Filed 7/18/24 P. v. Ware CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

LEO NORVELL WARE,

Defendant and Appellant.

 B332698

 (Los Angeles County

 Super. Ct. No. NA064251)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Chestopher L. Taylor, Judge. Reversed with 

instructions. 

Miriam K. Billington, 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, Assistant 

Attorney General, Noah P. Hill and Steven E. Mercer, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

On appeal, the parties agree that the trial court improperly 

concluded it lacked jurisdiction to resentence defendant Leo 

Norvell Ware under Penal Code section 1172.1.1 We agree, 

reverse, and remand for resentencing. 

BACKGROUND2

A jury convicted defendant of shooting at an inhabited 

dwelling, discharging a firearm in public, and two counts of 

possession of a firearm by a felon or an addict. In 2006, the trial 

court sentenced defendant to an aggregate term of 70 years to 

life, which included 20 years for four section 667, subdivision 

(a)(1) priors.3

In 2021, defendant filed a pro se petition for resentencing 

pursuant to section 1171.1. The court appointed counsel for 

defendant. The People, represented by a deputy district attorney, 

requested the court strike the section 667, subdivision (a)(1) 

enhancements. The People referenced section 1172.1, and the 

1 Undesignated statutory citations are to the Penal Code. 

2 We resolve this case by a memorandum opinion pursuant 

to California Standards of Judicial Administration, standard 8.1. 

Because resentencing is required, defendant’s challenge to his 

custody credits is premature and we do not consider it. 

3 Section 667, subdivision (a)(1) provides: “A person 

convicted of a serious felony who previously has been convicted of 

a serious felony in this state or of any offense committed in 

another jurisdiction that includes all of the elements of any 

serious felony, shall receive, in addition to the sentence imposed 

by the court for the present offense, a five-year enhancement for 

each such prior conviction on charges brought and tried 

separately. The terms of the present offense and each 

enhancement shall run consecutively.” 
3

trial court recognized that the prosecutor’s motion was pursuant 

to section 1172.1. Defendant’s counsel argued that under that 

statute the trial court could fully resentence defendant. 

Ultimately, the trial court struck the four section 667, 

subdivision (a)(1) enhancements thus reducing defendant’s 

aggregate sentence to 50 years to life. The trial court rejected 

defendant’s request for a full resentencing because it believed it 

lacked jurisdiction to resentence defendant.

DISCUSSION

Although defendant’s initial motion was brought under 

section 1171.1,

4 the prosecutor later brought a motion pursuant 

to section 1172.1. Section 1172.1 allows a district attorney 

(among others) to recommend the court recall the sentence and 

resentence the defendants “in the same manner as if they had not 

previously been sentenced . . . .” (§ 1172.1, subd. (a)(1); People v. 

Vaesau (2023) 94 Cal.App.5th 132, 138, 144.)5 Because the 

4 Senate Bill No. 483 added section 1171.1 to the Penal 

Code, which was subsequently renumbered without substantive 

change as section 1172.75. (Stats. 2022, ch. 58, § 12, eff. June 30, 

2022.) Section 1172.75 provides: “Any sentence enhancement 

that was imposed prior to January 1, 2020, pursuant to 

subdivision (b) of Section 667.5 [a prison prior], except for any 

enhancement imposed for a prior conviction for a sexually violent 

offense . . . is legally invalid.” (§ 1172.75, subd. (a); People v. 

Monroe (2022) 85 Cal.App.5th 393, 399.) 

5 “ ‘Assembly Bill No. 1540 (2021–2022 Reg. Sess.) (Stats. 

2021, ch. 719, §§ 1–7) (Assembly Bill 1540) came into effect on 

January 1, 2022, and moved the recall and resentencing 

provisions of former section 1170(d)(1) to new section 1170.03.’

[Citation.] Effective June 30, 2022, section 1170.03 was 

renumbered as section 1172.1 with no change in text.
4

district attorney recommended resentencing, the trial court had 

jurisdiction to recall the sentence and resentence the defendant.

(See Vaesau, supra, at p. 148 [once prosecutor makes 

resentencing request “the court has jurisdiction to resentence the 

defendant if it chooses to do so”].) For these reasons, we agree 

with the parties that the trial court erred in concluding that it 

lacked such jurisdiction. 

DISPOSITION

The judgment is reversed insofar as it imposes a 50-year-tolife sentence. The case is remanded for resentencing.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J. WEINGART, J.

(Stats. 2022, ch. 58, § 9.)” (People v. Pierce (2023) 88 Cal.App.5th 

1074, 1078.)