P. v. Tooker

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Filed 12/9/19 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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,
v.
CHARLES TOOKER,
Defendant and Appellant.
A154181
(Marin County
Super. Ct. No. SC197709A)
A jury convicted defendant Charles Tooker of attempted murder, criminal threats,
and other crimes after he attacked his ex-girlfriend, M.A., and stabbed her with pruning
shears. The trial court sentenced him to 16 years in prison. On appeal, Tooker raises a
litany of claims, including that the court erred in (1) finding he was competent to stand
trial; (2) admitting evidence of his prior domestic violence under Evidence Code
section 1109, and giving a related jury instruction about that evidence; (3) failing to give
a jury instruction on the defense of unconsciousness; and (4) giving a jury instruction on
attempted voluntary manslaughter. He also claims that Penal Code section 422, the
criminal-threats statute, is unconstitutionally vague; that the court erred by imposing
certain charges without a determination of his ability to pay them, in contravention of
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas); and that a conditional remand is
necessary for a consideration of his eligibility for mental health diversion under Penal

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Code section 1001.36, which went into effect after he was sentenced.1 We reject these
claims and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Tooker’s Relationship with M.A.
Tooker and M.A. began dating at the end of 2009, when they both lived in Ohio.
M.A. testified that she and Tooker “weren’t compatible” and “it had always been a
violent relationship on both sides.” Tooker, who testified in his own defense, agreed that
the relationship was volatile and they were “psychologically assaultive towards each
other,” but he claimed that M.A. was always “the physical aggressor.”
M.A. testified that Tooker hit her for the first time in November 2011, after they
went to a football game in Cincinnati. They had been “drinking heavily,” and M.A.
could not find her cell phone. She became upset because the phone had her niece’s baby
pictures on it, and Tooker told her “to get over it.” When she and Tooker returned to
their hotel room, he pinned her down, she “kicked him in the crotch to get him off [her],”
and he punched her in the nose, breaking it. But according to Tooker, M.A.’s kicking of
him was unprovoked, and she hurt her nose after she threatened to jump out the window
and slipped on the windowsill.
About a year later, in November 2012, M.A. and Tooker moved to California.
At the end of that month, they began living in a San Rafael apartment rented by M.A.,
who was working as a pharmacist. The two had been fighting before they arrived in San
Rafael, but M.A. thought they had “kind of settled it.” But soon after, while she was at
work in Placerville, she received a call from the Marin Humane Society saying that her
dog was there. She was unable to reach Tooker by phone, so she went back to San Rafael
and picked up the dog, who was microchipped but had been “let loose without a collar.”
M.A. testified that when she returned to her apartment, the windows were smashed out,
the walls were damaged, and “it was totally trashed.” Tooker admitted to her that he had
1 All further statutory references are to the Penal Code unless otherwise noted.

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caused the damage, which totaled approximately $30,000, and apologized for his issues
with anger and alcohol.2 Soon afterward, he moved back to Ohio, but he and M.A.
remained in a long-distance relationship.
In August 2013, Tooker moved back to California, and he stayed with M.A. while
he looked for an apartment. A few weeks after arriving, he hit M.A. again, precipitating
the end of their relationship. The two had driven to Berkeley to shop, and M.A. had to
take a work call and was gone for about 10 minutes. When she came back, Tooker, who
had been drinking throughout the morning, was “agitated.” He got into the car, hit M.A.,
and directed her to drive home. She testified, “So I started to drive home, and then he
started smacking my head against the driver side door window as I was driving over the
Richmond Bridge[,] saying he’s going to kill me, he’s going to kill my mother, and then
repeatedly smacking my head against the window.” Tooker also threw her personal and
business cell phones out the window while they were still on the freeway. M.A.
sustained two black eyes and bruising as a result of the incident.
Tooker agreed that he was upset that M.A. had taken a work call, but he claimed
that the fight began because M.A. was drunk and texting as she was driving. When he
became concerned that they were “swerving” and asked her to get off her phone, “[s]he
reached over [and] . . . whacked [him] in the face with the phone.” She then threw the
phone at him, and he tossed it out the window. According to Tooker, M.A. resumed
texting on her other phone, which he grabbed and tried to throw out the window.
Attempting to stop him, she “whacked her face on the rearview mirror console in her
car,” causing her injuries.
After the August 2013 incident, M.A. told Tooker that the relationship was over.
But Tooker threatened to kill himself if M.A. stopped talking to him, and they continued
to communicate by phone and text message. He began sending her “hundreds” of text
messages a day, including some threatening her, but they stopped later that month. As it
2 Tooker testified that he caused the damage because he was mad that he and M.A.
“weren’t carrying out the agreements that [they] had,” including to stay sober, but he did
not contradict her testimony about the event.

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turned out, Tooker had been hospitalized on August 26 after sustaining a traumatic brain
injury.
When Tooker got out of the hospital, he resumed sending text messages to M.A.
She testified that although the messages were initially “loving,” they became threatening
when she did not respond. As a result of this harassment, she eventually changed her
personal and business email addresses and cell phone numbers. After Tooker posted
suggestive photographs of M.A. online, she “knew that he was serious about all of the
threats he said he was going to do to [her],” so she obtained a restraining order against
him in April 2014. The restraining order prohibited him from coming within 300 feet of
her, her dog, and her property.
Tooker’s stalking behavior persisted, however. In the spring of 2015, an
anonymous letter was sent to M.A.’s employer claiming that M.A. “was driving [her]
company car drunk, smoking marijuana, snorting cocaine.” M.A. testified that she
suspected Tooker had sent the letter, based on its “[w]riting patterns and styles,
abbreviations that he would always use, and just the writing style.” Tooker also “created
fake Russian women profiles on Facebook to contact [her]” and contacted her sister
several times.
B. The Charged Attack.
Tooker testified that he had serious difficulties after his brain injury and became
homeless in the spring of 2016. About two months later, in mid-June, he decided to ride
his bicycle “up the coast north toward Portland, ultimately,” although he did not bring
either a tent or any food. He admitted to looking up M.A.’s address “out of great
curiosity,” and he decided to ride by her house on his way north for “closure.” He also
brought a gun, which he explained he had originally given to M.A. as a gift but kept after
the relationship ended.
M.A. testified that at around 10:45 a.m. on June 18, 2016, she was gardening
outside her house. Her dog was with her. As she turned to go inside, she saw a man
standing in her backyard. Thinking he was a friend of hers, she greeted him, but the man
“didn’t say anything back, and he was just staring at [her] with a smug like FU look on

