People v. Hayes CA1/5

Filed 1/8/15 P. v. Hayes CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A141654

v. (San Francisco County Super. Ct. No. 21480903) ARDIS HAYES,

Defendant and Appellant. ____________________________________/

Appellant Ardis Hayes pled guilty to attempted first degree murder (Pen. Code, §§ 664/187, subd. (a))1 and carrying a dirk or dagger (former § 12020, subd. (a)(4)) and the trial court sentenced him to state prison. Hayes appeals. He contends: (1) at the sentencing hearing, the court should have “orally dismiss[ed] counts and allegations” the parties agreed to dismiss pursuant to the negotiated disposition; and (2) the abstract of judgment must be amended to reflect the custody credits awarded at the sentencing hearing. We direct the court to amend the abstract of judgment to correctly reflect the 1,521 days of custody credits the court awarded at the sentencing hearing. In all other respects, we affirm.

1 All further statutory references are to the Penal Code. 1

FACTUAL AND PROCEDURAL BACKGROUND Our summary of facts comes primarily from the probation report. In July 2010, police officers received a report that several men were beating up a man on Market Street in San Francisco. When the police officers arrived, they found the “victim on the ground unconscious. A large amount of blood was draining from his nose and there was a pool of blood” near him. “The victim suffered from facial and skull fractures, bruised lungs, broken ribs, . . . and multiple lacerations to his face.” Police reviewed video footage of the incident, identified the suspects, and arrested Hayes. “He appeared to be wearing the same clothing as seen on the video footage. . . . He possessed a metal cleaver with a 6 inch blade and 0.01 gram of cocaine base.” The People charged Hayes with attempted willful, deliberate, and premeditated murder (§§ 664/187, subd. (a) (Count I)), assault with force likely to cause great bodily injury (§ 245, subd. (a)(1) (Count II)), second degree robbery (§ 211 (Count III)), aggravated mayhem (§ 205 (Count IV)), torture (§ 206 (Count V)), and carrying a dirk or dagger (former § 12020, subd. (a)(4) Count VII)). The information alleged Hayes personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a) (Counts I through III)). On July 3, 2013, Hayes pled guilty to attempted first degree murder (§§ 664/187, subd. (a) Count I)) and carrying a dirk or dagger (former § 12020, subd. (a)(4) (Count VII). The court found Hayes’s waiver of rights was knowing and intelligent, the plea was free and voluntary, and there was a factual basis for the plea. At the hearing, the court did not orally dismiss Counts II through V and the corresponding sentencing enhancement, but it noted that if the court withdrew approval of the plea agreement, Hayes would “be allowed to take back [his] guilty plea and enter pleas of not guilty. . . . But if [he] did that, any dismissed charges or allegations would be reinstated.” The minute order issued following the plea hearing states the court dismissed Counts II through V and the corresponding sentencing enhancement.