People v. Tooks CA2/8 ( 2024 )

Filed 5/17/24 P. v. Tooks CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B322885
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA114939
v.
OTIE TOOKS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James D. Otto, Judge. Affirmed and
remanded with instructions.
Susan S. Bauguess, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Otie Tooks appeals his conviction for willful, deliberate,
and premeditated attempted murder and criminal threats,
arguing substantial evidence supports neither. He also argues
his case must be remanded to allow the trial court to exercise its
discretion and consider imposing a lesser enhancement under
section 12022.53. We affirm, but remand for the trial court to
amend its July 7, 2022 minute order to reflect its oral
pronouncement striking Tooks’s prior strike convictions.
Citations are to the Penal Code.
I
We recount the factual and procedural background in the
light favorable to the verdict.
Virginia Saldonid and Justin Sauer lived in an RV parked
on Paramount Boulevard in Long Beach. A woman Sauer helped
with her car introduced Saldonid and Sauer to Tooks who was
also living in an RV parked on the same street. Sauer and
Saldonid knew Tooks as “Nut” or “Nut Nut.” Sauer helped Tooks
by moving his RV across the street a few times to avoid street
sweeping because Tooks’s RV was not running. Sauer had two
generators, one that worked well and one that did not.
Eventually, Sauer told Tooks he could plug into Sauer’s “good”
generator if he helped by putting gas into the generator.
Saldonid and Sauer were on friendly terms with Tooks
during this time. Tooks would bring extra food over to their
RV. Sauer hung out with him a few times. Saldonid said she
saw Tooks every day, though she rarely spoke to him.
One night in July 2020, after Sauer and Saldonid had
known Tooks for about four to six weeks, Tooks’s RV was on the
opposite side of the street from theirs, at a slight diagonal. The
good generator was connected to Tooks’s RV. At about 2 a.m.,
2
Sauer grew annoyed with the poor performance of the other
generator and decided to take the good generator back. He went
across the street and knocked on the door to Tooks’s RV. Tooks
did not want Sauer to take the generator back because he had
just put gas in it and was using it. Sauer told him it was his
generator, and he was taking it. He told Tooks he would pay him
for the gas. At trial, Sauer testified he took the generator, and
Tooks punched him in the mouth. Sauer took the generator
across the street and put it in the back of his truck and then
returned to his own RV where he told Saldonid what had
happened.
Saldonid testified she awoke from a nightmare about 3 a.m.
and realized Sauer was not in the RV. She went outside and saw
Sauer running down the street and bleeding from his forehead.
He told Saldonid what had happened. Tooks and Sauer
continued yelling at each other across the street from their
respective RVs. Tooks yelled that he was calling his homeboys,
that they were on their way, and to just wait until they got there.
Tooks had his phone in his hand. Saldonid testified that she was
terrified; she did not know what Tooks was going to do, but he
was very angry and she was terrified for both herself and Sauer.
Sauer told Saldonid to get gas and take it and money to
Tooks and offer them to him. Saldonid did so. She testified that
she was desperately trying to defuse the situation. Tooks told
her to “shut the fuck up, bitch.” She kept saying she was sorry
and asked him to take the gas or the money, but Tooks refused.
He was very angry. He said, “If you want to get stupid, then you
will get harmed too.”
Saldonid returned to the RV where Sauer was waiting. She
told Sauer she wanted to leave because she believed gang
3
members were coming, but Sauer did not want to give up the
generator. Sauer told Saldonid to park her car a distance behind
their RV so she could watch it while he went to call the police.
Saldonid did as Sauer said. After a while, she saw a white
SUV pull up, and Tooks got in the front passenger side door. The
SUV stopped across the street from Saldonid’s car, and Tooks got
out. Tooks approached the passenger side of Saldonid’s car
carrying something squarish in his hand. He said, “Don’t back
up, bitch. Don’t you move.” Saldonid was terrified and could not
get her car in gear. Saldonid finally got her car in drive and as
she did, Tooks shot the passenger side door of her car. Saldonid
drove down Paramount toward the police station.
