People v. Ware CA1/4

Opinion

Filed 8/18/26 P. v. Ware CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A173406 v. (Alameda County CHRISTOPHER SAMUEL WARE, Super. Ct. No. 20CR02239A Defendant and Appellant.

MEMORANDUM OPINION1 In 2021, Christopher Samuel Ware was convicted of several counts of robbery, identity theft, and illegal firearm possession. In an appeal, his sentence was reversed because the applicable sentencing law changed while the appeal was pending. (People v. Ware (June 17, 2022, A162314) [nonpub. opn.].) He was resentenced, but in a second appeal the sentence was again reversed due to the trial court’s error in imposing an upper term sentence based on an aggravating factor that was used as a sentencing enhancement. (People v. Ware (May 30, 2024, A168221) [nonpub. opn.].)

1 We find this matter appropriate for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions].)

1 In this third appeal, Ware contends that the trial court again erred in imposing an upper term sentence on an enhancement. He notes that although he had stipulated to the fact of the prior convictions, he did not stipulate that the crimes were of increasing seriousness, as required for the imposition of an upper term sentence under People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), which was decided after appellant’s sentencing hearing. Ware also contends that the trial court failed to recalculate the credit to which he was entitled based on time served. He notes that although he has been in custody since July 31, 2020, the abstract of judgment reflects only 187 days of actual credit and 159 days of conduct credit. Because these numbers appear to have been calculated as of his original sentencing hearing on March 22, 2021, Ware asks that we direct the trial court to recalculate his custody credits. The Attorney General concedes error in the reimposition of the upper term sentence, acknowledges that the stay of Ware’s sentence on the enhancement does not alter the analysis (see People v. Rhodius (2025) 17 Cal.5th 1050, 1063 [holding that a defendant is entitled to resentencing on an enhancement which was subsequently eliminated by the Legislature even if enhancement was stayed]), and agrees that the case must be remanded so that the trial court can resentence appellant consistent with the holding of Wiley, supra, 17 Cal.5th at page 1086. He also agrees that Ware’s custody credits must be recalculated. The Attorney General does not agree, however, that upon resentencing the trial court is obliged to impose the low term and argues that, upon resentencing, the court is free to impose the upper term sentence on the 2 enhancement if it identifies a valid aggravating factor supported by a jury finding or admission by appellant. (See Pen. Code, § 1170, subd. (b).)2 We accept the Attorney General’s concessions of error. DISPOSITION Ware’s sentence is hereby vacated and the cause is remanded for further resentencing proceedings so that the court can exercise its discretion in a manner consistent with Wiley and Penal Code section 1170, subdivision (b). If, after taking into account any mitigating factors Ware may present, the court may reimpose a triad term on the enhancement above the lower term if the court deems it warranted by some aggravating factor or factors found by a jury or admitted by Ware (other than the increasing seriousness of Ware’s prior convictions). The court is also directed to recalculate Ware’s custody credits. STREETER, J.

WE CONCUR:

BROWN, P. J. GOLDMAN, J.

2 Ware did not file a reply brief, and therefore has not contested the Attorney General’s argument on this point.