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his face.” The man then said, “Keep your mouth shut, . . . I’m here to kill you,” and she
recognized him as Tooker. M.A. explained that she did not initially recognize Tooker,
whom she had not seen in almost three years, because “[w]hen [she] dated him, he had a
very short haircut, clean cut, no beard, and when [she] saw him that day, he had very long
hair, scraggly man bun, hair disheveled out of it, really long beard.”
M.A. testified that after Tooker threatened to kill her, he pulled a gun from his
pocket. She recognized it as the gun he had bought for her while they lived together in
Ohio. She told him he needed to leave because of the restraining order, which was still
active, but he again told her to be quiet and said he was there to kill her. He then ordered
her to drop the pruning shears she was holding, which she did “out of instinct.” But
when he directed her to a corner of the yard, she picked up the pruning shears and ran
toward the yard’s back gate, which was padlocked.
As M.A. tried to climb over the gate to escape, Tooker grabbed her shirt and
pulled her to the ground, where she landed on her back. M.A. testified that she was
repeatedly screaming, “He’s got a gun. He’s going to kill me.” Tooker slammed her
head on the ground and, after a struggle during which she ended up on her stomach, he
stabbed her with the pruning shears about eight times in the back of her neck and head.
She testified that as the struggle continued, she was able to grab the pruning shears from
him. In trying “to stab him to get him off of [her],” she ended up on her back again.
Tooker pinned M.A. and began strangling her with both his hands.
That morning, K.H. was with his daughter at her softball pitching lesson at the
home of W.G., a neighbor of M.A.’s. During the lesson, the two men heard “high-
pitched screaming” that sounded “terrified.” They ran out to the street, at which point
K.H. could hear a dog barking and a woman screaming, “He’s killing me.” Another
neighbor who had also come outside called 911.
K.H. ran down the street to M.A.’s fence but could not see through it, so he
jumped over it into her yard. Once he landed, he “saw a woman on the ground with a
man on top of her with both hands on her throat, . . . [c]hoking her.” K.H. kicked Tooker
to “knock him off” M.A. and then “wrestled him to the ground and held him there.”

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Meanwhile, W.G. was able “to rip the fence open” and enter the yard. After determining
that K.H. had successfully subdued Tooker, W.G. went to help M.A., who initially
appeared unconscious but then began screaming again. W.G. asked Tooker, “What the F
were you thinking?” Tooker responded, “I’m her ex-boyfriend[.] . . . She’s ruining my
life.”
After W.G. calmed M.A. and determined that her wounds were “pretty severe” but
“not life threatening,” M.A. told him that Tooker had stabbed her and he had a gun.
W.G. ran over to Tooker and screamed at him, “She said you have a gun. Where is the F-
ing gun?” Tooker responded that it was in his pocket, and he let K.H. pull an empty
holster from his pocket. At that point, a Marin County Sheriff’s deputy arrived and
quickly located the gun by the fence. It was unloaded and locked so that the hammer
could not be pulled back.3 A live round was located under Tooker’s leg.
M.A. was taken to the hospital after the attack. She had sustained stab wounds,
bruising from her fall from the fence and the strangulation, and other cuts and bruises
from the struggle, and one of her head wounds required stitches. She testified that she
was in pain for several weeks after the attack and has significant scarring, as well as
continuing pain from nerve damage.
Tooker testified that he had not planned to stop at M.A.’s house, and he did not
know why he entered her backyard. He claimed that what happened next was “very
sketchy” and “quite hazy,” and on direct examination he testified that his “last very clear
memory” was hearing M.A.’s dog bark as he rode his bicycle by her house. He
remembered M.A. “swinging the shears at [him],” but he did not recall stabbing or
choking her. On cross-examination, he acknowledged remembering additional details,
including that M.A. had tried to climb the fence but fell and that he was on top of her, but
he specifically denied stabbing or strangling her.
3 The gun’s locking mechanism could be unlocked only by a hex key. No such
key was found in Tooker’s belongings, and Tooker testified that he always kept the gun
locked and no longer knew where the key was.

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C. Tooker’s Plan to Prevent M.A. from Testifying.
After his arrest, Tooker was incarcerated at the Marin County Jail. Around
November 2016 he became friendly with R.D., another inmate. According to R.D.,
Tooker said he was charged with the attempted murder of his ex-girlfriend, and they
discussed a plan to stop her from testifying.4 As described by R.D., “We discussed first it
would be a phone call. If the phone call didn’t work, I was supposed to have [E]psom
salt and hamburger to throw over the fence to [M.A.’s] dog . . . to make him sick[,] . . . to
let her know that I wasn’t fucking around when I made the phone call, to prove that I’d
been there once before, to know that I knew where she was.” Tooker also sent R.D. a
note instructing him “to do whatever [he] felt was necessary” if the phone call did not
work, which R.D. interpreted to mean killing M.A.
R.D. agreed to call M.A., for which he was to receive a “down payment” of a $300
EBT card and the balance in artwork that Tooker supposedly had in storage in Ohio. The
two men scripted the phone call, which had R.D. representing himself as someone from
M.A.’s company who “needed a certain drug” and wanted to speak to her. Tooker also
gave R.D. a map of M.A.’s house and directions on how to Google her address. R.D.
received the EBT card from Tooker’s brother and was released in February 2017, but he
did not follow the plan because he “didn’t feel comfortable with it.” Eventually, R.D.
reported the plan to law enforcement.
Tooker denied that he had “engage[d]” R.D. to threaten M.A. Rather, Tooker
claimed that R.D. had stolen the $300 from him and that the notes between them, several
of which were introduced into evidence, reflected “a proposed movie script . . . based on
the book Gone Girl” that R.D. wanted his help in writing.
D. The Verdicts and Sentencing.
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 (strangulation), and corporal injury on a former dating partner, and a
4 R.D., who admitted that he had been convicted of numerous crimes dating back
to 2004, testified under a grant of immunity.

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misdemeanor count of violation of a domestic relations court order.5 It also found true,
as to the convictions for attempted murder, strangulation-based assault, and corporal
injury, the allegation that Tooker personally inflicted great bodily injury under
circumstances involving domestic violence, and, as to the criminal-threats offense, the
allegation that he personally used a firearm.6 But the jury found not true the allegation
that the attempted murder was deliberate and premeditated.7
The trial court sentenced Tooker to a total term of 16 years in prison, composed of
a term of nine years for attempted murder and consecutive terms of five years for the
great-bodily-injury finding as to the attempted murder, eight months for criminal threats,
and one year and four months for the great-bodily-injury finding as to the criminal
threats. Four-year terms for both assault convictions and the corporal-injury conviction
were imposed and stayed, and a one-year county jail term for the court-order violation
was imposed and deemed served based on custody credits.
II.
DISCUSSION
A. There Was Substantial Evidence of Tooker’s Competence to Stand Trial.
Tooker claims that insufficient evidence supported the trial court’s determination
that he was competent to stand trial, violating his due process rights. We are not
persuaded.
1. Additional facts.
In August 2016, well over a year before trial, Tooker’s original trial counsel
asserted his belief that Tooker was incompetent because he was unable to assist in his
own defense. Counsel did so as his relationship with Tooker was disintegrating,
5 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 great bodily injury), 273.5, subdivision (a) (corporal
injury on dating partner), and 273.6, subdivision (a) (violation of court order).
6 The great-bodily-injury allegation was found true under section 12022.7,
subdivision (e)(1), and the personal-use allegation was found true under section 12022.5,
subdivision (a).
7 The premeditation allegation was made under section 664, subdivision (a).

