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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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




       1   Undesignated statutory references are to the Penal Code.


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dated his request August 5, 2013. The trial court denied the certificate on September 11,
2013.
                                       DISCUSSION
        Defendant’s appeal challenges the amount of the statutory restitution fine as an
abuse of discretion. The Attorney General argues the appeal is untimely, but nonetheless
requests relief in the form of additional mandatory penalty assessments and correction of
the abstract of judgment. We agree with the Attorney General the notice of appeal was
untimely, and because this means we have no appellate jurisdiction, we must dismiss the
appeal without awarding either party relief.
a.      The importance of a timely notice of appeal
        To appeal a judgment, a defendant must file a notice of appeal in the trial court
“within 60 days after the rendition of the judgment or the making of the order being
appealed.” (Cal. Rules of Court, rule 8.308(a).) “In a criminal case, judgment is
rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4
Cal.4th 335, 344, fn. 9.)
        “A timely notice of appeal, as a general matter, is ‘essential to appellate
jurisdiction.’ [Citation.] It largely divests the superior court of jurisdiction and vests it in
the Court of Appeal. [Citation.] An untimely notice of appeal is ‘wholly ineffectual:
The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate
court has no power to give relief, but must dismiss the appeal on motion or on its own
motion.’ [Citation.] The purpose of the requirement of a timely notice of appeal is, self-
evidently, to further the finality of judgments by causing the defendant to take an appeal
expeditiously or not at all.” (People v. Mendez (1999) 19 Cal.4th 1084, 1094.)
        A limited exception applies where an incarcerated appellant either delivered his
notice of appeal to custodial officials for mailing within the filing period or made
arrangements with his attorney for filing a timely appeal and was diligent in seeking to
ensure his attorney carried out that responsibility. (People v. Lyons (2009) 178




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Cal.App.4th 1355, 1361–1362.) The would-be appellant must make a sufficient
evidentiary showing to establish the applicability of the exception. (Id. at p. 1362.)
b.     Defendant’s notice of appeal was untimely and ineffective
       Judgment in this case was rendered on May 29, 2013, when defendant was
sentenced. Defendant was required to file his notice of appeal by July 29, 2013.2 It was
not filed until September 9, 2013, and defendant made no evidentiary showing bringing
him within the exception for prison mailing or attorney error. The notice would be
untimely even if we were to credit the date of August 5, 2013, that defendant wrote on
his request for a certificate of probable cause. The notice of appeal was therefore
ineffective.
       Defendant argues the time should be calculated from the date of the restitution
hearing, not the date of sentencing. He cites several cases in which criminal defendants
or minors challenged restitution orders entered at hearings conducted after sentencing or
juvenile disposition hearings. Restitution orders are separately appealable. (People v.
Denham (2014) 222 Cal.App.4th 1210, 1213–1214.) Accordingly, the entry of a
restitution order commences the 60-day period to appeal that order. (Ibid.) However,
this appeal does not challenge a restitution order. It challenges the mandatory statutory
restitution fine imposed at sentencing on May 29, 2013. The cases cited by defendant are
inapposite, and he has cited no authority supporting an extension of time to appeal from
an aspect of sentencing included in the rendition of judgment.
       Accordingly, we conclude defendant’s notice of appeal was untimely filed and
therefore ineffective to vest this court with jurisdiction. The appeal must be dismissed.
Because we lack appellate jurisdiction, and thus the power to grant any relief, we also
cannot address the Attorney General’s claim of sentencing error.




       2   The sixtieth day, July 28, 2013, was a Sunday.


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                                    DISPOSITION
      The appeal is dismissed.
      NOT TO BE PUBLISHED.


                                                MILLER, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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