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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
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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.
3