People v. Ware

• Decision Date: 27 March 2023
• Docket Number: D072515
• Parties: THE PEOPLE, Plaintiff and Respondent, v. VICTOR WARE et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. VICTOR WARE et al., Defendants and Appellants.

D072515

California Court of Appeals, Fourth District, First Division

March 27, 2023

NOT TO BE PUBLISHED

Order Filed Date 4/10/23

Order Filed Date 4/6/23

APPEALS from judgments of the Superior Court of San Diego County No. SCD255884, Leo Valentine, Jr., Judge. Affirmed in part, reversed in part, and remanded for resentencing.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Dionte Simpson.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Victor Ware.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina,

Warren J. Williams, and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION

THE COURT: It is ordered that the opinion filed on March 27 2023, be modified as follows:

1. In the Disposition on pages 78-79, delete the second paragraph and insert the following:

"As to appellant Ware, we reverse his conviction on count 9 (gang conspiracy, § 182.5). On counts 1, 10, and 14, we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b)). On count 10, we vacate the gang-related firearm enhancement allegations. (§ 12022.53, subds (b)-(d) &(e)(1)). Ware's sentence is vacated and the matter is remanded to the superior court. On remand, the court is directed to strike (1) the unpaid balance of the $154 criminal justice fee and (2) Ware's one-year prior prison term enhancement under section 667.5, subdivision (b) for a prior prison term resulting from drug convictions in violation of Health and Safety Code sections 11350, subdivision (a), and 11351.5. The People shall decide whether to retry Ware on the gang enhancement allegations (§ 186.22, subd. (b)), and gang related firearm enhancement allegations (§ 12022.53, subds. (b)-(d) &(e)(1)). Upon determination as to the status of these allegations (no retrial, or retrial and final resolution) Ware is to be sentenced consistent with current law. In all other respects, Ware's judgment is affirmed."

There is no change in the judgment.

ORDER MODIFYING OPINION

THE COURT:

It is ordered that the opinion filed on March 27, 2023, be modified as follows:

2. On page 4, line 1 of the first full paragraph, delete the first sentence and replace with the following sentence:

"In an unpublished opinion originally issued on July 21, 2020,^[2] we reverse Simpson's and Hoskins's gang conspiracy convictions, but reject appellants' remaining arguments regarding their convictions."

3. In the Disposition on page 79, delete the first paragraph and insert the following:

"As to appellant Simpson, we reverse his conviction on count 6 (gang conspiracy, § 182.5). On counts 1 through 5, we vacate the true findings on the gang enhancement allegations (§ 186.22, subd. (b)). On counts 2 and 3, we vacate the true findings on the gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d) &(e)(1)). Simpson's sentence is vacated and the matter is remanded to the superior court. On remand, the court is directed to strike the unpaid balance of the $154 criminal justice fee and the People shall decide whether to retry Simpson on the gang enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement allegations (§ 12022.53, subds. (b)-(d) &(e)(1)). Upon determination as to the status of these allegations (no retrial, or retrial and final resolution) Simpson is to be sentenced consistent with current law. In all other respects, Simpson's judgment is affirmed."

There is no change in the judgment.

O'ROURKE, J.

Dionte Simpson, Victor Ware, and Nicholas Hoskins (collectively appellants) are members of 5/9 Brim (Brim), a criminal street gang in San Diego that is a set of the Bloods gang. The Neighborhood Crips (NC) and West Coast Crips (WCC), (together, the Crips), other criminal street gangs, are the main rivals of the Brims. A jury found appellants guilty of the following crimes related to their gang involvement:

Count 1 (all appellants): Between January 1, 2012 and April 23, 2014, conspired to commit murder (Pen. Code,^[2] §§ 182, subd. (a), 187) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Counts 2 and 3 (Simpson): June 14, 2011, attempted murder of victims 1 and 2 (§§ 664, 187, subd. (a)) involving the personal use of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)), and for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

Counts 4 and 5 (Simpson): June 14, 2011, assaulted victims 1 and 2 with a firearm (§ 245, subd. (b)) for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

Count 6 (Simpson): April 4, 2012, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about April 4, 2012. (§§ 664, 187, 189.)

