People v. Tooker

1

THE PEOPLE, Plaintiff and Respondent, v. CHARLES TOOKER, Defendant and Appellant.

A163332

California Court of Appeals, First District, First Division

November 6, 2024

NOT TO BE PUBLISHED

(Marin County Super. Ct. No. SC197709A)

Humes P.J.

This is our fourth opinion involving defendant Charles Tooker, whose case has been affected by a series of ameliorative criminal laws that took effect after his sentencing. In 2018, a jury convicted him of attempted murder, criminal threats, and other crimes after he brutally attacked and stabbed his ex-girlfriend, M.A. The trial court sentenced him to 16 years in prison, and the following year, this court affirmed the judgment. (People v. Tooker (Dec. 9, 2019, A154181) [nonpub. opn.].)

In doing so, we concluded that no remand was necessary for the trial court to consider whether Tooker was eligible for mental health diversion under newly enacted Penal Code section 1001.36.^[1] After granting his petition for review on this issue, the California Supreme Court remanded the case for reconsideration in light of People v. Frahs (2020) 9 Cal.5th 618, which held that section 1001.36 applies retroactively to all defendants whose judgments were not yet final at the time the statute took effect.

We then issued a new opinion in which we conditionally reversed the judgment and remanded for the trial court to consider whether Tooker was eligible for relief under section 1001.36. (People v. Tooker (Oct. 13, 2020, A154181) [nonpub opn.].)^[2] On remand, the trial court denied relief on the basis that Tooker posed an unreasonable risk of danger to public safety if treated in the community under former section 1001.36, subdivision (b)(1)(F) (section 1001.36(b)(1)(F)).^[3] Under that provision, the unreasonable risk is that the defendant will commit one of a list of violent felonies known as "super strikes." (§§ 1001.36(b)(1)(F), 1170.18, subd. (c); see People v. Jefferson (2016) 1 Cal.App.5th 235, 242; § 667, subd. (e)(2)(C)(iv).)

Tooker appealed from the order denying diversion, claiming the trial court abused its discretion by concluding he posed an unreasonable risk of danger and denying him a continuance to obtain further evidence. He also claimed he was entitled to a new sentencing hearing under two other new laws: Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which amended section 1170 to alter a trial court's discretion to choose the lower, middle, or upper term, and Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill No. 518), which gives a trial court discretion to choose which term to impose for an act punishable in different ways under section 654.

In 2022, we affirmed the order denying diversion, holding that the trial court did not err by denying diversion to Tooker and a remand for resentencing under Senate Bill No. 567 and Assembly Bill No. 518 was unnecessary. (People v Tooker (Jul. 11, 2022, A163332) [nonpub. opn.].) As to the claim under Senate Bill No. 567, we determined that four of the six aggravating factors on which the court relied to impose upper terms for Tooker's felony convictions were not stipulated to or found true beyond a reasonable doubt, as section 1170 now requires. (§ 1170, subd. (b)(2).) Nonetheless, we concluded that no remand for resentencing was required because the record showed the court would have exercised its discretion to impose the upper terms even if it knew it could rely on only the other two aggravating factors.

In September 2022, the California Supreme Court granted Tooker's subsequent petition for review and deferred further action pending its decision in People v Lynch, S274942. The Court filed Lynch in August 2024, holding that a remand for resentencing under Senate Bill No. 567 is necessary when the trial court relied on aggravating facts that were not proven as required "unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the [trial] court relied to conclude the upper term was justified." (People v. Lynch (2024) 16 Cal.5th 730, 743 (Lynch).)

On October 2, 2024, the Supreme Court remanded Tooker's case to us with directions to vacate our July 2022 decision and reconsider the matter in light of Lynch. In supplemental briefing, the parties agree that a remand for resentencing is required under Lynch because-as we already determined in our July 2022 decision-we cannot conclude beyond a reasonable doubt that a jury would have found true beyond a reasonable doubt all of the aggravating factors on which the trial court relied to impose the upper terms in this case.