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prompting multiple Marsden8 motions and counsel’s eventual withdrawal from the case.
The trial court suspended the proceedings, ordered a competency hearing, and appointed
a psychiatrist and a psychologist to evaluate Tooker.
The following month, the appointed psychiatrist, Martin Blinder, M.D., submitted
a report and supplemental report concluding that Tooker was competent, and the
appointed psychologist, Mary Ann Yaeil Kim, Ph.D., submitted a report concluding that
Tooker was not competent. The reports were primarily based on in-person examinations
of Tooker, though both doctors also reviewed his medical records and information about
the crimes he committed.
Dr. Blinder diagnosed Tooker with “[s]talking (erotomania),” “[e]ncephalopathy
secondary to traumatic brain injury, largely recovered,” “[s]ubstance dependency in
institutional remission,” and “[o]bsessive-compulsive personality.” After Dr. Blinder
explained that he had “put considerable effort into ensuring that [Tooker was]
comfortable, non-defensive, and quite frankly, [found the doctor] likeable,” he opined,
“[A]t Mr. Tooker’s best, there is no question that he is entirely
competent in every legal definition of that word. At his worst, not so much.
Particularly when he finds himself at this crucial moment in his life,
entirely dependent upon an attorney with whom he does not see eye to eye,
his ability to rationally collaborate with counsel in the preparation of a
defense can ‘go south’ in a hurry.
“But as the court knows, ‘competence’ is less a relationship issue
than an objective clinical measure of the degree to which an individual is
cognitively able to understand the nature of the charges, follow the contours
of the legal road ahead, and if he so chooses, collaborate with counsel.
Once Mr. Tooker ‘felt good’ about me he exhibited no ‘mental disease or
defect’ . . . that would substantially interfere with his ability to do any of
these things. . . . In short, alcohol and drug addiction, cerebral
encephalopathy, and personality quirks notwithstanding, this gentleman is
legally and clinically entirely equal to his day in court.”
8 People v. Marsden (1970) 2 Cal.3d 118.

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In his supplemental report, Dr. Blinder offered an additional diagnosis of antisocial
personality disorder, which did not change his “fundamental conclusions that if [Tooker]
so chooses, [he] is entirely competent to go forward with a trial.”
Dr. Kim, on the other hand, determined that Tooker was not “trial competent due
to a severe personality disorder,” which she characterized as “Paranoid Personality
Disorder.” She believed that he was able to understand the proceedings, but he was not
“able to cooperate in a rational manner with counsel” due to his “pervasive distrust and
suspiciousness of others.” Dr. Kim also concluded that Tooker “would not be able to
prepare and conduct his own defense in a rational manner with or without counsel. This
is something Mr. Tooker admits himself, he does not know how to defend himself.”
In October 2016, after the parties agreed that the issue of Tooker’s competency
could be decided based on the doctors’ reports, the trial court ruled that Tooker was
competent and reinstated criminal proceedings. Explaining its reasoning, the court stated,
“I’ve read these reports very carefully and they do reach different
conclusions. However, I believe that one report is so much stronger and
substantiated in its conclusion than the other. One is very strong and
contemplated and done by a medical doctor who did a very thorough and
persuasive analysis on the defendant and reached clinical decisions that
both are sound, as far as the Court can tell from these reports, and make
sense in the context of the reasoning. That’s Dr. Blinder’s report. He
concludes that the defendant is competent.
“The other report by Ph.D. Kim is uncomfortably superficial, has no
real substantive analysis in terms of what mental disorders the defendant
would be suffering from that would afflict him here, essentially is
unpersuasive in its conclusion, that report concludes the defendant is not
competent, but I don’t think that that report is well founded, particularly in
the context of Dr. Blinder’s report.”
2. Discussion.
A defendant who, “as a result of mental disorder or developmental disability, . . .
is unable to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner” is not competent to stand trial. (§ 1367,
subd. (a); People v. Ramos (2004) 34 Cal.4th 494, 507.) Federal due process and state

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statutory law prohibit the trial or conviction of a mentally incompetent defendant.
(Ramos, at p. 507; People v. Jackson (2018) 22 Cal.App.5th 374, 391.) The key issue is
whether the defendant has “ ‘ “ ‘sufficient present ability to consult with his [or her]
lawyer with a reasonable degree of rational understanding’ and ‘a rational as well as
factual understanding of the proceedings against him [or her].’ ” ’ ” (Ramos, at p. 507.)
A defendant is presumed competent unless proven otherwise by a preponderance
of the evidence. (§ 1369, subd. (f).) “On its face, the statutory scheme does not
expressly impose the burden of proof on any specific party. Rather, the presumption of
competency operates to place the burden of proof on the party claiming the defendant is
incompetent.” (In re R.V. (2015) 61 Cal.4th 181, 189.) We review a trial court’s
determination that a defendant is competent for “substantial evidence in the record—that
is, for evidence that is reasonable, credible, and of solid value.” (People v. Jackson,
supra, 22 Cal.App.5th at p. 392.)
As Tooker recognizes, one of the experts concluded that he could assist counsel in
his own defense, which would normally constitute sufficient evidence of competency in
this respect. Nevertheless, Tooker contends this was a “perfunctory conclusion” that
Dr. Blinder “tellingly prefaced . . . with several observations that contradicted [it].”
According to Tooker, Dr. Blinder “chose . . . to assess [him] at his best,” yet the doctor
also recognized that his “ability to rationally collaborate with counsel in the preparation
of a defense can ‘go south’ in a hurry.” Tooker claims that this amounted to a finding
that “he was unable to properly consult with counsel and assist in his defense,” echoing
Dr. Kim’s conclusion.
We disagree with Tooker’s interpretation of Dr. Blinder’s conclusion. Dr. Blinder
recognized that Tooker’s relationship with counsel would affect Tooker’s level of
cooperation, but he then explained that “ ‘competence’ is less a relationship issue than an
objective clinical measure of the degree to which an individual is cognitively able
to . . . [,] if he so chooses, collaborate with counsel. Once Mr. Tooker ‘felt good’ about
me he exhibited no ‘mental disease or defect’ . . . that would substantially interfere with
his ability to do [this].” In other words, Dr. Blinder opined that Tooker might choose not

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to cooperate if he did not like counsel, but he was cognitively able to do so. This
constituted substantial evidence that Tooker was able to assist counsel in conducting a
rational defense (§ 1367, subd. (a)), defeating this claim.
B. Tooker’s Claims of Error Involving the Evidence of Prior Domestic
Violence All Fail.
Tooker claims that the trial court improperly admitted evidence of other acts of
domestic violence under Evidence Code section 1109 (section 1109) because that statute
is unconstitutional, as well as because the evidence should have been excluded under
Evidence Code section 352 (section 352). He also claims that CALCRIM No. 852A, the
jury instruction on evidence admitted under section 1109, upsets the presumption of
innocence. These claims are unpersuasive.
1. Additional facts.
Before trial, the prosecution sought to introduce evidence of Tooker’s past acts of
domestic violence against M.A. on two occasions: the 2011 incident at the Ohio hotel,
and the 2013 incident on the Richmond/San Rafael Bridge. Tooker objected that the
evidence was unduly prejudicial under section 352 because he was not convicted for this
behavior.
The trial court concluded the evidence qualified for admission under section 1109
and should not be excluded under section 352. The court found that both incidents were
“highly relevant” and not remote, since they had occurred within five years of the
charged attack. The court also determined that presenting evidence of them would not
involve an undue consumption of time, since both involved M.A. and would not require
testimony from other witnesses.
The trial court gave a modified version of CALCRIM No. 852A, the form
instruction on evidence of uncharged domestic violence. In pertinent part, the instruction
informed the jurors that if they found by a preponderance of the evidence that Tooker
committed the prior acts, they could, but were not required to, “conclude from that
evidence that the defendant was disposed or inclined to commit domestic violence and,