Sauer in the meantime had started toward the gas station
and realized he did not have any money. He instead drove to the
nearby RV of their friends Michelle Weeden and Johnny to use
their phone. He entered their RV, sat on a couch against a wall
across from the door, told them what was happening, and asked
for a cigarette. Sergio, a mutual acquaintance, then came to the
door and told them about his brother getting killed the night
before. Sergio asked Sauer when he was going to fix his
generator.
Sauer then heard someone yell, “Get the fuck out of the
way!” He recognized it as Tooks’s voice, though he could not
initially see him because he was behind Sergio. Tooks entered
the RV and shot Sauer four times from about three feet away.
The bullets hit Sauer’s arm, leg, and lower torso. Tooks fled the
RV and got back in the white SUV.
Sauer went to his truck, not believing he had time to wait
for an ambulance. He could not get the keys in the ignition,
however, and asked Sergio to drive him. Sergio called 911 on the
4
way, and Sauer exclaimed on the call that his neighbor shot
him. Sergio drove Sauer to a hospital down the road, though he
needed to be transferred to another hospital where he spent nine
days.
When Saldonid did not see Sauer at the gas station she
kept driving, planning to go to the police station farther down the
road. She saw the white SUV behind her. When she saw the
white SUV turn off, she believed they had seen Sauer or his
truck, so she made a U-turn and followed. When she caught up
to the white SUV, it was double-parked next to Sauer’s truck
outside their friends’ RV. Saldonid heard four gunshots and a
woman scream. She saw Tooks run out of the RV and get in the
passenger side front door of the white SUV, which drove off.
Saldonid then drove back to the gas station and called 911 to
report that Sauer had been shot by their neighbor, “Nut.” While
she was on the phone with the 911 operator, she saw Sauer’s
truck drive by.
Officers responded to the gas station where Saldonid was,
the hospital, the locations of the shootings, and Tooks’s RV. At
the gas station, officers spoke to Saldonid who said Sauer had
gotten into an altercation with their neighbor, “Nut” or “Nut Nut”
and gave a description of him and his RV. The police ran the
plates of his RV and it came back as belonging to Otie Tooks.
Officers found mail belonging to Tooks inside the RV.
An officer unconnected to the investigation showed
Saldonid a six-pack containing Tooks’s picture in the number
three slot. At first, Saldonid said she did not see the shooter.
The officer then asked if she saw anyone related to the crime.
Saldonid confirmed she did not, but said number three looked
closest. The officer asked why she said that. Saldonid replied
5
something about the roundness of his head, but again confirmed
she did not see the shooter. At the officer’s prompting, Saldonid
then wrote a statement that she was sure the other five were not
the shooter, but the eyes and shape of the head of number three
were similar to the shooter’s. The officer then asked how sure
she was number three was involved, and Saldonid said she was
not absolutely sure, but she was sure the other five were not the
shooter.
Another officer unconnected to the investigation showed
Sauer the same six-pack several weeks later once he was out of
the hospital. Sauer stated it was more difficult than he thought
to identify someone. He pointed at a few of the pictures. The
officer told him to focus on the eyes and the nose. When Sauer
indicated he thought the person in number three was too fat, the
officer responded he seemed more medium and reminded Sauer
the pictures might not look exactly the same as the person and
that weight can change. The officer told Sauer to take his time
and that he did not need to have a hundred percent confidence
level. Eventually, Sauer selected the person in slot number
three, saying “I hope I’m doing the right thing” and that he was
“pretty sure.” The detective asked if his confidence level was
high several times, and Sauer responded variously, “It’s one of
the two, but I think it’s him,” “I think so,” and “Uh-huh.” The
detective wrote on the form that the person in number three was
the person that shot the victim and that Sauer’s confidence level
was high.
Saldonid later sent one of the detectives a photo she found
on Facebook of the person she knew as Nut. She also sent the
detective a photo of a magazine cover showing an address label
that Nut had given Sauer in her presence. She told the police
6
that Sauer thought he saw Tooks 40 to 50 times a day, and she
had to reassure him it was not Tooks. Saldonid and Sauer moved
out of state after the shooting.
