People v. Ware CA1/4

Filed 6/17/22 P. v. Ware CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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),