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based on that decision, also conclude that the defendant was likely to commit and did
commit all [sic], as charged here.”
2. General legal standards.
Section 1109, subdivision (a)(1) provides, with certain inapplicable exceptions,
that “in a criminal action in which the defendant is accused of an offense involving
domestic violence, evidence of the defendant’s commission of other domestic violence is
not made inadmissible by [Evidence Code] Section 1101 if the evidence is not
inadmissible pursuant to Section 352.” Evidence Code section 1101, in turn, generally
prohibits the admission of “evidence of a person’s character or a trait of his or her
character . . . when offered to prove his or her conduct on a specified occasion,” which
we will refer to as propensity evidence. (Evid. Code, § 1101, subd. (a).)
We review a trial court’s admission of evidence under section 1109 for an abuse of
discretion. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138.) Tooker’s claims
involving the statute’s constitutionality and the correctness of CALCRIM No. 852A
present legal questions we review de novo. (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088; People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
3. Tooker’s constitutional claims fail under governing precedent.
In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court rejected a due-
process challenge to Evidence Code section 1108 (section 1108), which authorizes the
admission of propensity evidence in sex-offense cases. (Falsetta, at p. 907.) In holding
that the statute was constitutional, the Supreme Court emphasized that section 352
functioned as a safeguard against the risks of judicial inefficiency and undue prejudice
that arise from introducing propensity evidence. (Falsetta, at pp. 916–917.) Given that
section 1108 and section 1109 are nearly identical, numerous Courts of Appeal have
relied on Falsetta to reject due-process challenges to the latter statute. (People v.
Cabrera (2007) 152 Cal.App.4th 695, 704 [collecting cases].) As Tooker concedes, we
are bound to follow Falsetta as controlling precedent, and we therefore will not entertain
his arguments involving whether that case was wrongly decided. (See Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

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Tooker also argues that section 1109 violates equal protection because it treats
defendants charged with domestic violence offenses differently than other similarly
situated individuals. Division Three and Division Four of this court rejected the same
claim in People v. Jennings (2000) 81 Cal.App.4th 1301 and People v. Price (2004)
120 Cal.App.4th 224 respectively, and Tooker offers us no reason to depart from these
decisions’ reasoning. His argument is premised on the contention that section 1109
violates due process, meaning that strict scrutiny should be applied to determine whether
it also violates equal protection, but as discussed above we are bound to conclude that the
statute does not violate due process. Therefore, this constitutional challenge fails as well.
4. The trial court did not abuse its discretion under section 352.
Tooker next argues that even assuming section 1109 is constitutional, the trial
court should have excluded the evidence of prior domestic violence under section 352
because it was unduly prejudicial. He primarily relies on People v. Disa (2016)
1 Cal.App.5th 654. In that decision, our colleagues in Division Two reversed the
defendant’s first degree murder conviction on the basis that the trial court abused its
discretion under section 352 by admitting certain evidence of prior domestic violence.
(Disa, at pp. 658, 668.) The defendant claimed that he had accidentally killed his
girlfriend by putting her in a chokehold, and the prior domestic violence involved his
lying in wait for an ex-girlfriend and another man before stabbing the man several times.
(Id. at pp. 657–658, 662–663.) Disa concluded that although some evidence about the
prior incident was admissible, the trial court abused its discretion by not excluding the
specific evidence that the defendant lay in wait and attacked when the victims were
asleep, because that evidence “was at odds with [the trial court’s] . . . expressed
concerns” involving “the serious risk the jury would improperly use the specific facts of
[the] defendant’s past conduct to find premeditation and deliberation in the current
matter.” (Id. at pp. 673–674.)
Tooker states that while this case “may not present an instance of error as
egregious as that in Disa,” the probative value of the evidence at issue here was likewise
“outweighed by its prejudicial impact and risk of jury confusion.” He argues that similar

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to Disa, “the central questions for the jury [here] were whether [he] acted with the
required mental state for each charged offense and whether his conduct was premeditated
and deliberated. On those questions, the prior offense evidence was crucial and highly
prejudicial because the jury likely would have concluded that . . . if [he] had previously
engaged in intentional acts of domestic violence, he likely did so with the same intent on
the present occasion.” We see no meaningful parallels between this case and Disa. The
previous incidents here did not involve any planning activity or otherwise suggest a
deliberate intent, and in any case the jury found that the attempted murder was not
premeditated. Also, Disa held that evidence of the prior incident should have been
limited, not excluded entirely (see People v. Disa, supra, 1 Cal.App.5th at pp. 673–674),
but Tooker does not explain how the trial court here could have limited the evidence in
order to address his concerns. In short, Disa does not support his argument.
In addition, Tooker claims that the evidence of his prior acts was especially
prejudicial because he was not prosecuted for the previous incidents, so “the jurors likely
concluded [he] was never adequately punished for those offenses.” He also argues that
the probative value of the evidence was diminished because it consisted of “more
allegations of the same type of misconduct made by the same complaining witness,”
which did not assist “the jury in evaluating [his and M.A.’s] relative credibility.”
Although our state Supreme Court has stated that the probative value of uncharged
conduct may be increased if there are “independent sources of evidence (the victims) in
each offense” (People v. Falsetta, supra, 21 Cal.4th at p. 917), evidence of a “defendant’s
history of similar conduct against the same victim” admitted under section 1109 is
generally “highly relevant and probative” and less inflammatory than it would be if it
involved separate victims. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1029.) And
while “the prejudicial impact of the evidence is reduced if the uncharged offenses
resulted in actual convictions and a prison term” (Falsetta, at p. 917), the fact that some
factors may have weighed in favor of excluding the evidence does not establish error. In
short, Tooker fails to convince us that the trial court abused its discretion under
section 352 by admitting the challenged evidence.

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5. Tooker’s claim of instructional error lacks merit.
Finally, Tooker contends that the jury instruction on the evidence admitted under
section 1109 “interferes with the presumption of innocence” and “makes conviction
possible without proof beyond a reasonable doubt.” As he recognizes, our state Supreme
Court rejected a similar claim involving CALJIC No. 2.50.01, the previous form
instruction on evidence about prior sexual offenses admitted under section 1108.
(People v. Reliford (2003) 29 Cal.4th 1007, 1012–1013.) Relying on Reliford, other
decisions have rejected such challenges to CALJIC No. 2.50.02, the previous form
instruction on evidence about prior domestic violence admitted under section 1109, as
well as more recent form instructions on both sections 1108 and 1109. (E.g., People v.
Johnson (2008) 164 Cal.App.4th 731, 738–739 [former CALCRIM No. 852]; People v.
Cromp (2007) 153 Cal.App.4th 476, 479–480 [former CALCRIM No. 1191]; People v.
Pescador (2004) 119 Cal.App.4th 252, 261 [CALJIC No. 2.50.02].) Because Tooker
does not explain why he believes Reliford was wrongly decided and makes his argument
“for purposes of preserving the claim for federal review,” we will not consider it further.
C. Any Error in the Omission of a Jury Instruction on Unconsciousness Was
Harmless.
Tooker next argues that the trial court prejudicially erred by failing to instruct on
unconsciousness as a defense, requiring reversal of his convictions for attempted murder,
both assaults, and corporal injury. We are not persuaded.
“Unconsciousness, if not induced by voluntary intoxication, is a complete defense
to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise
to the level of coma or inability to walk or perform manual movements; it can exist
‘where the subject physically acts but is not, at the time, conscious of acting.’ ”
(People v. Halvorsen (2007) 42 Cal.4th 379, 417.) A trial court has a sua sponte duty to
instruct on unconsciousness “if it appears the defendant is relying on the defense, or if
there is substantial evidence supporting the defense and the defense is not inconsistent
with the defendant’s theory of the case.” (People v. Rogers (2006) 39 Cal.4th 826, 887.)

