People v. Ware CA1/4

Filed 6/17/22 P. v. Ware CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A162314
v.
CHRISTOPHER SAMUEL WARE, (Alameda County
Super. Ct. No. 20-CR-012239A)
Defendant and Appellant.
A jury convicted defendant Christopher Samuel Ware of two counts of
second degree robbery, identity theft, and several gun-related crimes, and
found true allegations that he personally used a firearm in the commission of
a robbery. The trial court imposed the upper term sentences for one count of
second degree robbery and the firearm enhancement. Ware contends that we
should remand for resentencing due to recent statutory amendments to Penal
Code section 1170, subdivision (b),1 that provide presumptions in favor of the
lower or middle terms of imprisonment and limit the trial court’s discretion
in relying on aggravating circumstances to impose the upper term.
We conclude that remand for resentencing is warranted to allow the
trial court to exercise its new sentencing discretion under section 1170.
1 All citations are to the Penal Code unless otherwise indicated.
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Accordingly, we remand for resentencing, and in all other respects we affirm
the judgment.
BACKGROUND
A. Factual and Procedural History
In July 2020, Ware robbed a 75-year-old woman at gunpoint in front of
the woman’s house. Ware took the woman’s purse, which contained a credit
card that someone used shortly after the robbery to make a $500 purchase.
Two weeks later, Ware approached a woman walking to her car in a
store parking lot and grabbed the woman’s purse, causing her to fall to the
ground. Ware then ran off with the purse. A warrant was issued for Ware’s
arrest that same day.
About a week later, police arrested Ware after they spotted him
entering a vehicle. A search of the vehicle revealed a loaded handgun.
In November 2020, Ware was charged by consolidated information with
two counts of second degree robbery (§ 211), one with special allegations that
Ware personally used a firearm in the commission of the offense (§§ 12022.5,
subd. (a), 12022.53, subd. (b)); identity theft (§ 530.5, subd. (a)); possession of
a firearm by a felon (§ 29800, subd. (a)(1)); carrying a loaded firearm on one’s
person in a city (§ 25850, subd. (a)) with a special allegation that he was not
in lawful possession of the firearm as a prohibited person (§ 25850,
subd. (c)(4)); carrying a concealed firearm within a vehicle (§ 25400,
subd. (a)(1)), again with a special allegation that he was not in lawful
possession of the firearm (§ 25850, subd. (c)(4)); and possession of
ammunition by a prohibited person (§ 25400, subd. (c)(4)).
Prior to trial, Ware stipulated that he was previously convicted of two
felonies. The first conviction occurred in February 2017 for burglary (§ 459),
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and the second was in October 2019 for assault upon the person of another
likely to produce great bodily injury (§ 245, subd. (a)(4)).
B. Ware’s Sentencing
In February 2021, the jury found Ware guilty as charged on all counts
and found the firearm allegations true.
At the sentencing hearing the following month, the trial court stated
that there were “so many factors in aggravation” in this case and no
mitigating factors that “outweigh” the aggravating factors. The aggravating
factors the trial court noted included “the nature of the offense, the planning,
sophistication, following people, waiting for them, you know, the
vulnerability of the victims, victims that can’t really fight back.” The trial
court further found that Ware’s past performance on probation was
“unsatisfactory,” noting that he was on probation “for a broken down robbery
where [he] punched some man” and that he “had some misdemeanor conduct”
and “some DV stuff as a probation violation.” The trial court concluded that
Ware did not “learn [his] lesson” and made “mistake after mistake,” and thus
it was “not just going to give [him] a slap on the wrist.”
For those reasons, the trial court sentenced Ware to the upper term of
five years on the first count of second degree robbery and to the upper term of
10 years for the firearm enhancement for that count. As required by section
1170.1, subdivision (a), the court imposed one-third of the midterm for counts
two, three, and four, for a total of two years four months for those counts, to
be served consecutively with the 15-year term for count one. The court
stayed the sentences on the rest of the counts pursuant to section 654.
DISCUSSION
Ware argues that he is entitled to resentencing because Senate Bill
No. 567 (2021–2022 Reg. Sess.) (Senate Bill No. 567) recently amended
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section 1170, subdivision (b), to limit the trial court’s discretion to impose an
upper term of imprisonment for a defendant’s felony conviction. (Stats. 2021,
ch. 731, § 1.3)
At the time of Ware’s sentencing, section 1170, subdivision (b) provided
that, “[w]hen a judgment of imprisonment [was] to be imposed and the
statute specifie[d] three possible terms, the choice of the appropriate term . . .
rest[ed] within the sound discretion of the court.” (Former § 1170, subd. (b).)
Accordingly, the trial court exercised its discretion by imposing the upper
term sentence based on Ware’s criminal history and its finding of several
aggravating factors.
However, effective January 1, 2022, Senate Bill No. 567 amended
section 1170, subdivision (b), to prohibit a trial court from imposing a
sentence exceeding the middle term unless “there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term” and the facts underlying those
circumstances have either been stipulated to by the defendant or been “found
true beyond a reasonable doubt” by the jury or judge at trial. (§ 1170,
subd. (b)(2).)
In a supplemental brief, Ware further contends that a remand for
resentencing is warranted because Assembly Bill No. 124 (2021–2022 Reg.
