People v. Cook CA3

Filed 3/9/15 P. v. Cook CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Nevada) ----

THE PEOPLE, C075667

Plaintiff and Respondent, (Super. Ct. No. T100554F)

v.

ADAM WAYNE COOK,

Defendant and Appellant.

Following a jury trial, defendant Adam Wayne Cook was convicted of six counts of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1))1 and two counts of criminal threats (§ 422), with an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)). Defendant admitted three prior prison term allegations (§ 667.5, subd. (b)), and the trial court sentenced him to 11 years four months in state prison.

1 Undesignated statutory references are to the Penal Code.

1

Defendant appealed his conviction. Finding numerous sentencing errors, we reversed the sentence and remanded the case for resentencing. On remand, the trial court sentenced defendant to 10 years in state prison. Defendant appeals, contending the trial court in fact sentenced him to a nine-year term and then later modified the term to 10 years outside his presence, a violation of his right to be present at sentencing. We affirm. BACKGROUND The Crimes On a camping trip, defendant attacked his female companion and another couple with a hatchet. When the three tried to escape in a truck, defendant followed in his truck and repeatedly rammed the victims’ truck. Defendant threatened to kill two of the three victims during the attacks. Resentencing At the resentencing hearing, the trial court set the assault count in count I as the principal term and imposed the midterm of 36 months. On count II, criminal threats to the victim in count I, the court imposed a 24-month midterm, stayed pursuant to section 654. For count III, another assault count, the trial court stated, “it’s a separate victim, so it’s concurrent time. We go with one-third the midterm there, which is an additional 12 months consecutive to the 36-month principal term.” Defense counsel asked, “That’s 12 months consecutive, your Honor?” The trial court replied, “It is.” The trial court then went to count IV and said, “assault with a hatchet, different victim. Again, this would be a concurrent sentence because of the different victim. We select the midterm, take one-third of the midterm, that’s 12 months concurrent to the 36- month principal and the 12-month consecutive on Count [III].” For count V, criminal threats with the personal use of a deadly weapon, the trial court imposed the 24-month midterm for the crime and 12 months for the enhancement, and stayed the sentence pursuant to section 654.