People v. Ware CA4/2

Opinion

Filed 5/31/24 P. v. Ware CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E080791

v. (Super.Ct.No. FSB03904)

MARTIN WARE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. Reversed with directions.

John G. Derrick, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Felicity

Senoski and Elana Miller, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant Martin Ware appeals a trial court’s denial of his petition

for resentencing made pursuant to Penal Code section 1172.6.1 He contends the order

denying his petition must be reversed because the court issued an order to show cause

and then held a hearing on the merits and denied the petition in his absence, without a

waiver. The People argue that the court denied defendant’s petition at a prima facie

hearing; thus, his presence was not required. However, the People then concede the court

denied the petition based, in part, on its mistaken belief that the jury was not instructed on

natural and probable consequences; therefore, the matter should be remanded for another

prima facie hearing. We conclude that the court’s denial should be reversed and the

matter remanded for an evidentiary hearing.

PROCEDURAL BACKGROUND

A jury found defendant guilty of shooting at an occupied vehicle (§ 246, count 1),

two counts of kidnapping for robbery (§ 209, subd. (b), counts 2 & 3), one count of

assault with intent to commit rape (§ 220, count 6), two counts of kidnapping (§ 207,

subd. (a), counts 7 & 8), and two counts of attempted murder (§§ 664, 187, counts 9 &

10). The jury further found true the allegations that the attempted murders of which it

convicted defendant in counts 9 and 10 were committed willfully and with deliberation

and premeditation. The jury also found true various enhancement allegations, including

1 All further statutory references will be to the Penal Code unless otherwise noted. Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We will cite to section 1172.6 for ease of reference. 2 that defendant personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1))

and inflicted great bodily injury (§ 12022.7), and that a principal was armed during

commission of the offenses (§ 12022, subd. (a)(1)). A trial court sentenced defendant to

four consecutive life terms on the two attempted murder convictions and two kidnapping

for robbery convictions, plus a determinate term of 21 years four months on the other

convictions and enhancement findings.

On January 31, 2022, defendant filed a petition for resentencing pursuant to

section 1172.6. He checked the box stating an information was filed against him that

allowed the prosecution to proceed under a theory of felony murder, murder under the

natural and probable consequences doctrine or other theory under which malice is

imputed to a person based solely on that person’s participation in a crime, or attempted

murder under the natural and probable consequences doctrine. Defendant also checked

the boxes indicating he was found guilty of attempted murder following a trial and that he

could not presently be convicted of attempted murder because of the amendments to

sections 188 and 189.

On July 15, 2022, the court held a hearing on the petition.2 According to the

minute order from the hearing, both parties requested the matter be continued. Defense

counsel also requested an order to show cause (OSC) to be held at the next hearing, and

the People did not object. The court granted the request for an OSC, and the matter was

continued for a status conference on October 7, 2022.

2 The appellate record does not contain a reporter’s transcript of this hearing or the subsequent hearings on October 7, 2022 or November 18, 2022. 3 The minute order for the hearing on October 7, 2022, states, “Action came on for

Status Conference/OSC re petition for Resentencing Pursuant to PC1170.95.” The

People requested additional time to file a brief, and defense counsel did not object to a

continuance. The minute order also reflects the “[c]ourt note[d] ‘if[/]when a future date

is set for OSC hearing, Counsel will need to provide the court with the trail [sic]

transcripts.’”

The next hearing was a status conference held on November 18, 2022. The minute

order notes that the People turned over trial transcripts to the defense, minus one missing

volume, and that the defense request to continue the hearing was granted. The minute

order states that the People were to file a brief, and the defense was to file a response.

The court then set another status conference for February 3, 2023.

On January 6, 2023, the People filed an opposition to defendant’s petition for

resentencing, attaching a copy of the unpublished opinion in the prior case of People v.