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We review de novo “a claim that a court failed to properly instruct on the applicable
principles of law.” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
The parties agree that Tooker did not rely on the defense of unconsciousness but
instead argued at trial that he suffered from a neurological issue that precluded him from
forming the necessary intent. But we need not address whether substantial evidence
supported an unconsciousness defense, as any error was harmless beyond a reasonable
doubt because “ ‘the factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant under other, properly given instructions.’ ”
(People v. Wright (2006) 40 Cal.4th 81, 98.) Although the jury found that the attempted
murder was not willful, deliberate, and premeditated, it did make findings of willfulness
in connection with the other five convictions. It was instructed that “[s]omeone commits
an act willfully when he or she does it willingly or on purpose,” and it found that Tooker
willfully threatened to kill or cause great bodily injury to M.A., willfully stabbed her with
the pruning shears, willfully strangled her, and willfully violated the court order. The
conclusion that Tooker purposely performed all of these acts cannot be reconciled with
the theory that he was unconscious when he attacked M.A., and any erroneous failure to
instruct on unconsciousness was therefore harmless.
D. The Jury Instruction on Attempted Voluntary Manslaughter Did Not
Impermissibly Shift the Burden of Proof.
Tooker’s final claim of instructional error is that the jury instruction on attempted
voluntary manslaughter lightened the prosecution’s burden of proof on the charge of
attempted murder. We reject this claim.
The jury was instructed under CALCRIM No. 604 that “[a]n attempted killing that
would otherwise be attempted murder is reduced to attempted voluntary manslaughter if
the defendant attempted to kill a person because he acted in imperfect self-defense.”
Tooker argues that the instruction created a presumption in favor of an attempted murder
verdict, because it required the jurors to convict him of that crime “unless the defense had
convinced them that the attempted homicide should be ‘reduced’ to attempted voluntary
manslaughter.”

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Initially, we agree with the Attorney General that Tooker forfeited this claim by
failing to object below. “ ‘A party may not complain on appeal that an instruction correct
in law and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ ” (People v. Jennings (2010)
50 Cal.4th 616, 671.) Tooker acknowledges that his claim is of this type, and we thus
conclude he forfeited it by failing to raise it in the trial court. (See id. at pp. 671–672.)
Nevertheless, we address the claim on the merits to avoid addressing his related
claim of ineffective assistance of counsel. “ ‘A defendant challenging an instruction as
being subject to erroneous interpretation by the jury must demonstrate a reasonable
likelihood that the jury understood the instruction in the way asserted by the defendant.
[Citations.]’ [Citation.] ‘ “[T]he correctness of jury instructions is to be determined from
the entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.” ’ ” (People v. Solomon (2010) 49 Cal.4th 792, 822.) Again, we
review this claim of instructional error de novo. (People v. Ghebretensae (2013)
222 Cal.App.4th 741, 759.)
Here, the jury was instructed under CALCRIM No. 220 that Tooker was presumed
innocent and that the prosecution had the burden to prove his guilt beyond a reasonable
doubt. In addition, the challenged instruction itself provided that “[t]he People ha[d] the
burden of proving beyond a reasonable doubt that the defendant was not acting in
imperfect self-defense.” It also stated that if the prosecution “ha[d] not met this burden,
[the jury had to] find the defendant not guilty of attempted murder.” Thus, read in
context, CALCRIM No. 604 did not impermissibly shift the burden to Tooker to prove
that he had acted in imperfect self-defense, and there is no reasonable likelihood that the
jury interpreted it to do so.
In arguing otherwise, Tooker attempts to analogize the challenged instruction to
the instruction at issue in People v. Owens (1994) 27 Cal.App.4th 1155, a case decided
by Division Five of this court. Owens addressed a former version of CALJIC
No. 10.42.6 on continuous sexual abuse of a child, which stated in part, “ ‘The People
have introduced evidence tending to prove that there are more than three acts of

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substantial sexual conduct or lewd and lascivious conduct upon which a conviction . . .
may be based.’ ” (Owens, at p. 1158.) Although Division Five expressed concern that
the phrase “tending to prove” permitted “the inference that the People have, in fact,
established guilt,” it concluded that the error did not require reversal because it was not
“likely to have misled the jury” in light of the other instructions given on the presumption
of innocence and reasonable doubt. (Id. at pp. 1158–1159.) Even assuming that the
references in the instructions here to an attempted killing being “reduced” could permit a
similar inference, Owens supports our conclusion that, in light of the other instructions
given, the jury was not reasonably likely to have been misled.
Tooker argues that CALCRIM No. 604 also “operated in another related, but
analytically different, way to [his] disadvantage” because it “likely had the effect of
setting an order of deliberations for the [jurors] in that, if they were to presume the crime
was attempted murder unless convinced otherwise, the logical starting point for their
deliberations was on the question whether this was a case of attempted murder.” He
relies on People v. Kurtzman (1988) 46 Cal.3d 322, in which the Supreme Court held that
although a jury cannot return a verdict on a lesser included offense before acquitting on a
greater offense, it may deliberate on lesser offenses before reaching agreement on the
greater offense. (Id. at pp. 324–325.) The Court concluded that a trial court’s
instructions in response to the jury’s expressions of being deadlocked were erroneous
because they informed the jury that it could not consider a lesser included offense before
reaching a resolution on greater offenses. (Id. at pp. 327–328, 336.)
In contrast, the trial court here made no such comments suggesting that the jury
could not deliberate on a lesser included offense before returning a verdict on the greater
offense. Nor is there anything about the references in CALCRIM No. 604 to an
attempted killing being “reduced” to attempted voluntary manslaughter that would
suggest to the jury that it could not even deliberate on that lesser offense before agreeing
on the charge of attempted murder. As a result, this aspect of Tooker’s challenge to the
instruction also fails.

