUS DESHON HAYES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge. Appeal dismissed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Margaret E. Maxwell, Supervising Deputy Attorney General, for Plaintiff and Respondent. _________________________________

Defendant Marcus Deshon Hayes appeals from the judgment entered following his negotiated no contest plea to a second degree burglary charge and admission of one “strike” prior. Defendant contends the trial court abused its discretion by selecting the amount of $1,680 for the Penal Code section 1202.4, subdivision (b) restitution fine.1 We dismiss the appeal for lack of jurisdiction. Defendant’s notice of appeal was filed more than one month late and thus was ineffective. BACKGROUND Defendant was charged with the second degree burglary of a medical marijuana dispensary. The information alleged he had two prior serious felony convictions within the scope of the “Three Strikes” law and section 667, subdivision (a)(1), and had served six prior prison terms within the scope of section 667.5, subdivision (b). On May 29, 2013, the eve of trial, defendant accepted the prosecutor’s plea offer. Defendant was advised of and waived his rights, and in accordance with the plea agreement, he pleaded no contest to second degree burglary and admitted one strike allegation. In accordance with the plea agreement, the trial court sentenced defendant to six years in prison. The court ordered him to pay, inter alia, a $1,680 section 1202.4, subdivision (b) restitution fine. It scheduled a hearing on victim restitution for June 7, 2013. That hearing was later continued to July 26, 2013, but the victim did not appear and the court took the hearing off calendar. On September 9, 2013, defendant filed a notice of appeal indicating it was from the judgment of the superior court “entered May 28th 2013.” The clerk of the superior court accepted this notice and filed it. Defendant included with his notice of appeal a request for a certificate of probable cause, citing alleged ineffective assistance of counsel in failing or refusing to file a motion to withdraw defendant’s no contest plea. Defendant