Filed 9/20/23 P. v. Ware CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B326925
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA220696)
v.
JOSEPH WARE,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, George G. Lomeli, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of
Appeal; Joseph Ware, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_______________________
Joseph Ware was found guilty following a jury trial in 2002
on two counts of attempted murder of a peace officer (Pen. Code,
§§ 187, subd. (a), 664, subd. (e))1 and two counts of assault with a
semiautomatic firearm on a peace officer (§ 245, subd. (d)(2)) with
true findings that Ware had personally and intentionally
discharged a firearm in committing the offenses (§ 12022.53,
subd. (c)). The jury found not true the allegation the attempted
murders were committed willfully, deliberately and with
premeditation. We affirmed Ware’s convictions on direct appeal.
(People v. Ware (Aug. 25, 2004, B167166) [nonpub. opn.].)
On November 17, 2022 the superior court denied Ware’s
petition for resentencing under section 1172.6 (former
section 1170.95) without issuing an order to show cause, ruling
Ware was ineligible for relief as a matter of law because Ware
had been tried and convicted as the actual shooter and the jury
had not been instructed on the natural and probable
consequences doctrine or any other theory under which malice
could have been imputed to him.
No arguable issues have been identified following review of
the record by Ware’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Ware in
his supplemental brief. We affirm.
FACTUAL BACKGROUND
1. Ware’s Conviction for Attempted Murder
The People’s evidence at Ware’s trial was that Ware, a
guest at a barbecue being held in the back parking lot of an
apartment complex where his mother and sister lived, was asked
1 Statutory references are to this code.
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by another guest, 16-year-old Tyrone Patterson, to drive him to a
store to purchase more paper plates for the party. Ware agreed
and was driving on Crenshaw Boulevard in a grey 1985
Oldsmobile Cutlass toward the store at approximately 9:00 p.m.
when two Los Angeles police officers in a marked police car
noticed the Oldsmobile being driven without its headlights on.
The officers positioned their car behind the Oldsmobile, activated
the patrol car lights and chirped the siren to alert the driver to
pull over. Ware pulled a gun from underneath the driver’s seat
and entered a gas station where he slowed the car and told
Patterson to take the gun and run from the car. When Patterson
refused to leave the car with the gun, Ware accelerated the car
and led the officers on a pursuit. At various points during the
chase Ware and the officers fired shots at each other. Ware
ultimately abandoned the car and fled. He was subsequently
found in one of the units in the apartment complex and arrested.
One of the officers identified Ware at trial as the shooter.
Ware’s alibi (mistaken identity) defense included testimony
from the barbecue host, who said he had not asked anyone to go
to the store to buy additional paper plates. Ware’s fiancée
testified the Oldsmobile was her car; she wanted to go to the fish
market during the barbecue and intended to drive herself;
Patterson and another resident from the apartment complex were
sitting in the car as she got in and put her key in the ignition;
after she was offered and accepted a ride to the market from a
friend, she inadvertently left her keys in the car’s ignition; and,
when she left for the market, Ware was upstairs in another
apartment playing video games.
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On appeal we rejected Ware’s contention there was no
substantial evidence to support the jury’s finding that he was the
person who shot at the police officers or, even if he was the
shooter, that he acted with the intent to kill required for an
attempted murder conviction. (People v. Ware, supra, B167166.)
2. Ware’s Petition for Resentencing
On July 14, 2022 Ware, representing himself, filed a form
petition for resentencing pursuant to section 1172.6 and
requested the appointment of counsel. On September 21, 2022
the court appointed counsel for Ware, stated it was prepared to
deny the petition as a matter of law because Ware was the actual
shooter who had fired at the police officers, and offered newly
appointed counsel and the prosecutor the opportunity to look at
the file and “to submit and/or augment the record with whatever
they’d like to, to try to controvert whatever the court is going to
do.” The court set what it identified as a status conference for
November 17, 2022.