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E. Tooker’s Claim that Section 422 Is Unconstitutionally Vague Lacks Merit.
Section 422, subdivision (a) makes it a crime to “willfully threaten[] to commit a
crime which will result in death or great bodily injury to another person, with the
specific intent that the statement . . . is to be taken as a threat, even if there is no intent of
actually carrying it out, which, on its face and under the circumstances in which it is
made, is so unequivocal, unconditional, immediate, and specific as to convey to the
person threatened, a gravity of purpose and an immediate prospect of execution of the
threat, and thereby causes that person reasonably to be in sustained fear for his or her
own safety or for his or her immediate family’s safety.” (Italics added.) Tooker claims
that the italicized language renders the statute unconstitutionally vague, “because it calls
upon law enforcement to evaluate the nature of threats and to determine, on a case-by-
case basis, and under a myriad of circumstances, whether a threat is of the type that will
result in great bodily injury or death. Also, by linking the threat to a crime causing death
or great bodily injury, it is unclear to the general public what type[s] of threats are illegal,
because of uncertainties as to what threatened crimes are of the type to result in death or
great bodily injury.”
A penal statute violates due process and is therefore void for vagueness only if it
“ ‘fails to provide adequate notice to those who must observe its strictures’ and
‘ “impermissibly delegates basic policy matters to [law enforcement officers], judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.” ’ ” (People v. Rubalcava (2000) 23 Cal.4th
322, 332; People v. Maciel (2003) 113 Cal.App.4th 679, 683 (Maciel).) “A criminal
statute is unconstitutionally vague on its face only if it is ‘ “impermissibly vague in all of
its applications.” ’ ” (Maciel, at p. 683, quoting People ex rel. Gallo v. Acuna (1997)
14 Cal.4th 1090, 1116, italics omitted.)
We agree with the Attorney General that this claim fails because Tooker’s “own
conduct falls clearly within [section 422’s] bounds.” “[A] defendant who falls ‘squarely
within’ the reach of a statute lacks standing to challenge its vagueness as it ‘might be
hypothetically applied to the conduct of others.’ ” (People v. Murphy (2001) 25 Cal.4th

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136, 149, quoting Parker v. Levy (1974) 417 U.S. 733, 756.) If we can “give [a statute] a
‘ “reasonable and practical construction” ’ that accords with the drafters’ probable intent
and encompasses the defendant’s conduct,” then we need not “consider every
conceivable situation that might arise under [the] statute’s language.” (Murphy, at
p. 149.) Here, it is clear that section 422, which prohibits threatening to commit a crime
that would cause death, covered Tooker’s conduct of telling M.A. that he was going to
kill her. (See Maciel, supra, 113 Cal.App.4th at p. 682, fn. 2.) As a result, and because
Tooker “does not argue that [section 422] improperly prohibits a substantial amount of
constitutionally protected conduct, he may not challenge it on vagueness grounds.”
(Murphy, at p. 149.)
In any case, Tooker’s vagueness claim fails on the merits. In Maciel, the Second
District Court of Appeal rejected the same assertion “that [section 422’s] language fails
to advise individuals as to those threats proscribed and grants unfettered discretion to law
enforcement to determine those statements that constitute threats.” (Maciel, supra,
113 Cal.App.4th at p. 682.) The decision explained that, read in context with the other
statutory language, the phrase “ ‘willfully threatens to commit a crime which will result
in death or great bodily injury’ . . . does not criminalize all threats of crimes that will
result in death or great bodily injury,” but instead “only serious threats, intentionally
made, of crimes likely to result in immediate great bodily injury.” (Id. at p. 685.) Maciel
also concluded that even read in isolation, the phrase “ ‘crime which will result in great
bodily injury’ ” is not vague, because it “means objectively, i.e., to a reasonable person,
likely to result in great bodily injury”—a term that cases have consistently found
sufficiently clear—“based on all the surrounding circumstances.” (Id. at pp. 685–686.)
Tooker offers us no good reason not to follow Maciel. He argues only that its
holding is “suspect” because of its reliance on State v. Schmailzl (Neb. 1993) 502 N.W.2d
463, 466–467, a case upholding Nebraska’s criminal threats statute. As does Tooker, the
Maciel defendant relied on State v. Hamilton (Neb. 1983) 340 N.W.2d 397, in which the
Nebraska Supreme Court invalidated an earlier version of the state’s criminal threats
statute that contained some language similar to that of section 422. (Maciel, supra,

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113 Cal.App.4th at p. 686, fn. 3.) In a footnote following the conclusion of its vagueness
analysis, Maciel acknowledged this similarity but noted that the earlier version of
Nebraska’s statute “did not include language that the victim must take the threat seriously
or any intent element” and that the amended version had since been upheld in Schmailzl.
(Maciel, at p. 686 & fn. 3.) This passing mention of Schmailzl was hardly the
cornerstone of Maciel’s analysis; in any case, we choose to follow a California decision
that is directly on point over a decades-old Nebraska case. Section 422 is not
unconstitutionally vague.
F. Dueñas Does Not Warrant a Remand in These Circumstances.
The trial court imposed a $240 court operations assessment under section 1465.8,
subdivision (a), a $180 criminal conviction assessment under Government Code
section 70373, and a $300 restitution fine under section 1202.4, subdivision (b). Relying
on Dueñas, which concerned the same three charges (Dueñas, supra, 30 Cal.App.5th at
p. 1162), Tooker contends that the assessments must be stricken and the fine must be
stayed unless and until the court finds he is able to pay. We disagree.
In Dueñas, Division Seven of the Second District Court of Appeal addressed a
challenge to the assessments and restitution fine raised by Velia Dueñas, “an indigent and
homeless mother of young children.” (Dueñas, supra, 30 Cal.App.5th at p. 1160.)
Unable to work because of her cerebral palsy, Dueñas lost her driver’s license when she
could not pay assessments for juvenile citations she received as a teenager. (Id. at
p. 1161.) Over the ensuing years, Dueñas was convicted of several misdemeanors
because she continued to drive without a license and spent weeks in jail in lieu of paying
additional fees and fines, but she remained unable to pay off her debt. (Ibid.) In the most
recent case, she was placed on summary probation and ordered to pay the three charges
within three years. (Id. at p. 1163.) Although the trial court assured Dueñas she would
not be “ ‘punished’ ” if she was unable to pay by that time, it also stated that “ ‘[t]hose
[sums] will go to collections without any further order from this court.’ ” (Ibid.)
Against this background, Dueñas held that “due process of law requires [a] trial
court to conduct an ability to pay hearing and ascertain a defendant’s present ability to

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pay before it imposes court facilities and court operations assessments.” (Dueñas, supra,
30 Cal.App.5th at p. 1164.) It also held that while “section 1202.4 bars consideration of a
defendant’s ability to pay unless the judge is considering increasing the [fine] over the
statutory minimum, the execution of any restitution fine imposed under this statute 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.”9 (Ibid.)
Initially, the Attorney General argues that Tooker forfeited his Dueñas claim
because he failed to object to the challenged fees and fine. Relying on People v.
Frandsen (2019) 33 Cal.App.5th 1126, the Attorney General denies that an objection
would have been futile or that Dueñas was “an unforeseeable shift in the law.” In
Frandsen, Division Eight of the Second District Court of Appeal concluded that nothing
prevented the defendant from making the same objection that the Dueñas defendant did,
observing, “Dueñas was foreseeable. Dueñas herself foresaw it.” (Frandsen, at p. 1154.)
While some decisions have found forfeiture on similar grounds (e.g., People v. Jenkins
(2019) 40 Cal.App.5th 30, 40, review granted Nov. 26, 2019, S258729; People v. Torres
(2019) 39 Cal.App.5th 849, 860), others have disagreed that defendants could have
reasonably anticipated Dueñas. (E.g., People v. Jones (2019) 36 Cal.App.5th 1028,
1031; People v. Johnson (2019) 35 Cal.App.5th 134, 138.) We need not address the split
on this issue, however, because we conclude on the merits that Tooker is not entitled to
relief under Dueñas.
As Division Two of the Second District Court of Appeal recently explained, “[t]o
reach its holding, Dueñas wove together two distinct strands of due process precedent”:
one that “secures a due process-based right of access to the courts,” and another that
“erects a due process-based bar to incarceration based on the failure to pay criminal
penalties when that failure is due to a criminal defendant’s indigence rather than
9 The issue whether a trial court is required to consider a defendant’s ability to pay
before imposing or executing fines, fees, and assessments is pending before our state
Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13,
2019, S257844.)

