1

Filed 5/30/24 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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,

v.

CHRISTOPHER SAMUEL WARE,

Defendant and Appellant.

A168221

(Alameda County 

Super. Ct.No. 20-CR012239A)

Defendant Christopher Samuel Ware appeals for the second time from 

his sentence of seventeen years, four months for two robbery convictions. By

unpublished decision in People v. Ware (Jun. 17, 2022, A162314) (Ware I), we

affirmed the convictions but vacated the sentence and remanded for further 

sentencing proceedings in light of Senate Bill No. 567 (2021–2022 Reg. Sess.) 

(Senate Bill 567). 

The trial court conducted a brief resentencing on remand, and 

reimposed the original sentence. We conclude that, in doing so, the court 

erred in two respects: first, under Penal Code section 1170, subdivision 

(b)(5),

1 by relying on an aggravating factor that was also used as a sentencing 

1 All further undesignated statutory references are to the Penal Code. 

All rule references are to the California Rules of Court.
2

enhancement, and second, by summarily refusing to entertain Ware’s motion 

for replacement of his counsel under People v. Marsden (1970) 2 Cal.3d 118

(Marsden). 

We now vacate the sentence and once again remand for further 

consideration of the sentence. 

I. BACKGROUND

“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)).” (Ware I, supra, 

A162314.)
3

Ware agreed to bifurcated court trial on his prior convictions and 

stipulated to two felonies, a February 2017 conviction for burglary (§ 459), 

and an October 2019 conviction for assault upon the person of another likely 

to produce great bodily injury (§ 245, subd. (a)(4)). At the time of each of the 

charged offenses, as well as the two stipulated prior convictions, Ware was on 

felony probation. 

During trial, Ware asked the court if he could state some concerns 

about his appointed counsel on the record. The court sought clarification 

from Ware as to whether he was seeking to replace his counsel. Ware said he 

was not; he merely wanted to document what he felt were lapses in 

communication. The court offered to clear the courtroom and asked clarifying 

questions about the nature of defendant’s complaints about his counsel. 

Ware again stated that he was not seeking to replace his counsel, and the 

following colloquy took place: “THE COURT: All right. So you said you do 

feel uncomfortable. Are you asking that Mr. Alpers be relieved as your 

attorney? THE DEFENDANT: No, because I do want to move on with the 

process, but I just wanted to say this on the record.” Nonetheless, in an 

abundance of caution, the court cleared the courtroom and conducted a 

Marsden hearing. In a confidential proceeding, the court conducted various 

inquiries pertinent to Ware’s dissatisfaction with his counsel. Trial continued 

thereafter, with the same lawyer, Steven Alpers, representing Ware. 

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 imposed an aggregate prison term of 17 

years, four months, explaining as follows: Ware is sentenced “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[,]” plus “onethird of the midterm for counts two, three, and four, for a total of two years 
4

four months for those counts, to be served consecutively with the 15-year 

term for count one.” (Ware I, supra, A162314.) The court stayed the 

sentences on the rest of the counts pursuant to section 654. (Ibid.) 

On appeal, we affirmed the judgment of conviction but vacated the 

sentence and remanded for resentencing, because in light of changes in the 

law brought about by Senate Bill No. 567, applied retroactively,

2 “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).” 

(Ware I, supra, A162314.)

We explained, “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.” (Ware I, supra, A162314.)

At the proceeding upon remand, the court reimposed the original 

sentence, this time stating as follows: “I believe that one factor in 

aggravation, which was proven, which the jury found, was that he was armed 

2 The revisions to California’s triad felony sentencing scheme enacted 

by Senate Bill 567 apply retroactively to this case as “an ameliorative change 

in the law applicable to all nonfinal convictions on appeal. (People v. Superior

Court (Lara) (2018) 4 Cal.5th 299, 308.)” (People v. Flores (2022)

73 Cal.App.5th 1032, 1039, fn. omitted.)
5

with or used a weapon at the time of the commission, which is Rule 4.421 

(a)(2). I find that factor in aggravation. That justifies my imposition of the 

upper term in this case.” The court further stated, “I thought I was clear in 

my sentencing statements about why I reached the aggravating term. I’m 

aware of his age. I would not exercise my discretion based on his age.” The 

court also mentioned, “how these crimes were committed: “Two separate 

211s, wherein one at least he followed the person, the sophistication, things 

of that nature.” 

