People v. Tooker CA1/1

Filed 10/30/26 P. v. Tooker CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A174699 v. CHARLES TOOKER, (Marin County Super. Ct. No. SC197709A) Defendant and Appellant. This case comes before us for the fifth time. In 2018, a jury convicted defendant Charles Tooker of attempted murder, criminal threats, and several other crimes against his ex-girlfriend, M.A. The trial court sentenced him to 16 years in prison, which included the upper term of nine years for attempted murder, the upper term of five years for the accompanying enhancement for great bodily injury (GBI), and upper terms for three other convictions that were imposed and stayed. The following year, this court affirmed the judgment. (People v. Tooker (Dec. 9, 2019, A154181) (Tooker I) [nonpub. opn.].) We subsequently issued three more opinions, which were necessary because the Legislature enacted various ameliorative laws that affected Tooker’s case. (People v. Tooker (Oct. 13, 2020, A154181) (Tooker II) [nonpub. opn.]; People v. Tooker (Jul. 11, 2022, A163332) (Tooker III) [nonpub. opn.]; People v. Tooker (Nov. 6, 2024, A163332) (Tooker IV) [nonpub. opn.].) This legislation included Senate Bill No. 567 (2021–2022 Reg. Sess.) (Senate Bill No. 567), which amended Penal Code1 section 1170 to restrict a trial court’s discretion to choose the upper term for a determinate sentence. (People v. Lynch (2024) 16 Cal.5th 730, 748 (Lynch).) Now, the upper term cannot be imposed unless there are aggravating circumstances justifying it and, with the exception of prior convictions, “the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2)–(3); see § 1170.1, subd. (d)(2) [same for enhancements with three possible terms].) In Tooker III, we rejected Tooker’s claim under Senate Bill No. 567. We determined that although four of the six aggravating factors on which the trial court relied to impose upper terms were not stipulated to or found true beyond a reasonable doubt, 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. Our state Supreme Court then granted Tooker’s petition for review and ultimately remanded the matter for us to reconsider under Lynch, which resolved a split in the Courts of Appeal concerning when a remand for resentencing under Senate Bill No. 567 is necessary. (Lynch, supra, 16 Cal.5th at pp. 743, 746.) In Tooker IV, we agreed with the parties that a remand for resentencing was required under Lynch. Our disposition reversed the sentence and directed the trial court to conduct “a full resentencing.” 1 All further statutory references are to the Penal Code unless otherwise noted. 2  On remand, the trial court agreed with the prosecution that under Lynch, the remittitur authorized a jury trial on unproven aggravating factors. Tooker then stipulated to two of them, and the others were not tried. At the resentencing hearing, the court concluded that the proven aggravating factors outweighed the mitigating factors and imposed the same sentence it originally had, including several upper terms. The court also imposed fines and assessments. Tooker now appeals, claiming that (1) the sentence must be reversed because our Tooker IV remittitur did not authorize a jury trial on the unproven aggravating factors; (2) the trial court erred by imposing the fines and assessments without holding a hearing on his ability to pay them; and (3) the abstract of judgment must be corrected to reflect the custody credits the court actually awarded. We order the abstract of judgment corrected but otherwise affirm. I. FACTUAL AND PROCEDURAL BACKGROUND A. Proceedings Leading to Tooker’s Prior Appeals The facts underlying Tooker’s convictions are detailed in Tooker II and summarized in Tooker IV. They are not relevant to the disposition of this appeal. Much of the following procedural history is drawn from our previous opinions.2 1. Tooker I and II After a jury trial, Tooker was convicted of felony counts of attempted murder, criminal threats, assault with a deadly weapon (pruning shears), assault by means likely to cause GBI (strangulation), and corporal injury on a 2 We granted Tooker’s request for judicial notice of the records in his prior appeals, nos. A154181 and A163332. 3 former dating partner, and a misdemeanor count of violation of a domestic relations court order.3 The jury 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.4 In April 2018, the trial court sentenced Tooker to 16 years in prison, composed of the upper term of nine years for attempted murder and consecutive terms of the upper term 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 upper 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 that was deemed served based on custody credits. Finally, the court imposed a $180 criminal conviction assessment under Government Code section 70373, a $240 court operations assessment under section 1465.8, subdivision (a), and a $300 restitution fine under section 1202.4, subdivision (b), and imposed and stayed an accompanying $300 parole revocation restitution fine under section 1202.45, subdivision (b). 3 The convictions were under sections 187, subdivision (a), and 664 (attempted murder), 422 (criminal threats), 245, subdivision (a)(1) (assault with deadly weapon) and (4) (assault by means likely to cause GBI), 273.5, subdivision (a) (corporal injury on dating partner), and 273.6, subdivision (a) (violation of court order). 4 The GBI allegations were found true under section 12022.7, subdivision (e)(1), and the personal-use allegation was found true under section 12022.5, subdivision (a). The jury rejected certain other allegations, as described in Tooker IV. 4  Tooker appealed, and in Tooker I, this court rejected his claims and affirmed the judgment. In August 2020, after granting Tooker’s petition for review, our state Supreme Court remanded the case to us with directions to vacate Tooker I and reconsider the matter in light of People v. Frahs (2020) 9 Cal.5th 618. Frahs held that section 1001.36, a statute making certain defendants eligible for mental health diversion that went into effect after Tooker was sentenced, applied retroactively to defendants like him whose judgments were not yet final. (Frahs, at pp. 624–625, 640–641.) In Tooker II, we vacated Tooker I, conditionally reversed the judgment, and remanded for the trial court to consider whether Tooker was eligible for mental health diversion under section 1001.36. We again rejected the remaining claims he raised in Tooker I, which were not affected by People v. Frahs, supra, 9 Cal.5th 618, with one exception. Whereas Tooker I concluded that Tooker was not entitled to a hearing on his ability to pay the imposed fines and assessments under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), in Tooker II we indicated that if the trial court denied diversion, Tooker could “challenge the imposed fines and fees on the basis that he lacks the ability to pay them.” 2. Tooker III and IV On remand, the trial court denied Tooker’s request for mental health diversion. There is no indication in the record before us that Tooker thereafter objected to the fines and assessments at issue, as Tooker II explicitly authorized. 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 Senate Bill 5 No. 567 and another new law, 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 Tooker III, we affirmed the order denying mental health 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. In October 2024, after granting Tooker’s petition for review, our state Supreme Court remanded the case to us with directions to vacate Tooker III and reconsider the matter in light of Lynch. Lynch held that a remand for resentencing under Senate Bill No. 567 is necessary when the trial court relied on aggravating factors 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.” (Lynch, supra, 16 Cal.5th at p. 743.) In Tooker IV, we vacated Tooker III, reversed the sentence, and remanded for the trial court to reconsider which terms to impose under the current version of section 1170. We again rejected Tooker’s claim that the court erred by denying mental health diversion, because Lynch did not affect that claim. But since “a full resentencing [was] required” due to the reversal under Lynch, we directed that Tooker could also pursue his claim under Assembly Bill No. 518 on remand. B. Proceedings Leading to this Appeal After we remanded for resentencing, a disagreement arose about whether our Tooker IV remittitur allowed for a jury trial on additional aggravating factors. After a hearing, the trial court ruled that the People were entitled to a jury trial on the four unproven aggravating factors the 6 court had previously relied on to impose upper terms. The court interpreted Lynch to hold that “this type of a remand for a full resentencing includes the right for the People to try to a jury the aggravating factors, which the jury never had an opportunity to hear.” After this ruling, Tooker admitted two of the unproven aggravating factors, that the victim was particularly vulnerable and the crime involved planning.5 In exchange, the prosecution agreed not to attempt to prove other aggravating factors. The parties also agreed that the trial court could rely on the two aggravating factors that Tooker IV held were necessarily established by the jury’s verdict and that Tooker could present evidence of mitigating factors. The resentencing hearing was held on October 21, 2025. M.A., her current partner, and Tooker made statements, and Tooker presented other evidence in support of various mitigating factors. The trial court found that Tooker established three mitigating factors: the firearm he used was inoperable, he had a mental or physical disorder reducing his culpability for the crimes, and he made postconviction efforts to rehabilitate himself.6 But the court also determined that the aggravating factors it could properly consider as to each count “heavily outweigh[ed] the mitigating factors,” justifying the upper terms. The court therefore imposed the same sentence again, including the upper terms for attempted murder, the accompanying GBI enhancement, and the three stayed counts. 5 The aggravating factors were admitted under California Rules of Court, rule 4.421(a)(3) (vulnerable victim) and (8) (planning). All further rule references are to the California Rules of Court. 6 The trial court found these mitigating factors under rule 4.423(a)(10) (inoperable firearm), (b)(2) (mental or physical condition), and (c) (rehabilitative efforts). 