Ware et al. (Aug. 14, 1998, E017603) [nonpub. opn.]. The People explained that some

portions of the trial transcripts “have not been located and may no longer exist” and that

the missing portions included the testimony of defendant and most of the defense

witnesses. The People then argued that defendant was ineligible for relief because he

was the principal actor in the attempted murders, and the jury found he had the intent to

kill. The People also asserted that the jury was given instructions on “Principals” and

“Aiding and Abetting,” but not on “Liability for Natural and Probable Consequences.” In

its conclusion, the People stated: “The procedural posture of this case is such that the

4 Court should view the filing on the Petitioner’s behalf as a motion where the defendant’s

petition makes [a] prima facie showing, via a checkbox petition, that he qualifies for

review under Penal Code sections 1170.95 and 117[2].6. The Court must therefore issue

an Order to Show Cause as a matter of course. However, beyond that, it should fail. [¶]

Based upon all circumstances here, Petitioner was a principal, and the evidence

demonstrated that he was not an aider and abettor, and the natural and probable

consequences doctrine did not apply to Petitioner.”

On February 3, 2023, defendant filed a reply to the People’s opposition, arguing

that his petition set forth a prima facie case for relief warranting the issuance of an OSC.

The court held a hearing on February 3, 2023, and at the outset, defense counsel

noted that he submitted a removal but had not heard from defendant.3 The prosecutor

stated the People’s position was that defendant failed to make a prima facie showing.

Defense counsel responded that he had filed a reply that morning, and, assuming the

allegations in the petition were true, defendant had properly checked all the boxes which

was “sufficient to issue warrants of the OSC [sic].” The prosecutor argued that defendant

was “ineligible on the face of the record” and that the jury instructions given at trial did

not include one on natural and probable consequences. The prosecutor then pointed to

the verdict forms showing the jury found defendant guilty of attempted murder and found

true the allegation that the crimes were “willful, deliberate, and premeditated.” Defense

3 Defense counsel appeared to be referring to a request for defendant to be brought to court. 5 counsel responded that the petition made a prima facie case and argued that the court

should issue an OSC.

The court agreed with the People that the record of conviction demonstrated that

“natural and probable consequences was not given in the instructions as a basis for the

defendant’s liability.” It further noted that the true findings on the “willful, deliberate,

and premeditation” allegation and the personal infliction of great bodily injury and use of

a firearm allegations “ma[d]e it clear that natural and probable consequences was not a

basis for the defendant’s conviction.” The court therefore concluded “the record of

conviction demonstrates he’s not entitled to removal [sic] under 1172.6” and denied the

petition for resentencing.

DISCUSSION

The Matter Should Be Remanded For an Evidentiary Hearing

Defendant contends the order denying his petition must be reversed because the

court issued an OSC and held a hearing on the merits on February 3, 2023, and denied the

petition in his absence, without a waiver. The People argue that the court denied

defendant’s petition at a prima facie hearing; thus, his presence was not required.

However, the People then concede the court denied the petition based, in part, on its

mistaken belief that the jury was not instructed on natural and probable consequences;

thus, the matter should be remanded for a new prima facie hearing. We conclude the

matter should be remanded for an evidentiary hearing, to be held with defendant present,

absent a valid waiver.

6 A. Relevant Law

Senate Bill No. 1437, effective January 1, 2019, was enacted “to amend the felony

murder rule and the natural and probable consequences doctrine, as it relates to murder,

to ensure that murder liability is not imposed on a person who is not the actual killer, did

not act with the intent to kill, or was not a major participant in the underlying felony who

acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f);

see People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill No. 1437 also

created a procedural mechanism for those convicted under the former law to seek

retroactive relief under the law as amended. (Stats. 2018, ch. 1015; Lewis, at p. 957.)

Senate Bill No. 775 clarified that the provisions of section 1172.6 apply to attempted

murder, as well as murder. (People v. Coley (2022) 77 Cal.App.5th 539, 548; § 1172.6,

subd. (a).)

Under section 1172.6, the relief process begins with the filing of a petition

containing a declaration that all requirements for eligibility are met (§ 1172.6

subd. (b)(1)(A)), “including that ‘[t]he petitioner could not presently be convicted of

murder or attempted murder because of changes to [Penal Code] Section 188 or 189

made effective January 1, 2019,’ the effective date of Senate Bill [No.] 1437 (§ 1172.6,

subd. (a)(3)).” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) If the petition

complies with the requirements of section 1172.6, subdivision (b)(1), “the court shall

hold a hearing to determine whether the petitioner has made a prime facie case for relief.”