When the parties were asked whether they had anything they wished 

to say, Ware’s counsel stated, “my client . . . wants a Marsden,” at which 

point the court responded, “Denied. He’s already been—this is on for resentencing. This is just something that I have to do, that this court has to 

take into consideration. So denied.” Ware did not object to the court’s 

reliance on the jury’s finding he was armed with or used a weapon as a

justification for selecting the upper term on count 1. 

This appeal followed.

II. DISCUSSION

Ware raises two issues in this appeal. First, citing section 1170, 

subdivision (b)(5), he argues the court abused its discretion by relying on the 

jury finding that he was armed and used a weapon in the robberies to justify 

selection of the upper term on count 1. Second, he argues he requested a 

Marsden hearing at the resentencing proceeding, and the court erred by 

denying the motion without giving him an opportunity to state his complaints 

about his counsel’s representation. We address these issues in turn.

A. Penal Code Section 1170, Subdivision (b), Error

Section 1170, subdivision (b)(5) provides that “[t]he court shall set forth 

on the record the facts and reasons for choosing the sentence imposed. The

court may not impose an upper term by using the fact of any enhancement 
6

upon which sentence is imposed under any provision of law.” Ware contends

the trial court violated this statute by imposing an upper term sentence for 

count 1 based on an aggravator (he was armed with and used a firearm) that 

also served as a sentencing enhancement. The Attorney General concedes 

error, and we accept the concession. But he argues Ware forfeited the issue 

on appeal by failing to raise it below, citing People v. Scott (1994) 9 Cal.4th 

331. 

Scott does not resolve the problem presented by the conceded section 

1170, subdivision (b)(5) error on this record. We are not dealing simply with 

how the trial court exercised its triad discretion or whether it provided an 

adequate explanation of its discretionary sentencing choice. The court’s 

intention to impose upper term sentences is clear, and, although its stated 

reasons are somewhat general, its reasoning is evident. The problem, 

instead, is whether the court had triad discretion to exercise at all. 

As amended by Senate Bill 567, section 1170, subdivision (b)(2) 

provides that “[t]he court may impose a sentence exceeding the middle term 

only when 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 been stipulated to by the 

defendant or have been found true beyond a reasonable doubt at trial by the 

jury or by the judge in a court trial.”

In Ware I, we could not determine from the record of the original 

sentencing whether the upper term sentence imposed for count 1 is 

authorized by section 1170, subdivision (b)(2). From the record of the 

resentencing, we still cannot discern whether there is a basis for upper term 

sentencing eligibility. And if the court’s upper term sentencing choice was

unauthorized, the rule of forfeiture does not apply, which is an exception to 

the forfeiture doctrine. (People v. Scott, supra, 9 Cal.4th at p. 354.)
7

The Attorney General argues in the alternative that any section 1170, 

subdivision (b)(5) error was harmless. Given the trial court’s clearly 

expressed intention to impose upper term sentences and Ware’s two admitted 

prior convictions, the Attorney General argues, “there is no reasonable 

probability . . . the court would have imposed a lesser sentence had it been 

aware that it could not rely on appellant’s use of a weapon in connection with 

the crime.”

In support of his harmless error argument, the Attorney General 

makes only a generalized reference to aggravating factors in rule 4.421, 

without specifying any particular portion of the rule. And he does not 

address the particulars of the standard of review he urges us to apply.

3

3 Faced with trial court error in imposing upper term sentences without 

the requisite jury findings or stipulated admissions under section 1170, 

subdivision (b)(2), most courts have employed some type of harmless error 

analysis. (See, e.g., People v. Lopez (2022) 78 Cal.App.5th 459, 467, fn. 11; 

People v. Zabelle (2022) 80 Cal.App.5th 1098, 1113.) But courts have applied 

varying standards of review. (Compare, e.g., People v. Lopez, supra, 

78 Cal.App.5th at p. 467 & fn. 11 [when a reviewing court cannot conclude 

beyond a reasonable doubt under Chapman standard that a jury would have 

found true all the aggravating circumstances beyond a reasonable doubt, it 

must still ask whether it is reasonably probable the trial court would have

exercised its discretion to impose a sentence less than the upper term in the 

absence of the unproved aggravating circumstances], with People v. Dunn

(2022) 81 Cal.App.5th 394, 408–410, review granted Oct. 12, 2022, S275655

[first Lopez harmless error step should employ a mix of both Chapman and 

Watson standards and second step should employ only Watson standard]; see 

Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 

818.) The appropriate harmless error standard is now being considered by 

the California Supreme Court. (See People v. Lynch (May 27, 2022, C094174) 