7  As it had during the original sentencing, the trial court also imposed a $180 court facilities assessment, a $240 court operations assessment, and a $300 restitution fine, and imposed and stayed a $300 parole revocation restitution fine. The amended probation report filed before the resentencing hearing recommended these monetary charges, and Tooker did not object to them. II. DISCUSSION A. The Trial Court Correctly Interpreted the Tooker IV Remittitur. Tooker claims that our Tooker IV remittitur did not authorize a jury trial on the then-unproven aggravating factors, requiring another remand for a resentencing hearing at which such factors are not considered. He is incorrect. “The terms of the remittitur define the trial court’s jurisdiction.” (People v. Dutra (2006) 145 Cal.App.4th 1359, 1367 (Dutra); Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701.) Thus, when “ ‘a reviewing court reverses a judgment with directions[,] . . . the trial court is bound by the directions given and has no authority to retry any other issue or to make any other findings. Its authority is limited wholly and solely to following the directions of the reviewing court.’ ” (Dutra, at p. 1367, quoting Rice v. Schmid (1944) 25 Cal.2d 259, 263.) “Any material variance from the [reviewing court’s] directions is unauthorized and void.” (Butler v. Superior Court (2002) 104 Cal.App.4th 979, 982.) That said, “[t]he appellate court need not expressly comment on every matter intended to be covered by the disposition. . . . ‘It is unnecessary and inappropriate for an appellate court to attempt to envision and to set forth in detail the entire universe of matters prohibited by its directions on remand.’ ” 8 (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 313.) Thus, “[t]he interpretation of a remittitur requires that the [reviewing] court’s opinion be consulted, especially in case of ambiguity [citations], and that meaning given to it which harmonizes with the court’s ruling.” (Combs v. Haddock (1962) 209 Cal.App.2d 627, 631; Dutra, supra, 145 Cal.App.4th at p. 1368.) We review de novo whether the trial court correctly interpreted our dispositional language. (Ducoing, at p. 313; Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859.) The relevant part of the Tooker IV disposition states, “The sentence is reversed, and the matter is remanded to the trial court for a full resentencing.” Tooker claims that we thereby “did not direct that a trial be held on aggravating factors or grant the trial court anything but the authority to conduct a resentencing.” He contrasts our dispositional language to that in Lynch, which directed the Court of Appeal to “return the matter to the trial court for further litigation of the aggravating circumstances and for the court to exercise its discretion under current section 1170[, subdivision (b),] as indicated here.” (Lynch, supra, 16 Cal.5th at p. 778.)7 To begin with, we disagree that a remand for “a full resentencing” necessarily does not include a jury trial on aggravating factors. The primary case on which Tooker relies, People v. Dorado (2024) 105 Cal.App.5th 717, is inapposite. There, the Court of Appeal originally remanded for resentencing under amended section 1170, and the People elected not to pursue a jury trial on unproven aggravated factors. (Id. at pp. 738–739.) In the appeal from the 7 Tooker relies on a quotation from earlier in the Lynch opinion—which he incorrectly identifies as being from the remittitur—in which the Supreme Court explicitly stated that the defendant would have “the opportunity for the jury trial, of which he was deprived.” (Lynch, supra, 16 Cal.5th at p. 777.) 9 resentencing, the Court of Appeal reversed based on the dual use of a single fact to impose upper terms under section 1170 as well as consecutive sentences under section 667.6. (Dorado, at pp. 723–724.) The appellate court remanded for “a full resentencing hearing” but directed that the People were not entitled to a jury trial on the aggravating factors, explaining that they already “made their election not to seek [such] a trial” and “remanding for a new resentencing hearing on the record as it stands” would “restor[e] . . . the status quo ante.” (Id. at pp. 739–740.) Here, in contrast, when we decided Tooker IV there had not yet been an opportunity for a jury trial on aggravating factors. Thus, the trial court’s determination that our remittitur allowed for such a trial did not upset the status quo ante. And although Dorado observed that confining the second resentencing to the record as it stood was “entirely consistent with the full resentencing rule” (People v. Dorado, supra, 105 Cal.App.5th at p. 740), that is hardly equivalent to saying that a “full resentencing” cannot include a jury trial on aggravating factors. Tooker does not cite any authority to support such a proposition.8 We also reject Tooker’s suggestion that the lack of language in the Tooker IV remittitur addressing a jury trial on aggravating factors prevented the trial court from holding one on remand. (See Ducoing Management, Inc. v. Superior Court, supra, 234 Cal.App.4th at p. 313.) To the extent our disposition was ambiguous, the Tooker IV opinion as a whole makes clear we remanded the case for resentencing pursuant to Lynch, which explicitly 8 We observe that Lynch discussed the proceedings to be conducted on remand, including a possible jury trial, under the heading “Lynch Is Entitled to a Remand for Resentencing.” (Lynch, supra, 16 Cal.5th at pp. 774, 777, italics omitted.) In other words, the Supreme Court contemplated that a trial on aggravating factors would be part of the defendant’s “resentencing.” 