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Name: People v. Cooks (2023) 89 Cal.App.5th 1124
Case #: D079706
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/30/2023

An appeal from trial counsel’s waiver of defendant’s right to be personally present at any future restitution hearing must be dismissed as unripe where no restitution hearing has yet taken place. At defendant’s sentencing, the trial court reserved jurisdiction over victim restitution under Penal Code section 1202.4, subdivision (f), and defense counsel stated that defendant waived his right to appear at any future restitution hearing. Defendant appealed, arguing he never validly waived this right. Held: Appeal dismissed. A controversy is not ripe until “the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” Courts addressing the type of error claimed here evaluate whether a defendant’s nonappearance following an invalid waiver resulted in prejudice. Here, no restitution hearing was held outside defendant’s presence, nor is it clear that one will ever occur. Now that defendant has raised the issue, his counsel can notify him and seek to secure his presence at any future restitution hearing that occurs. Therefore, it is possible that any error in finding a waiver can be remedied by the trial court before the actual hearing. As it only pertains to future error, defendant’s claim is not ripe for appellate review. [Editor’s Note: Regarding the claim raised in the appeal, the court stated defendant “may have a point that the record does not demonstrate he validly waived his right to be present at a future restitution hearing.”]

The full opinion is available on the court’s website here: