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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

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       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.

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       For count VI, assault with a vehicle, the trial court imposed another consecutive
12-month term as the offense involved the same victim as in count I but a different
instrumentality, a car. For count VII, vehicular assault against another victim, the court
imposed a concurrent 24-month low term. The last count, count VIII, the third vehicular
assault count, the court imposed a consecutive 12-month term. Finally, the court imposed
three consecutive 12-month terms for the prior prison term enhancements, for a total state
prison term of 10 years.
       Seven days after the resentencing hearing, the clerk’s notes stated that when
preparing the minute order, “the clerk noticed that the individual time imposed on each
count did not add up to the aggregate time of 10 years imposed by the court,” and
submitted the reporter’s transcript of the resentencing hearing to the trial court for
consideration. The trial court then clarified “its intent to impose sentence on count [IV]
to be served consecutively – not concurrently, as initially ordered – to all other counts.”
Neither defendant nor defense counsel or the prosecutor was present at the clarification.
The note also stated that the minute order and abstract of judgment would be “prepared
accordingly.” Both the minute order and the abstract show a consecutive one-year term
on count IV and a total sentence of 10 years.
                                       DISCUSSION
       Defendant claims the trial court’s order clarifying that his term in count IV was
consecutive rather than concurrent violated his state and federal right to be present at
sentencing.
       The United States Constitution requires that the defendant be personally present at
those stages of trial from which his absence may diminish the fairness of the proceedings.
(Faretta v. California (1975) 422 U.S. 806, 819, fn. 15 [45 L.Ed.2d 562, 572-573].) The
California Constitution also provides a defendant in a criminal action with the right “to be
personally present with counsel . . . .” (Cal. Const., art. I, § 15.) Section 977 likewise



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guarantees a defendant’s right to be present at sentencing absent a written waiver.
(§ 977, subd. (b)(1).)
       Defendant claims the trial court imposed a concurrent term at the resentencing
hearing and then changed this sentence when it made the ex parte clarification that the
term was consecutive rather than concurrent. Since the change was not made in his
presence, defendant asks us to strike the consecutive one-year term and either correct the
sentence to the nine-year term originally imposed by the court at resentencing or remand
for another resentencing hearing.
       The problem with defendant’s contention is that the trial court imposed a
consecutive rather than a concurrent term on count IV at the resentencing hearing.
Defendant was convicted of assaulting his three victims with a hatchet in counts I, III,
and IV. After selecting count I as the principal term, the trial court imposed a sentence of
12 months, or one-third the midterm, for the assault conviction in count III because it
involved a different victim. The trial court stated, “it’s a separate victim, so it’s
concurrent time,” and that the term was “an additional 12 months consecutive to the 36-
month principal term.” When asked to clarify, it said the term for count III was
consecutive.
       As with the count III sentence, the court noted for count IV that it also involved a
different victim. The court then imposed another sentence of one-third the middle term,
or 12 months, but said the term was concurrent. The court was not asked to clarify the
sentence and continued with the rest of the sentencing.
       Defendant’s contention makes sense only if we view the trial court’s reference to a
concurrent term out of context. Looking at the entire pronouncement of sentence, the
trial court intended to impose consecutive sentences for each of the three assault with a
hatchet counts as they all involved separate victims. The trial court’s reference to a
concurrent term in count IV is no more than a simple misstatement of the consecutive
term it intended to impose. This is consistent with the sentence pronounced for the

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assault with a hatchet count conviction in count III, where the court referred to both
concurrent and consecutive sentencing and then clarified it was a consecutive term.
       Our conclusion is further supported by the fact that a concurrent one-third the
middle term sentence is unauthorized. “Because concurrent terms are not part of the
principal and subordinate term computation under section 1170.1, subdivision (a), they
are imposed at the full base term, not according to the one-third middle term formula,
even though they are served at the same time. . . . Such an unauthorized sentence is
subject to correction on review. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th
1152, 1156, fn. 3.) We presume the trial court understood and followed the law.
(People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Finding the trial court misspoke
when it said concurrent rather than consecutive term is most consistent with this
principal.
       Further support for this interpretation is found in the trial court’s statement at
resentencing that it was imposing a 10-year term. Other than count IV, the trial court
imposed a nine-year term: three years for count I, and consecutive one-year terms for
counts III, VI, and VIII, along with three years total for the three prison priors. Having
the count for the 12-month term imposed consecutively is thus consistent with the
sentence the trial court believed it was imposing.
       Generally, when “ ‘the record is in conflict it will be harmonized if possible; but
where this is not possible that part of the record will prevail, which, because of its origin
and nature or otherwise, is entitled to greater credence [citation].’ ” (People v. Smith
(1983) 33 Cal.3d 596, 599.) The trial court’s pronouncement regarding count IV is
harmonized by looking at the entire pronouncement of sentence. Doing so, we conclude
the trial court imposed a consecutive term for count IV, and the reference to a concurrent
term was a mere misstatement.
       Since defendant was sentenced to a consecutive 12-month term for count IV at the
resentencing hearing, the trial court did not modify or change the sentence when it made

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the ex parte clarification. Accordingly, we conclude that this was not a critical stage of
the proceedings, and therefore defendant had no right to be present.
                                     DISPOSITION
       The judgment is affirmed.



                                                            RAYE              , P. J.



We concur:



         HULL               , J.



         MAURO              , J.




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