At the preliminary hearing and at trial both Saldonid and
Sauer identified Tooks in court as the shooter.
At trial, the jury convicted Tooks of the willful, deliberate,
and premeditated attempted murder of Sauer and found true
that he personally inflicted great bodily injury on Sauer,
personally used a handgun, personally and intentionally
discharged a handgun, and personally and intentionally
discharged a handgun causing great bodily injury to Sauer, under
section 12022.53, subdivisions (a), (b), (c), and (d). The jury also
convicted Tooks of making criminal threats to Saldonid. In a
bifurcated bench proceeding, the judge found Tooks had three
convictions constituting prior strikes.
At sentencing, the trial court struck the enhancement for
the prior strikes and imposed the mid-term sentence on the
willful, deliberate, and premeditated attempted murder and
criminal threat charges, with those sentences to run
concurrently. The trial court added 25 years for the firearm
enhancement under subsection (d), noting that he would likely
not have struck the prior strikes enhancement if he were not
imposing the firearm enhancement. In total, the trial court
sentenced Tooks to 32 years to life in state prison.
Tooks appeals.
II
Tooks argues substantial evidence does not support his
willful, deliberate, and premeditated attempted murder or
criminal threats convictions. He further argues the trial court
was unaware of and therefore did not properly exercise its
7
discretion to strike his firearm enhancement and impose a lower
sentence. Finally, he argues the July 7, 2022 minute order
incorrectly states that court stayed rather than struck the prior
strikes enhancement. Only his final argument has merit. We
affirm but remand with directions for the trial court to amend its
July 7, 2022 minute order to reflect its oral pronouncement
striking the prior strikes enhancement.
A
Tooks argues that substantial evidence did not support the
identification of him as the shooter. He is mistaken.
In undertaking to review the record for substantial
evidence, we review the record as a whole, considering the
evidence and the inferences to be drawn in the light most
favorable to the verdict. (People v. Manibusan (2013) 58 Cal.4th
40, 87 (Manibusan).) We determine neither credibility issues nor
evidentiary conflicts. (Ibid.)
Tooks claims Saldonid’s and Sauer’s out-of-court
identifications were so weak as to constitute insufficient
evidence. He emphasizes how long each took to select his picture
from the six-pack and points to what he says is evidence of
steering by the administering officers. He points to his expert’s
evidence that if it takes longer than 25 seconds to make an
identification, the identifier is not recognizing, but finding the
best match as well as the expert’s testimony about administrator
and post-event influence. However, the jury heard all of the
evidence and was able to weigh it. Moreover, Saldonid’s and
Sauer’s six-pack identifications were not the only evidence that
went towards the identification of Tooks as the shooter. Saldonid
and Sauer each identified Tooks to police that night, they each
heard his voice, they identified Tooks in court, and Tooks was in
8
an altercation with Sauer earlier in the evening. The jury and we
are able to consider all of the evidence in determining if the
prosecutor met her burden.
Tooks argues there were many discrepancies and reasons
not to believe the accounts Saldonid and Sauer gave of the events
of that night. He points to how far away Tooks was from
Saldonid when he got into the white SUV. He points out that at
one point Sauer said the shooter was five foot six inches to five
foot eight inches, when Tooks is six foot two inches. He states
that Sauer was high that night. He points out that despite seeing
Tooks every day for weeks, neither Saldonid nor Sauer were able
to immediately pick him out of the six-pack.
Defense counsel made all of these arguments to the jury. It
is not our role to reweigh the credibility of the witnesses or
determine how we would decide the case. (Manibusan, supra, 58
Cal.4th at p. 87.)
Substantial evidence supported the jury’s conviction.
B
Tooks argues substantial evidence did not support his
conviction of criminal threats to Saldonid because he did not
threaten her.
The five elements of a criminal threat are: 1) the defendant
willfully threatened to commit a crime that would result in death
or great bodily injury to another person; 2) the defendant
specifically intended that the statement be taken as a threat even
if the defendant did not intend to carry it out; 3) the threat was,
on its face and under the circumstances under which it was
made, 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; 4) the threat
9
actually caused the person threatened to be in sustained fear for
his or her own safety or his or her immediate family’s safety; and
5) the threatened person’s fear was reasonable under the
circumstances. (In re George T. (2004) 33 Cal.4th 620, 630.)