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contumaciousness.” (People v. Hicks (2019) 40 Cal.App.5th 320, 325 (Hicks), review
granted Nov. 26, 2019, S258946.) We agree with Hicks that the first strand of precedent
is inapplicable, “because the imposition of assessments, fines[,] and fees does not deny a
criminal defendant access to the courts.” (Id. at p. 326; accord People v. Allen (2019)
41 Cal.App.5th 312, 327; People v. Kingston (2019) 41 Cal.App.5th 272, 280.) The
imposition of the charges Tooker challenges “in no way interfered with [his] right to
present a defense at trial or to challenge the trial court’s rulings on appeal,” and he does
not claim otherwise. (Kingston, at p. 281; Hicks, at p. 326.)
We also agree with Hicks that “[t]he second strand [of precedent] . . . does not
dictate Dueñas’s bar on imposing [these charges either] because their imposition, without
more, does not result in incarceration for nonpayment due to indigence.” (People v.
Hicks, supra, 40 Cal.App.5th at p. 326; accord People v. Kingston, supra, 41 Cal.App.5th
at p. 280.) Dueñas concluded that imposing the assessments, which are not meant to be
punitive, nevertheless effectively “transform[s] a funding mechanism for the courts into
additional punishment for a criminal conviction for those unable to pay.” (Dueñas,
supra, 30 Cal.App.5th at pp. 1165, 1168.) The “additional punishment” Dueñas
described consists of the “significant consequences” that occur if a defendant
“blamelessly fails to pay [his or] her assessments”: “ ‘Criminal justice debt and
associated collection practices can damage credit, interfere with a defendant’s
commitments, such as child support obligations, restrict employment opportunities and
otherwise impede reentry and rehabilitation.’ ” (Id. at p. 1168.) But “[a]lthough civil
judgments potentially can have significant negative consequences, not only for indigent
individuals but also for any civil defendant, Dueñas cites no authority for the proposition
that those consequences constitute ‘punishment’ rising to the level of a due process
violation.” (People v. Caceres (2019) 39 Cal.App.5th 917, 927.) Nor does the decision
otherwise explain why “the imposition of a fine on a defendant unable to pay it is
sufficient detriment to trigger due process protections.” (People v. Castellano (2019)
33 Cal.App.5th 485, 490, citing Dueñas, at pp. 1168–1169; see People v. Belloso
(Nov. 26, 2019, B290968) __ Cal.App.5th __ [p. 24].)

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Although we question Dueñas’s analytical underpinnings, we are not prepared to
rule out the possibility that imposing high fines and fees on indigent defendants may
infringe upon fundamental due process or other constitutional rights. Still, we need not
decide whether there was any such infringement here because it is wholly speculative that
Tooker will experience the “additional punishment” Dueñas discussed. Dueñas had
already suffered “cascading consequences” because of “a series of criminal proceedings
driven by, and contributing to, [her] poverty,” and she had already been ordered to pay
the charges at issue by the end of her probation period. (Dueñas, supra, 30 Cal.App.5th
at pp. 1163–1164.) In contrast, nothing about the circumstances here suggests Tooker’s
crimes were “either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty such
that [he will be] trapped in a ‘cycle of repeated violations and escalating debt.’ ” (People
v. Caceres, supra, 39 Cal.App.5th at p. 928 [likelihood of committing crime of criminal
threats not affected by one’s financial circumstances].) Thus, even assuming that Dueñas
was correctly decided on its facts, the hardship here is not akin to the one imposed in that
case.10
Similarly, Dueñas does not support a remand for the trial court to consider
whether the restitution fine imposed on Tooker should be stayed. Dueñas concluded that
because of section 1202.4’s “prohibition on considering the defendant’s ability to pay the
minimum fine, the criminal justice system punishes indigent defendants in a way that it
does not punish wealthy defendants.” (Dueñas, supra, 30 Cal.App.5th at p. 1170.) As
the court explained, “In most cases, a defendant who has successfully fulfilled the
conditions of probation for the entire period of probation has an absolute statutory right to
10 We are less convinced by the Attorney General’s argument that Dueñas is
distinguishable because “it can be presumed that [Tooker] has the ability to satisfy the
imposed assessments and fine through his prison wages and future earnings.” Some
cases have relied on a prisoner’s ability to earn wages in denying relief under Dueñas.
(E.g., People v. Jones, supra, 36 Cal.App.5th at p. 1035; People v. Johnson, supra,
35 Cal.App.5th at pp. 138–139.) But the availability of paid work in prison is hardly
guaranteed, especially the skilled type of work that generates higher wages. (See
People v. Rodriguez (2019) 34 Cal.App.5th 641, 648–649.) Without any evidence on this
issue, we decline to rely on Tooker’s potential prison wages in evaluating his claim.

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have the charges against him or her dismissed” and be relieved of their resulting penalties
and disabilities. (Ibid.) If, however, “a probationer cannot afford the mandatory
restitution fine, through no fault of his or her own he or she is categorically barred from
earning the right to have his or her charges dropped and to relief from the penalties and
disabilities of the offense for which he or she has been on probation, no matter how
completely he or she complies with every other condition of his or her probation,” and
must instead “appeal to the discretion of the trial court and . . . persuade [it] that dismissal
of the charges and relief from the penalties of the offense is in the interest of justice.”
(Id. at pp. 1170–1171.) But Tooker has not been placed on probation, and no issue of his
entitlement to expungement exists. Nor, assuming he is presently unable to pay the
restitution fine, does he explain how its imposition has or may result in his being treated
differently than wealthy defendants “solely and exclusively [because of his] poverty.”
(Id. at p. 1171.)
Although we conclude that Tooker is not entitled to a remand under Dueñas, we
are sympathetic to the laudatory goal of reducing the serious and compounding harm
caused by imposing high fines and fees on indigent defendants. Legislative efforts have
been undertaken to enact a statutory solution, including Assembly Bill No. 927 (2019–
2020 Reg. Sess.), which would have required a finding of a defendant’s ability to pay
before imposing any fine, fee, or assessment other than direct victim restitution.
Although the Governor recently vetoed the bill, he indicated his support for its intent,
stating,
“We must tackle the issue of burdensome fines, fees and assessments
that disproportionately drag low-income individuals deeper into debt and
away from full participation in their communities. However, I do not
believe that requiring a hearing on defendants’ ability to pay is the best
approach in every case.
“There are many ongoing conversations about how we can build a
fairer criminal justice system while also ensuring adequate funding for
courts and victims’ compensation. I believe this issue needs to be tackled
in a comprehensive manner, through the budget process, and I am