Count 7 (Hoskins): August 27, 2013, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about August 27, 2013. (§§ 664, 187, 189.)

Counts 8, 12, and 13 (Ware): January 29, 2014, and April 23, 2014, possessing a firearm by a felon. (§ 29800, subd. (a)(1)).

Count 9 (Ware): March 25, 2014, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about March 25, 2014. (§§ 664, 187, 189.)

Count 10 (Ware): March 25, 2014, first degree attempted murder (§§ 664, 187, subd. (a)) involving the personal use and discharge of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Count 14 (Ware): May 6, 2014, assault by means likely to produce great bodily injury (§§ 245, subd. (a)(4)) for the benefit of a criminal street gang. (§186.22, subd. (b)(1).)

Ware subsequently admitted a prison prior allegation. (§ 667.5, subd. (b).) The court sentenced appellants to prison as follows: (1) Ware, 27 years, plus 40 years to life; (2) Simpson, 36 years, plus 25 years to life; and (3) Hoskins, 25 years to life.

Appellants challenged the sufficiency of the evidence supporting their convictions for conspiracy to commit murder (count 1) and criminal street gang conspiracy (counts 6, 7, 9). Appellants also challenged the instruction regarding coconspirators' statements. Ware asserted that the trial court erred by failing to instruct the jury that it could find multiple conspiracies existed. Simpson, joined by Hoskins, asserted that their conspiracy convictions must be reversed because the jury was allowed to consider overt acts after the conspiracy terminated and overt acts that were not proven. Hoskins, joined by Simpson, also contended that their conspiracy convictions violated their right to free speech under the First Amendment because the court admitted evidence of their social media posts to establish participation in the alleged conspiracy.

Simpson challenged the evidence supporting his convictions for attempted murder (counts 2 and 3) and assault with a firearm (counts 4 and 5). Ware challenged the sufficiency of the evidence supporting the gang enhancement attached to his attempted murder conviction (count 10) and the evidence supporting one of his convictions for possessing two handguns found during the search of his residence (counts 12 and 13). He also challenged counts 12 and 13 on statute of limitations grounds. He further asserted that he received ineffective assistance when his trial counsel failed to move to suppress the gun found during his January 29, 2014, pat down search (count 8), and for conceding his guilt on all three firearm possession counts (counts 8, 12, and 13). Finally, Ware argued that the trial court incorrectly imposed sentence for both the firearm enhancement and the gang enhancement, and improperly imposed sentences for both conspiracy to commit murder and attempted murder. Finally, Simpson and Ware sought remand to allow the trial court to exercise its discretion to strike or impose the section 12022.53 firearm enhancements attached to counts 2 and 3. Simpson and Hoskins also claimed cumulative error.

In an unpublished opinion originally issued on July 21, 2020,^[3] we reversed Ware's and Hoskins's gang conspiracy convictions, but rejected appellants' remaining arguments regarding their convictions. We agreed to vacate Simpson's and Ware's sentences and remanded the matter for resentencing.^[4]Hoskins petitioned the California Supreme Court for review of his conviction for conspiracy to commit murder, the sole remaining conviction against him, arguing insufficient evidence supported his conviction.^[5] (See People v. Ware (2022) 14 Cal.5th 151, 156.) The Supreme Court concluded that insufficient evidence was presented at trial to show Hoskins had the requisite intent to participate in a conspiracy to kill rival gang members, it reversed his judgment, and remanded the matter for further proceedings. (Id. at p. 175.)

We accepted the parties' stipulation for the issuance of an immediate remittitur as to Hoskins.^[6] Simpson and Ware filed supplemental briefs jointly contending: (1) their gang-related enhancements must be reversed in light of the changes made to section 186.22 by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5) (Assembly Bill 333); (2) Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 92, § 11; (Assembly Bill 1869), requires that any unpaid portion of the criminal justice fee imposed pursuant to Government Code section 29550.1 be vacated; and (3) upon resentencing, the trial court must apply section 1385, as amended by Senate...