At the hearing on November 17, 2022, in response to the
court’s question whether she had anything to add with respect to
the court’s tentative ruling, Ware’s counsel stated she had not
seen any material from the case other than Ware’s initial petition
and, in particular, had not seen any of the trial transcripts
including the jury instructions. The court replied, “Well, I denied
it as a matter of law based on the circumstances.” Elaborating,
the court stated, “[Ware] was the actual shooter, fired at police
officers, law enforcement. He was the actual shooter and the
actual perpetrator in this, and the jury found true the discharge
pursuant to 12022.53(d) [sic]. There were no natural and
probable consequences instructions or any other instructions that
could impute intent or malice on Mr. Ware. And so you can object
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for the record, counsel for Mr. Ware, but the court is denying this
as a matter of law.”
Ware filed a timely notice of appeal.
DISCUSSION
We appointed counsel to represent Ware on appeal from the
denial of his postjudgment petition. After reviewing the record,
appointed counsel did not identify any arguable issues and so
informed this court. Appointed counsel advised Ware on
August 15, 2023 that he was filing a brief stating he was unable
to find arguable issues and that Ware could personally submit
any contentions he believed the court should consider.
On August 28, 2023 we received a 10-page handwritten
supplemental brief from Ware in which he argued the
resentencing hearing was unfair and he received ineffective
assistance of counsel because the court’s decision to deny his
petition was made before his appointed counsel had an
opportunity to review any material from his 2002 trial. Ware
also asserted the superior court had impermissibly made factual
findings at the prima facie stage of the resentencing process and
his youth at the time of the offenses should have been considered
in evaluating his culpability. Finally, Ware contends his
appellate counsel was ineffective for not raising any of these
issues.
We agree the superior court erred in ruling Ware had not
made a prima facie showing he was entitled to relief without first
requiring the prosecutor to serve a response to Ware’s petition
and giving Ware’s appointed counsel an opportunity to file a
reply—an opportunity that would be meaningless if Ware’s
counsel was not first provided access to materials from the 2002
trial. Section 1172.6, subdivision (c), expressly requires as much,
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notwithstanding the court’s apparently strong belief that its
understanding of the case was correct. But the error was
harmless here. (See People v. Lewis (2021) 11 Cal.5th 952, 944
[“a petitioner ‘whose petition is denied before an order to show
cause issues has the burden of showing “it is reasonably probable
that if [he or she] had been afforded assistance of counsel his [or
her] petition would not have been summarily denied without an
evidentiary hearing”’”]; People v. Mancilla (2021) 67 Cal.App.5th
854, 864 [error in not appointing counsel at the prima facie stage
of a section 1172.6 proceeding is necessarily harmless if the
record of conviction shows as a matter of law that the petitioner
was convicted under a theory of murder that remains valid
today].)
At the request of Ware’s appointed appellate counsel, this
court augmented the (exceedingly thin) record on appeal to
include the record filed in Ware’s direct appeal, which included
the jury instructions given in 2002 and the verdict forms. Our
review of those instructions confirms the superior court’s
statement that no instructions were given on the natural and
probable consequences doctrine or any other theory under which
malice could be imputed to Ware. In fact, no aiding and abetting
instruction of any sort was given at the trial. To the contrary, the
jury was expressly instructed that to convict Ware of attempted
murder it had to find that he “harbored express malice
aforethought, namely a specific intent to kill unlawfully another
human being.” Thus, the guilty verdicts necessarily rested on the
jury finding (challenged on appeal for insufficient evidence and
affirmed by his court) that Ware acted with the intent to kill
when shooting at the police officers.
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For the same reason—that is, the record of conviction
establishes Ware’s ineligibility for resentencing as a matter of
law—Ware’s contention the superior court engaged in
impermissible factfinding lacks any merit. And Ware’s youth at
the time of the attempted murders, while arguably pertinent to
murder charges based on the felony-murder rule or aiding an
implied malice murder, is irrelevant in assessing his guilt for
attempted murder, which requires proof of express malice.
Because no cognizable legal issues have been raised by
Ware’s appellate counsel or by Ware or identified in our
independent review of the record, the order denying his petition
for resentencing is affirmed. (See People v. Delgadillo (2022)
14 Cal.5th 216, 231-232; see generally People v. Kelly (2006)
40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436,
441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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