1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

v. MARTIN WARE, Defendant and Appellant. E080791 (Super.Ct.No. FSB03904)
OPINION

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.2 INTRODUCTION Defendant and appellant Martin Ware appeals a trial court ’ s denial of his petition
for res entencing made pursuant to Penal Code section 1172.6. 1 He c ontend s 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 ; th erefore, 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 deliberatio n 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.3

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 w hich malice is imputed to a person based solely o n 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, 2022.4

The minute order for the hearing on October 7, 2022 , state s , “Action came on for
Status Conference/OSC re p etition for Resentencing Pursuant to P C1170.95.” 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 state s 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 , attach ing 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 the5

Court should view the filing on the Petitioner ’ s behalf as a motion where the defendant ’ s petition makes [a] prima facie showing, v ia 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 t o Show Cause as a matter o f 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 probab le consequences doctrine did not apply t o 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.6

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 t he true findings o n 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 th erefore 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 conced e the court denied the petition based, in part, on its
mistaken belief that the jury was not instructed on natural and probable consequences ;
t hus, the matter should be remanded for a new prima facie hearing. We conclude th e matter should be remanded for an evidentiary hearing, to be held with d efendant present , absent a valid waiver.7

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 kill er, 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 that8

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
T he 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 (CALJI C No. 3.02) as part of the main packet of instructions ; however, it subsequently provide d 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. I n light of the fact that the jury was given a natural and probable consequences instruc t ion , 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 denying9

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 reflect s the court granted defendant’s request for an OSC on July 15, 2022, without objection by the People. T he People now claim the court’s OSC order was “tentative” or, in the alternative, “rescinded” at the February 3, 2023 hearing , and they conc e de 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 , w e 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. T he 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.)10

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, subd s . (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.