People v. Cooks

California Court of Appeal · D079706 · 2023-03-30 · Published

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCS318145
Trial judge: Michael J. Popkins
Outcome: dismissed — Appeal dismissed.
Area: criminal
Panel: William S. Dato (author), O'Rourke, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:37Z · confidence high

The trial court noted a waiver of the defendant's right to be present at future restitution hearings during sentencing, but the appellate court found the claim of an invalid waiver was not ripe for review because no hearing had yet occurred. The Court of Appeal dismissed the appeal, concluding that the potential error was hypothetical and could be remedied by the trial court before any future hearing.

Ruling reviewed	Standard	The court	The model
Dismissal of appeal for lack of ripeness regarding the validity of the Section 977 waiver “Concluding the claim is not yet ripe for appellate review, we therefore dismiss the appeal.”	unclear	not reached	agree with court The court held that because no restitution hearing had been held in the defendant's absence, the alleged error in the waiver was hypothetical and not concrete, rendering the claim not ripe for appellate review.

Authorities

relied: People v. Nieves (2021) 11 Cal.5th 404 — A criminal defendant has a constitutional and statutory right to be present at critical stages, including victim restitution, which may be waived if voluntary, knowing, and intelligent.
relied: People v. Davis (2005) 36 Cal.4th 510 — Defense counsel may waive a defendant's right to be present only if there is evidence the defendant consented and understood the right and consequences.
relied: People v. Garcia (2018) 30 Cal.App.5th 316 — The ripeness requirement prevents courts from issuing advisory opinions or considering hypothetical states of facts.
relied: People v. Goodwillie (2007) 147 Cal.App.4th 695 — Errors regarding waivers of presence can often be remedied by the trial court before the actual hearing occurs.
relied: In re Annis (2005) 127 Cal.App.4th 1190 — Supports the proposition that potential errors in waiver procedures may be curable prior to the event in question.
relied: Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408 — Supports the denial of judicial notice of unpublished opinions when the appeal is dismissed.

The appellate opinion: sound — The opinion correctly applies the ripeness doctrine by distinguishing between a potential procedural defect in a waiver and an actual constitutional violation, which requires a hearing held in the defendant's absence. It appropriately cites Nieves and Davis to acknowledge the validity of the underlying right while relying on Garcia to establish that the claim is not yet concrete.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence medium

At sentencing after a guilty plea to assault with a deadly weapon, the trial court accepted defense counsel's statement of a Penal Code section 977 waiver of Cooks's presence at any future victim restitution hearing and noted it orally and in the minute order, while reserving jurisdiction over victim restitution. On appeal, Cooks argued the waiver was invalid, but the Court of Appeal held the claim unripe because no restitution hearing had yet been held in his absence, dismissed the appeal, and denied his request for judicial notice of an unpublished opinion.

Ruling reviewed	Standard	The court	The model
Trial court's acceptance and notation of defense counsel's section 977 waiver of defendant's presence at any future victim restitution hearing “Concluding the claim is not yet ripe for appellate review, we therefore dismiss the appeal.”	unclear	not reached	agree with court The court acknowledged under Davis and Nieves that the record likely does not show a knowing, voluntary waiver because nothing explained what a '977 waiver' was, but it declined to decide the issue because no hearing has occurred in Cooks's absence, prejudice cannot be assessed, and the trial court can still cure any defect before a hearing. The ripeness reasoning is consistent with Garcia and with the harmless-error framework applied in Nieves, so withholding review is defensible.

Authorities

relied: People v. Nieves (2021) 11 Cal.5th 404 — A defendant has a constitutional and statutory right to be present at critical stages including imposition of victim restitution; the right may be waived if the waiver is voluntary, knowing, and intelligent, and holding a restitution hearing without a valid waiver is reviewed for prejudice.
relied: People v. Davis (2005) 36 Cal.4th 510 — Defense counsel may waive the defendant's presence only if there is evidence the defendant consented and understood the right being waived and the consequences.
relied: People v. Garcia (2018) 30 Cal.App.5th 316 — The ripeness requirement prevents courts from issuing advisory opinions on hypothetical facts; a controversy is not ripe until the facts have sufficiently congealed to permit an intelligent and useful decision.
relied: People v. Goodwillie (2007) 147 Cal.App.4th 695 — Cited for the possibility that a trial court can remedy a claimed error before it causes actual harm.
relied: In re Annis (2005) 127 Cal.App.4th 1190 — Cited for the possibility that error can be corrected in the trial court before the hearing at issue takes place.
relied: Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408 — Supports denying a request for judicial notice of an unpublished opinion where it is not relevant to the disposition.