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committed to working with the Legislature and stakeholders on ensuring
this gets done.”
(Governor’s veto message to Assem. on Assem. Bill No. 927 (Oct. 9, 2019).) We are
encouraged that the legislative and executive branches of government are working to
overhaul criminal fines and fees. In the meantime, however, we cannot say that the
imposition of such charges in cases like this one violates due process absent a finding of
the defendant’s ability to pay.
G. Even if Section 1001.36 Is Retroactive, Remand Would Be Futile Here.
Finally, Tooker argues that he is entitled to the retroactive application of
section 1001.36, requiring a conditional reversal and remand for the trial court to
determine whether he is eligible for mental health diversion under that statute.
Assuming, without deciding, that section 1001.36 is retroactive, we conclude that remand
would be futile and thus will not reverse Tooker’s convictions on this basis.
A few months after Tooker was sentenced, the Legislature enacted Assembly Bill
No. 1810 (2017–2018 Reg. Sess.), which created a pretrial mental health diversion
program by adding section 1001.36 to the Penal Code. Effective June 27, 2018, certain
defendants who have a covered mental disorder and meet several other criteria under the
statute are eligible for pretrial diversion. (§ 1001.36, subd. (b); Stats. 2018, ch. 34, §§ 24,
37.) Trial courts may exercise their discretion to postpone the prosecution of such
defendants to permit them to undergo mental health treatment. (§ 1001.36, subds. (a) &
(c).) Should a defendant perform “satisfactorily” on diversion, the charges are dismissed,
and “the arrest upon which the diversion was based shall be deemed never to have
occurred.” (§ 1001.36, subd. (e).)
The Courts of Appeal are split on whether, under In re Estrada (1965) 63 Cal.2d
740, section 1001.36 applies retroactively to defendants whose judgments were not yet
final when it took effect, and the issue is on review in the Supreme Court. (People v.
Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220 (Frahs).) In
Frahs, Division Three of the Fourth District Court of Appeal held that section 1001.36
applies retroactively in nonfinal cases. (Frahs, at p. 787.) The Sixth District Court of

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Appeal; Division One of the Fourth District; and most recently, Division Five of this
court have agreed with Frahs. (People v. Hughes (2019) 39 Cal.App.5th 886, 896,
review granted Nov. 26, 2019, S258541; People v. Burns (2019) 38 Cal.App.5th 776,
787–788 (Burns), review granted Oct. 30, 2019, S257738; People v. Weaver (2019)
36 Cal.App.5th 1103, 1121, review granted Oct. 9, 2019, S257049.) On the other hand,
the Fifth District Court of Appeal and Division Six of the Second District Court of
Appeal have disagreed with Frahs and concluded that the statute is not retroactive.
(People v. Torres, supra, 39 Cal.App.5th at p. 852; People v. Craine (2019)
35 Cal.App.5th 744, 748, 755, review granted Sept. 11, 2019, S256671.)
We need not weigh in on the dispute in this opinion. Even assuming
section 1001.36 is retroactive, we agree with the Attorney General that remand in this
case would be futile because “the record shows that the trial court would not, in any
event, have found [Tooker] eligible for mental health diversion.”
Whether to place a defendant on diversion under section 1001.36 is left to the trial
court’s discretion. (People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053, review
granted Aug. 14, 2019, S256113.) In the sentencing context, courts have generally held
that a remand, where otherwise required for a trial court to exercise the discretion it was
unaware it had at the time of sentencing, is unnecessary “ ‘ “if the record shows that the
trial court would not have exercised its discretion even if it believed it could do so.” ’ ”
(People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) This principle has also been
applied in cases involving section 1001.36’s retroactive application. (Burns, supra,
38 Cal.App.5th at pp. 789–790; People v. Jefferson (2019) 38 Cal.App.5th 399, 408–
409.)11
11 Frahs concluded that a remand was appropriate because the case was “not yet
final on appeal and the record affirmatively disclose[d] that [the defendant] appear[ed] to
meet at least one of the threshold requirements (a diagnosed mental disorder).” (Frahs,
supra, 27 Cal.App.5th at p. 791; accord People v. Weaver, supra, 36 Cal.App.5th at
pp. 1121–1122.) These decisions did not address whether remand would be futile,
however, and we disagree with their statement of the standard used to determine when
remand is appropriate. (See People v. Jefferson, supra, 38 Cal.App.5th at p. 409.)

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According to the Attorney General, there are two reasons that remand would be
futile, arguments to which Tooker did not respond in his briefing. We disagree with the
Attorney General’s first argument but agree with the second.
The Attorney General first claims that the record shows the trial court would not
be “satisfied that the defendant will not pose an unreasonable risk of danger to public
safety, as defined in Section 1170.18, if treated in the community,” as required under
section 1001.36, subdivision (b)(1)(F). He argues that the court “expressly” determined
Tooker was a danger to the public by finding as an aggravating circumstance that Tooker
“engaged in violent conduct that indicates a serious danger to society” under California
Rules of Court, rule 4.421(b)(1). But an “unreasonable risk of danger to public safety”
under section 1170.18 is a higher standard than “a serious danger to society” under
rule 4.421(b)(1), because the former phrase is narrowly defined “as the likelihood a
defendant will commit a new violent felony within the meaning of section 667,
subdivision (e)(2)(C)(iv),” which in turn “ ‘enumerates a narrow list of super-strike
offenses such as murder, rape[,] and child molestation.’ ” (Burns, supra, 38 Cal.App.5th
at p. 789; see § 1170.18, subd. (c).) Moreover, under section 1001.36,
subdivision (b)(1)(F), a court must evaluate the defendant’s risk of dangerousness while
undergoing mental health treatment, whereas rule 4.421(b)(1) does not account for
measures that could be taken to reduce the defendant’s dangerousness. (See Burns, at p.
789.) Thus, the court’s finding that Tooker’s behavior indicated a serious danger to
society does not conclusively establish that it would find him ineligible for mental health
diversion.
We agree with the Attorney General’s second claim, however, that the record
establishes the trial court would not be “satisfied that the defendant’s mental disorder was
a significant factor in the commission of the charged offense[s]” under section 1001.36,
subdivision (b)(1)(B). The Attorney General points out that the court determined there
were no mitigating circumstances, specifically rejecting the probation report’s conclusion
that Tooker “was suffering from a mental or physical condition that significantly reduced
culpability for the crime[s]” under California Rules of Court, rule 4.423(b)(2). We

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recognize, as Tooker’s counsel observed at oral argument, that the issue whether a
defendant qualifies for pretrial diversion under section 1001.36 is not identical to the
issue whether a mitigating circumstance exists under rule 4.423(b)(2). And we recognize
that a court’s refusal to find this mitigating circumstance might not always render a
remand futile, such as when the court had limited information about the purported mental
disorder.
Here, however, the trial court heard considerable evidence about Tooker’s mental
health, including the experts’ reports assessing his competency and a defense expert’s
trial testimony about his brain injury. Under these circumstances, even assuming the
court would find that Tooker had a qualifying mental disorder under section 1001.36, we
cannot see how it could conclude that Tooker’s mental disorder constituted “a significant
factor in the commission of” the crimes—such that it could justify permitting him to
avoid criminal prosecution entirely by being placed on diversion—given its finding that
any mental disorder did not “significantly reduce[] culpability for the crime[s]”—such
that it did not justify more lenient treatment of Tooker at sentencing. As a result, we
conclude that a remand for the court to consider whether to place him on mental health
diversion would be futile.
III.
DISPOSITION
The judgment is affirmed.

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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.

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People v. Tooker A154181

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