[nonpub. opn.], review granted Aug. 10, 2022, S274942, argued May 9, 2024; 

People v. Falcon (2023) 92 Cal.App.5th 911, 938, review granted Sept. 13, 

2023, S281242; People v. Butler (2023) 89 Cal.App.5th 953, 959–960, review 

granted May 31, 2023, S279633; People v. Ross (2022) 86 Cal.App.5th 1346, 
8

Drawing some inferences from the two stipulated prior convictions, at least 

three aggravating factors listed in rule 4.421(b) might apply here. (See rule 

4.421(b)(2) [prior convictions that are numerous or of increasing 

seriousness], (b)(3) [service of prior prison sentence], (b)(5) [defendant’s prior 

performance on probation was unsatisfactory].) But we decline to guess 

which one the trial court would apply through the prism of harmless error 

analysis.

Of these three provisions, rule 4.421(b)(2) strikes us as the 

aggravating circumstance that seems to be most likely applicable, since the 

two felony convictions Ware admitted, by their nature—and without 

additional judicial “consideration” under section 1170, subdivision (b)(5)—

appear to be of “increasing seriousness.” But it is not our role on appeal to

identify and find record support for aggravating factors we think the trial 

court probably would have relied upon had it appreciated the need to specify 

section 1170, subdivision (b)(2) aggravation for count 1 sentencing, in 

addition to the jury’s arming and use findings. 

Because the trial court expressly relied on a single, invalid aggravating 

factor to justify upper term eligibility on count 1, we will vacate the sentence 

a second time. All we are prepared to say at this stage is that, following the 

enactment of Senate Bill 567, the triad sentencing scheme now requires trial 

courts to be especially attentive to making the requisite record at sentencing 

(§ 1170, subd. (b)(5) [“The court shall set forth on the record the facts and 

reasons for choosing the sentence imposed”]) and, with that in mind, the 

record before us is insufficient for meaningful review. We need not delve into 

harmless error since we must vacate the sentence to rectify a separate error

1354–1355, review granted Mar. 15, 2023, S278266; Dunn, at pp. 408–410, 

rev. granted.) 
9

that we cannot deem harmless on this record, as explained below in Part II.B. 

On remand, we will direct the trial court to comply fully with section 1170, 

subdivision (b)(5), and to clarify exactly what rule 4.421 “[c]ircumstances in 

aggravation” render Ware eligible for upper term sentencing under section 

1170, subdivision (b)(2).

B. Marsden Error

Even if we were inclined to review the record on our own and attempt 

to determine whether the record is adequate to support a determination that 

one or more rule 4.421 factors would have been found true by a jury beyond a 

reasonable doubt on the facts presented, the second ground for Ware’s appeal 

raises a separate problem—failure to hold a Marsden hearing despite a clear 

request for one. 

The applicable Marsden principles here are well-established. When a 

defendant asks to replace his appointed attorney, the trial court is required to 

“permit the defendant to explain the basis of his contention and to relate 

specific instances of inadequate performance.” (People v. Smith (2003) 

30 Cal.4th 581, 604.) “A defendant is entitled to relief if the record clearly 

shows that the appointed counsel is not providing adequate representation or 

that defendant and counsel have become embroiled in such an irreconcilable 

conflict that ineffective representation is likely to result.” (Ibid.) 

A defendant’s Sixth Amendment right to effective assistance does not 

mean that he possesses the right to present a defense of his choosing. (See 

People v. Cole (2004) 33 Cal.4th 1158, 1192; People v. Hamilton (1989) 

48 Cal.3d 1142, 1162.) But it does violate the Sixth Amendment for the court 

to look away where “ ‘to compel one charged with [a] grievous crime to 

undergo a trial with the assistance of any attorney with whom he has become 

embroiled in irreconcilable conflict is to deprive him of the effective 

assistance of any counsel whatsoever.’ ” (Schell v. Witek (9th Cir. 2000) 
10

218 F.3d 1017, 1025.) The right to a Marsden hearing applies throughout a 

criminal proceeding, prior to trial, at trial and in post-trial proceedings. 

(People v. Sanchez (2011) 53 Cal.4th 80, 88). 