Sess.) (Assembly Bill No. 124) amended section 1170, subdivision (b)(6), to
require trial courts to impose the lower term sentence where a defendant’s
“youth” contributed to his or her commission of the offense. (Stats. 2021,
ch. 695, § 5.) “Youth” is defined as a person under 26 years old on the date
the offense was committed. (§§ 1016.7, 1170, subd. (b)(6).) The sentencing
court only overcomes this presumption where it finds that the aggravating
circumstances “outweighs” the mitigating circumstances such that
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“imposition of the lower term would be contrary to the interests of justice.”
(§ 1170, subd. (b)(6).)
We agree with the parties’ conclusion that those amendments apply
retroactively to this case because judgment was not final at the time the
amendments became effective on January 1, 2022. (In re Estrada (1965) 63
Cal.2d 740, 744–745 [absent evidence of contrary legislative intent,
ameliorative criminal statutes apply to all cases not final when the statute
takes effect]; see also People v. Valenzuela (2018) 23 Cal.App.5th 82, 87–88
[amendments granting court the discretion to strike formerly mandatory
firearm enhancements apply retroactively to non-final cases].)
The Attorney General argues, however, that remand for resentencing is
not required. According to him, remand is unnecessary because the trial
court, in imposing the upper term sentences, relied on two prior felony
convictions to which Ware stipulated. The Attorney General also points out
that the trial court properly relied on the probation report for the fact that
Ware’s performance on probation was “unsatisfactory.” (See People v. Towne
(2008) 44 Cal.4th 63, 81–82.)
Remand for resentencing is required in this case “unless the record
‘clearly indicate[s]’ that the trial court would have reached the same
conclusion ‘even if it had been aware that it had such discretion.’ ” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) This is because defendants are
“ ‘entitled to sentencing decisions made in the exercise of the “informed
discretion” of the sentencing court.’ ” (Ibid.) A court that is not aware of the
scope of its discretionary powers cannot exercise that “informed discretion”
any more than a court whose sentence may have been based on
misinformation regarding a material aspect of the defendant’s record. (Ibid.)
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Here, the record does not clearly indicate that the trial court would
have imposed the upper term sentences despite the amendments to
section 1170, subdivision (b). Although the trial court discussed Ware’s
criminal history and his probation performance, it also mentioned several
other aggravating circumstances, noting that there are “so many” factors in
aggravation related to his more recent crimes. The record does not indicate
that Ware stipulated to the facts underlying those aggravating circumstances
or that the jury or judge at trial found those facts true beyond a reasonable
doubt. The trial court stated it was selecting the upper term “for the reasons
. . . stated” and did not expressly exclude any of the improper aggravating
circumstances. We cannot discern from this record whether the trial court
would have found a departure from the presumptive middle term to be
justified based solely on Ware’s criminal history.
Moreover, the record indicates that Ware was a youth, under the age of
26 years old, when he committed the instant crimes. The trial court appears
to have not considered this fact in making its sentencing decisions, and thus
Ware’s upper term sentences should be vacated on this basis alone. (See
People v. Flores (2022) 73 Cal.App.5th 1032, 1039.)
The cases the Attorney General cites as support for his argument are
distinguishable. Cunningham v. California (2007) 549 U.S. 270 held that a
prior version of section 1170, subdivision (b), violated a defendant’s right to a
jury trial under the Sixth Amendment to the federal Constitution by
assigning to the trial judge, rather than the jury, the authority to make the
factual findings that expose a defendant to a greater potential sentence than
the “statutory maximum.” (Id. at pp. 277, 281, 293.) Former section 1170
provided that the trial court is to impose the middle term, “unless there are
circumstances in aggravation or mitigation of the crime.” (Id. at p. 277.) The
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court concluded that under that version of section 1170, the middle term was
the relevant “statutory maximum” since it was based solely on the facts
reflected in the jury verdict or admitted by the defendant. (Id. at pp. 283,
293.)
After Cunningham was decided, our high court in People v. Black
(2007) 41 Cal.4th 799 held that the presence of one aggravating circumstance
renders it constitutional under the Sixth Amendment for the trial court to
impose an upper term sentence under former section 1170, subdivision (b).
(Id. at p. 815.) The court reasoned that under former section 1170,
subdivision (b), a single aggravating circumstance established in accordance
with the constitutional jury requirements is legally sufficient to make the
defendant eligible for the upper term, and thus additional improper
aggravating circumstances do not expose the defendant to a greater potential
sentence. (Id. at pp. 813, 815.)
The issue in the present case is not the same as the defendant’s Sixth
Amendment challenge in Black. In that case, the trial court properly
exercised its discretion in determining the sentence, and the question was
whether the facts underlying its decision met the constitutional jury
requirements set forth in Cunningham. Senate Bill No. 567 has changed the
scope of the trial court’s discretion by requiring the aggravating
circumstances the trial court relies on to be stipulated to or found true by a
jury or judge trial, and Senate Bill No. 567 and Assembly Bill No. 124 also
change the framework within which the trial court exercises its discretion by
specifying a presumptive sentence. Thus, Gutierrez applies, and remand for
resentencing is required based on the record before us. We express no
opinion as to how the trial court should exercise its discretion on remand.
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DISPOSITION
This matter is remanded for resentencing under Senate Bill No. 567
and Assembly Bill No. 124. In all other respects, the judgment is affirmed.
NADLER, J.*
WE CONCUR:
POLLAK, P. J.
STREETER, J.
*Judge of the Sonoma County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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