People v. Ware CA4/2

INTRODUCTION

Defendant and appellant Martin Ware appeals a trial court’s denial of his petition

for resentencing made pursuant to Penal Code section 1172.6.1 He contends 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; therefore, 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,…