We again apply substantial evidence review. (Manibusan,
supra, 58 Cal.4th at p. 87.)
The prosecutor argued the jurors could convict Tooks if
they all agreed he had threatened her during either of two
interactions. The first was when Saldonid went over to Tooks’s
RV to offer him money or gas and he told her to “shut the fuck up,
bitch,” that he had called his homeboys, and that if she wanted to
get stupid, she would get harmed, too. The second was when
Tooks approached Saldonid in her car and said, “Don’t back up,
bitch. Don’t you move.”
Tooks argues the first interaction did not constitute a
criminal threat. He points out that Saldonid testified she “didn’t
know what that meant” that he had called his homeboys and
“really didn’t think anything. [She] didn’t know what it was.”
Saldonid did use these words in testifying, but the rest of her
testimony made clear she believed men were coming to beat up or
kill her and Sauer and she feared for their lives. She may not
have known exactly what Tooks meant, but she got the gist and
was terrified. Tooks further argues the threat was not
immediate, but Saldonid took it as such. She begged Sauer to
leave the area.
Tooks next argues his statement that if Saldonid wanted to
get stupid she would get harmed too was too conditional to be a
threat. Accepting Tooks’s argument as true for purposes of this
discussion, this statement still qualifies as a criminal threat
against Saldonid. For purposes of a criminal threat, immediate
10
family includes a person who regularly lives in the threatened
person’s household. (CALCRIM No. 1300.) Even if the threat
was conditional as to Saldonid, it was not as to Sauer, who was a
member of Saldonid’s household. Therefore, the jury could
properly rely on this statement in convicting Tooks of a criminal
threat against Saldonid.
Tooks also faults Saldonid for not remembering this threat
until prompted by the prosecutor. Saldonid admitted on the
stand she was nervous about testifying and was doing so two
years after the event. The jury was free to take into account her
lapse of memory in judging her credibility.
Tooks argues the second interaction did not constitute a
threat because his words did not threaten physical harm.
However, he spoke as he approached with gun in hand. Then he
used the gun to shoot at Saldonid’s car. The jury could consider
this potent context. (People v. Mendoza (1997) 59 Cal.App.4th
1333, 1341 [words to be interpreted in light of surrounding
circumstances].)
Substantial evidence supported the jury’s conviction on this
count.
C
Tooks argues the trial court was unaware of its discretion
to impose a lesser firearm enhancement under section 12022.53
and therefore could not have exercised its discretion properly.
This argument is meritless.
Tooks points to People v. Tirado (2022) 12 Cal.5th 688, in
which the Supreme Court resolved a split among the Courts of
Appeal, holding a trial court may impose a lesser uncharged
firearm enhancement that has been proved. (Id. at pp. 694, 697,
700.) The Supreme Court decided Tirado five months before
11
sentencing in this case, and neither the court nor the parties
mentioned it. Tooks argues, therefore, the trial court was
unlikely unaware of this new authority.
As the prosecutor notes, however, Tirado is inapplicable.
Here, there were not uncharged lesser firearm charges. The
prosecutor had charged the lesser enhancements, and they had
all been found true. Thus, there is no reason to think the court
was unaware of its discretion to impose a lesser enhancement.
And, given the court’s comment that it would likely not have
stricken the prior strikes enhancement if it were not imposing
the firearm enhancement, it seems the trial court thought this
was a proper enhancement. We see no reason to remand under
these circumstances.
D
Finally, Tooks argues the July 7, 2022 minute order states
that the trial court stayed the prior strikes enhancement though
the transcript reflects that the court struck it. The prosecutor
agrees the minute order should be amended. So do we. We
remand with instructions for the trial court to do so.
DISPOSITION
We affirm the judgment and remand for the trial court to
amend its July 7, 2022 minute order to reflect that the court
struck the prior strikes enhancement.
WILEY, J.
We concur:
GRIMES, Acting P. J. VIRAMONTES, J.
12