(§ 1172.6, subd. (c).) Where a petitioner has made the requisite prima facie showing that

7 he is entitled to relief, the court must issue an OSC and hold an evidentiary hearing to

determine whether to vacate the murder or attempted murder conviction and resentence

the petitioner on any remaining counts. (§ 1172.6, subds. (c) & (d)(1).)

At the prima facie stage, the court may deny a petition only if the petitioner is

ineligible for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 966.) In other

words, the petition and the record of conviction must “establish conclusively that the

defendant is ineligible for relief.” (Strong, supra, 13 Cal.5th at p. 708.)

B. The People Concede the Jury Was Instructed on Natural and Probable

Consequences as a Basis of Liability

The People concede that the jury was instructed on natural and probable

consequences as a basis of liability and that the court erred in denying the petition, in

part, based on the impression that the jury was not so instructed. The People explain that,

at the February 3, 2023 hearing, the parties and the court operated under the mistaken

impression that the jury was not instructed on natural and probable consequences as a

basis of liability, presumably because the court did not give the instruction (CALJIC No.

3.02) as part of the main packet of instructions; however, it subsequently provided the

instruction in response to a question the jury asked during deliberations. Defendant

agrees that the jury was instructed on the natural and probable consequences doctrine. In

light of the fact that the jury was given a natural and probable consequences instruction,

the record of conviction does not preclude the possibility that defendant was convicted

under this now-invalid theory, and the trial court therefore erred in summarily denying

8 the petition. (See People v. Offley (2020) 48 Cal.App.5th 588, 599 [trial court instructed

the jury on natural and probable consequences, and the appellate court found it could not

rule out the possibility the jury relied on such doctrine in convicting the defendant].)

We note the parties agree that the record reflects the court granted defendant’s

request for an OSC on July 15, 2022, without objection by the People. The People now

claim the court’s OSC order was “tentative” or, in the alternative, “rescinded” at the

February 3, 2023 hearing, and they concede the matter should be remanded, for another

prima facie hearing. We acknowledge the record is confusing as to the procedural

posture of the hearing on February 3, 2023. However, given that the jury was instructed

on the natural and probable consequences doctrine of culpability and that the court had

ordered an OSC early in the proceedings, we conclude the better manner of proceeding

below would be to hold an evidentiary hearing for the parties to present and the trial court

to consider the evidence in determining whether defendant is entitled to relief.4 There is

nothing to establish defendant’s ineligibility for relief as a matter of law. The People do

not dispute that a petitioner has a right to be present at an evidentiary hearing under

section 1172.6, subdivision (d), and that there was no waiver of that right in this case.

(See People v. Basler (2022) 80 Cal.App.5th 46, 59.)

4 We note that, in the People’s brief opposing defendant’s resentencing petition, the People concluded: “The procedural posture of this case is such that the Court should view the filing on the Petitioner’s behalf as a motion where the defendant’s petition makes prima facie showing, via a checkbox petition, that he qualifies for review under Penal Code sections 1170.95 and 117[2].6. The Court must therefore issue an Order to Show Cause as a matter of course. However, beyond that, it should fail.” (Italics added.) 9 Based on the foregoing, we reverse the court’s order denying defendant’s petition

and remand with directions to issue an order to show cause and hold an evidentiary

hearing with defendant present, absent a valid waiver. (§ 1172.6, subds. (c) & (d); see

People v. Wilson (2023) 14 Cal.5th 839, 869.)

DISPOSITION

The order denying defendant’s petition is reversed. The matter is remanded with

directions to issue an order to show cause under section 1172.6, subdivision (c), and to

hold a hearing in accordance with section 1172.6, subdivision (d). We express no

opinion on whether defendant is entitled to relief following the hearing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

RAMIREZ P. J.

MENETREZ J.