“Whenever the motion is made, the inquiry is forward-looking in the 

sense that counsel would be substituted in order to provide effective 

assistance in the future. But the decision must always be based on what has 

happened in the past.” (People v. Sanchez, supra, 53 Cal.4th at p. 88.) The 

fact that a Marsden motion has been made and denied in the past does not 

mean that another such motion may be denied summarily without affording 

the defendant an opportunity to explain his reasons for making it, since 

circumstances during criminal proceedings constantly change. (See, e.g.,

People v. Ng (2022) 13 Cal.5th 448, 481, 495–496, 498–499 [defendant made

37 Marsden motions, one of which, the twenty-third, the court granted].) 

The denial of a Marsden motion is reviewed for abuse of discretion.

(People v. Smith, supra, 30 Cal.4th at p. 604.) But a trial court’s refusal “to 

afford a defendant an opportunity to set forth the reasons underlying his 

request for the substitution of appointed counsel constitutes an abuse of 

discretion by the court.” (People v. Chavez (1980) 26 Cal.3d 334, 346.) There 

is no question Ware sought to make a Marsden motion here. Because the 

record plainly shows that the trial court brushed aside Ware’s request for “a 

Marden” aside without inquiring into the basis for it, we must consider 

whether the error was prejudicial. 

Where we determine the failure to hold a Marsden hearing was an 

abuse of discretion, the error “does not establish a rule of per se reversible 

error. [Citation.]” (People v. Washington (1994) 27 Cal.App.4th 940, 944.) 

Reversal is not required if the record shows beyond a reasonable doubt that 

the defendant was not prejudiced by the trial court’s failure to hold a 

Marsden hearing. (See People v. Taylor (2010) 48 Cal.4th 574, 600–601; 
11

People v. Reed (2010) 183 Cal.App.4th 1137, 1148; People v. Govea (2009) 

175 Cal.App.4th 57, 61 (Govea).) The prejudice standard is the demanding 

test of harmless error beyond a reasonable doubt. (Chapman v. California,

supra, 386 U.S. 18.) 

The Attorney General argues that to the extent the trial court erred in 

failing to inquire into the basis for his Marsden motion at resentencing, the 

error was harmless. In support of this argument, he relies on cases that 

involved section 1368 mental competency issues. (E.g., People v. Taylor, 

supra, 48 Cal.4th at pp. 600–601; Govea, supra, 175 Cal.App.4th at p. 61.) In 

each one, a doubt was declared as to the defendant’s competency to stand 

trial; the defendant made a Marsden motion before the competency hearing;

and only later, after the criminal proceedings were resumed following 

restoration of competency, was a Marsden hearing held, at which point 

counsel was replaced. Faced with those circumstances, the courts in Taylor

and Govea ruled that, since the defendant eventually received “everything he 

sought” (Govea, at p. 62), any error in not holding a Marsden hearing more 

promptly was harmless. 

These cases are inapposite. The problem here is not simply a delayed 

Marsden inquiry, but an outright failure to conduct any inquiry at all. Under 

Chapman (or any other prejudice standard for that matter), we cannot simply 

infer from the court’s willingness to entertain a previous complaint from 

Ware about his counsel’s performance at trial that his later Marsden motion 

at the resentencing proceeding would certainly have been denied. Obviously, 

the array of issues defense counsel must handle at a trial on guilt or 

innocence overlaps with sentencing issues, but counsel’s task at sentencing is 

also quite different in many respects. 

Whether Ware’s Marsden motion had any merit depends on the nature 

of his dissatisfaction, which was never explored. The trial court failed to 
12

make a record about what Ware’s Marsden complaints were; whether those 

complaints had anything to do with issues that were or could have been 

raised at the resentencing proceeding; or whether the same complaints had 

been raised previously. Because, on this record, we cannot say beyond a 

reasonable doubt that Ware’s complaints about his counsel at his 

resentencing hearing were simply tactical and would not have made a 

difference to the sentencing outcome, we must remand so that Ware can be 

afforded an opportunity to explain why he believes he is entitled to new 

counsel at the further resentencing proceeding we are now ordering. 

III. DISPOSITION

The sentence is vacated and the cause is remanded for further 

resentencing proceedings. The court is directed to afford Ware an 

opportunity to explain the basis for his Marsden motion, and then to resolve 

that motion after considering his stated reasons for making it. The court is 

also directed to conduct further resentencing proceedings in full compliance 

with section 1170, subdivision (b)(5), and in the course of those proceedings to

clarify exactly what rule 4.421 “[c]ircumstances in aggravation” it is relying 

upon to trigger upper term sentencing eligibility on count 1.

STREETER, Acting P. J. 

WE CONCUR:

GOLDMAN, J.

HITE, J.*

* Judge of the Superior Court of California, City and County of San 

Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.