10 permitted such a trial. Tooker points to nothing in Tooker IV that suggests we meant to preclude a trial on remand. In short, the trial court did not err by determining that the People had a right to a jury trial on the unproven aggravating factors, because the Tooker IV remittitur did not prohibit such a trial by its terms or by omission. As a result of this conclusion, we necessarily reject Tooker’s cursory claim that the court’s alleged exceeding of its jurisdiction on remand also violated his federal due process rights. B. Tooker Forfeited His Challenge to the Fines and Assessments. Tooker also claims the trial court erred by imposing the two restitution fines and two assessments without holding a hearing on his ability to pay them, requiring remand. We decline to accept the Attorney General’s concession that a remand is warranted as to the assessments and conclude this claim is forfeited. Tooker’s current claim concerns the same fines and assessments he challenged under Dueñas in his original appeal. That case, which was decided in 2019, held that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant’s present ability to pay before it imposes” the court operations and conviction assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) It also held that “the execution of any restitution fine imposed under [section 1202.4] must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.) Tooker II, which was filed in 2020, explicitly authorized Tooker to raise his ability-to-pay claim on remand. He did not do so. Based on this circumstance alone, which his briefing fails to address, we do not see why we should remand the case again merely to permit him to raise the claim now. 11  Even if we had not already given Tooker the opportunity to seek an ability-to-pay hearing in the trial court, we would conclude that he forfeited his claim by failing to object during the most recent proceedings below. Generally, “a defendant who fails to object to the imposition of fines and fees at sentencing forfeits the right to challenge those fines and fees on appeal.” (People v. Ramirez (2023) 98 Cal.App.5th 175, 224.) Tooker relies on the exception that exists when “ ‘ “an objection would have been futile or wholly unsupported by substantive law then in existence.” ’ ” (People v. Perez (2020) 9 Cal.5th 1, 7–8.) Specifically, he argues that because our state Supreme Court did not decide People v. Kopp (2025) 19 Cal.5th 1 until two months after the resentencing hearing, his trial counsel could have reasonably determined that it was futile to object to the assessments and fines. This argument is meritless. Kopp clarified that criminal fines “should initially be reviewed under the excessive fines provisions of the United States and California Constitutions,” whereas the assessments at issue “raise[] separate equal protection issues” involving a defendant’s ability to pay. (People v. Kopp, supra, 19 Cal.5th at p. 9.) Although the Supreme Court thereby “resolve[d] a divergence among the Courts of Appeal” about the proper analysis of challenges to “court-ordered financial obligations imposed on criminal defendants” (ibid.), there was already ample authority for objecting to the fines and assessments, whether as excessive or exceeding the ability to pay. (E.g., People v. Aviles (2019) 39 Cal.App.5th 1055, 1059–1060; Dueñas, supra, 30 Cal.App.5th at p. 1164.) Since Kopp did not recognize a new or expanded basis for challenging criminal monetary charges, objecting to them before Kopp would not have been futile. Tooker’s claim is forfeited for this reason as well. 12  C. The Abstract of Judgment Requires Correction. Finally, we agree with the parties that the abstract of judgment must be corrected to reflect the number of custody credits the trial court actually awarded during resentencing. (See People v. Mitchell (2001) 26 Cal.4th 181, 185–187.) The trial court determined that as of April 5, 2018, the date of his original sentencing, Tooker had 477 days of actual credits and 71 days of conduct credits, for a total of 548 days of credits. The court also determined that from April 6, 2018, to October 21, 2025, the date of his resentencing, Tooker had 2,756 days of actual credits, on which the Department of Corrections and Rehabilitation was responsible for calculating conduct credits. Although the abstract of judgment reflects the correct number of total credits awarded in Item 13, “Other orders,” it does not do so under Item 16, “CREDIT FOR TIME SERVED.” Rather, the latter section shows only the credits awarded at the original sentencing. We agree with Tooker that “there is very real potential” for the Department of Corrections and Rehabilitation to miss the additional credits awarded at resentencing and apply only the credits identified in the credits-specific Item 16. Therefore, we order Item 16 to be corrected to reflect that Tooker has 3,233 days (477 + 2,756) of actual credits, 71 days of local conduct credits, and 3,304 (3,233 + 71) days of total credits. III. DISPOSITION The judgment is affirmed. The trial court is directed to amend Item 16 of the abstract of judgment as set forth above and send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. 13  _________________________ Humes, P. J. WE CONCUR: _________________________ Langhorne Wilson, J. _________________________ Smiley, J. People v. Tooker A174699 14