People v. Cooks

Filed 3/30/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D079706

Plaintiff and Respondent,

v. (Super. Ct. No. SCS318145)

ERIC COOKS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Michael J. Popkins, Judge. Appeal dismissed. Request for judicial notice denied. Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Steve Oetting and Anthony DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.

At sentencing, counsel stated that her client, defendant Eric Cooks, waived his right to appear at any future restitution hearing. The court noted the waiver orally and in its sentencing minute order. Cooks appeals, claiming he never validly waived his right to be present at a future restitution hearing. That may be true. Nonetheless, until a restitution hearing takes place in Cooks’s absence, any error from an invalid waiver is hypothetical and not concrete. Concluding the claim is not yet ripe for appellate review, we therefore dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

After stabbing his wife’s teenage son, Cooks pleaded guilty to assault

with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)), and admitted that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). The court sentenced Cooks to a seven year stipulated prison term—a four year upper term plus three years for the great bodily injury enhancement. Cooks was ordered to pay a $300 restitution fine (§ 1202.4, subd. (b)) and a suspended parole revocation fine in the same amount (§ 1202.45), along with various mandatory fees. Thereafter, the court reserved jurisdiction over victim restitution under section 1202.4, subdivision (f), with the following exchange: “[The court:] And restitution is reserved for victim Treshaun P. in an amount to be determined. [¶] The court will reserve jurisdiction for any future restitution reviews or hearings. [¶] Will there be a [section] 977 waiver, Ms. Basic?