Accordingly, we vacate our decision of July 11, 2022, reverse the sentence, and remand for the trial court to reconsider which terms to impose under the current version of section 1170. Because a full resentencing is required, Tooker may also pursue his claim under Assembly Bill No. 518 below. The Supreme Court's order does not affect our holding that the trial court did not err by denying him mental health diversion, however, and we reach the same conclusion as to that claim.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. The Proceedings Leading to Tooker's First Appeal

The facts underlying Tooker's convictions are recited in our October 2020 opinion. To summarize, Tooker committed several acts of domestic violence against M.A. while they were dating. After the relationship ended in 2013, Tooker began stalking her, and she obtained a restraining order against him. Around the same time the relationship ended, Tooker sustained a traumatic brain injury.

In June 2016, Tooker went to M.A.'s house with a gun, in violation of the restraining order. He entered her backyard, where she was gardening, displayed the gun, and told her he was going to kill her. M.A., who was holding pruning shears, attempted to escape over the yard's back gate. Tooker pulled her down, slammed her head into the ground, and, after a struggle, stabbed her with the pruning shears eight times in the back of her neck and head. He then began strangling her with his hands.

Bystanders heard M.A. screaming for help, and two men entered her yard and were able to subdue Tooker. Tooker's gun was located by the fence.

M.A. was hospitalized for her injuries, which included stab wounds, bruising, and a head cut that required stitches. Tooker was arrested and taken to jail. Evidence was presented that he later arranged to pay another inmate to threaten and possibly kill M.A. to prevent her from testifying at trial.

Tooker, who testified in his own defense, said he experienced serious problems after his brain injury and became homeless. He stopped at M.A.'s house for "closure," supposedly on his way to ride his bicycle to Oregon, and he claimed that he could not remember most of what happened during the attack. He also denied conspiring with the other inmate to prevent M.A. from testifying.

A psychiatrist testified for the defense that medical records showed Tooker "suffered a skull fracture and a large subdural hematoma, traumatic brain injury" after being assaulted in 2013. The records also showed that even after undergoing surgery and rehabilitation therapy, Tooker experienced ongoing issues typical of those with a traumatic brain injury, including personality changes, memory deficits, and problems with impulse control and judgment.

The jury convicted Tooker of felony counts of attempted murder, criminal threats, assault with a deadly weapon (pruning shears), assault by means likely to cause great bodily injury (GBI) (strangulation), and corporal injury on a former dating partner, and a misdemeanor count of violation of a domestic relations court order.^[4] It also found true, as to the convictions for attempted murder, strangulation-based assault, and corporal injury, the allegation that Tooker personally inflicted GBI under circumstances involving domestic violence, and, as to the criminal-threats offense, the allegation that he personally used a firearm.^[5] The jury was unable to find true the allegations that Tooker personally used a firearm during the attempted murder and the corporal-injury offense or that he personally inflicted GBI under circumstances involving domestic violence during the assault with the pruning shears. Finally, it found not true the allegation that the attempted murder was deliberate and premeditated.^[6]

In April 2018, the trial court sentenced Tooker to 16 years in prison, composed of the aggravated term of nine years for attempted murder and consecutive terms of five years for the GBI enhancement to attempted murder, eight months for criminal threats, and 16 months for the firearm enhancement to criminal threats. Four-year aggravated terms for both assault convictions and the corporal-injury conviction were imposed and stayed. Tooker was also sentenced to a consecutive term of one year in county jail for the misdemeanor.

B. The Proceedings Leading to This Appeal

After we conditionally reversed the judgment and remanded the matter in 2020, the trial court appointed counsel to represent Tooker for proceedings under section 1001.36. Tooker then filed a request for a hearing, arguing he had made a prima facie showing of eligibility for diversion. As relevant here, he claimed he did not pose an unreasonable risk of danger to public safety because he had never been charged with or convicted of a super strike. The prosecution opposed the request, arguing "[t]here [was] every indication based on [Tooker's] prior criminal history, conduct that resulted in the attempted murder conviction in this case, and . . . attempts to arrange for [M.A.'s] murder from custody . . . that [he] would commit at least one . . . 'super strike.'" The prosecution also...