The appellate opinion: sound with gaps — The court correctly framed the presence-waiver law under Davis and Nieves and applied a standard ripeness analysis from Garcia, noting that prejudice from an invalid waiver cannot be assessed until a hearing actually occurs in the defendant's absence and that the trial court can still cure the defect. The opinion does not explain why dismissal of the entire appeal from a final judgment, rather than affirmance without reaching the unripe issue, is the proper disposition, and it gives no guidance on how the defendant may later challenge any restitution order, though both omissions are minor given that the waiver issue was the only claim raised.

How this analysis was made · dispute it

unusual disposition

Opinion

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?

“[Ms. Basic:] Yes, your Honor.

1 Further undesignated statutory references are to the Penal Code. 2 “[The court:] All right. [Section] 977 waiver is noted for the record for any future restitution reviews or hearings.”2 Cooks did not object to his counsel’s representation of a waiver. The sentencing minute order reserved jurisdiction to determine the amount of victim restitution. Under the heading, “Future Hearings,” it stated, “PC 977 waiver taken for any future restitution hearing.” The record does not reflect that any restitution hearing has taken place. Cooks appealed the judgment. The People moved to dismiss the appeal on ripeness grounds. In response, Cooks sought judicial notice of a recent unpublished decision from this court, claiming guidance to the lower courts is needed to illustrate how a valid section 977 waiver should be executed. (People v. Turner (Aug. 31, 2020, D075569).)

DISCUSSION

A criminal defendant has a constitutional and statutory right to be present at critical stages of a prosecution, including the imposition of victim restitution. (People v. Nieves (2021) 11 Cal.5th 404, 508 (Nieves).) This right may be waived if the waiver “ ‘is voluntary, knowing, and intelligent.’ ” (Ibid., quoting People v. Davis (2005) 36 Cal.4th 510, 531 (Davis).) Defense counsel may waive the defendant’s presence, “but only if there is evidence that defendant consented to the waiver. [Citations.] At a minimum, there must be some evidence that defendant understood the right he was waiving and the consequences of doing so.” (Davis, at p. 532.)

2 Section 977, subdivision (b)(1) requires defendants to be present at critical junctures in their cases “unless they waive their right to be physically or remotely present, with leave of court and with approval by defendant’s counsel.” 3 Cooks may have a point that the record does not demonstrate he validly waived his right to be present at a future restitution hearing. (See Davis, supra, 36 Cal.4th at p. 532; Nieves, supra, 11 Cal.5th at p. 508.) With no discussion of what a “977 waiver” was, it is hard to see how Cooks impliedly waived his right to be present at a future hearing by failing to object or contradict his counsel. Nevertheless, as the People argue, Cooks’s claim is not ripe for appellate review. “The ripeness requirement . . . ‘prevents courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute.’ ” (People v. Garcia (2018) 30 Cal.App.5th 316, 328.) A controversy is not ripe until “ ‘ “the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” ’ ” (Ibid.) Courts addressing this type of claimed error typically evaluate whether a defendant’s nonappearance following an invalid waiver resulted in prejudice. (See Nieves, supra, 11 Cal.5th at pp. 508−509 [it was harmless error to hold a victim restitution hearing outside defendant’s presence without a valid waiver].) Here, no restitution hearing has been held outside Cooks’s presence, nor is it clear that one will ever occur. Now that Cooks has raised the issue, his counsel can notify him and seek to secure his presence at any future restitution hearing that occurs. Thus, there remains the distinct possibility that any error in finding a waiver can be remedied by the trial court before the actual hearing. (See, e.g., People v. Goodwillie (2007) 147 Cal.App.4th 695, 713−714; In re Annis (2005) 127 Cal.App.4th 1190, 1199.) Until the court holds a hearing outside Cooks’s presence, any hypothetical 4 error has yet to occur. Faced with only the potential for future error, we conclude Cooks’s claim is not ripe for appellate review.3

DISPOSITION

The appeal is dismissed.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DO, J.

3 Because we dismiss the appeal, we likewise deny Cooks’s request for judicial notice of an unpublished opinion in a case raising a similar claim. (See Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 418.) 5

Cites, in this corpus

People v. Nieves S092410 · 2021-05-03
People v. GOODWILLIE D046757 · 2007-02-09
Deveny v. ENTROPIN, INC. E036597 · 2006-05-10
People v. Davis S012945 · 2005-07-21
In Re Annis B180960 · 2005-03-28