People v. Stuart CA4/1

Filed 8/10/23 P. v. Stuart CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081141
Plaintiff and Respondent,
v. (Super. Ct. No. CR79608)
JESSE LEE STUART,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
In 1986, Jesse Lee Stuart, then 20 years old, and his two cohorts
robbed the assistant manager of a store and then a man sitting in his car.
Stuart and one of his cohorts with guns in hand, later approached Kelly B. as
she parked her car. Kelly, a student at the Sheriff’s Academy, was dressed in
her uniform. When Kelly turned to run, Stuart shot her in the back, killing
her. The men then stole Kelly’s car and fled. A jury convicted Stuart of
murder (Pen. Code,1 § 187, subd. (a), count 6), one count of burglary (§ 459,
count 2); and three counts of robbery (§ 211, counts 3, 4, 5). The jury also
found true allegations that Stuart was armed with a firearm (§ 12022, subd.
(a), count 2), personally used a firearm (§ 12022.5, counts 3, 4, 5, & 6), and
that he personally inflicted great bodily injury upon Kelly (§ 12022.7, counts
2 & 5).
At a resentencing hearing in 1987, the court sentenced Stuart to 35
years to life in prison. In January 2022, the Board of Parole Hearings (the
Board) found Stuart suitable for parole but the Governor reversed the grant
of parole in June 2022. In September 2022, Stuart filed a “motion for
resentencing or parole” under section 1172.1 (former section 1170.03).2 The
following month, the court denied the motion on the ground it lacked
jurisdiction to resentence Stuart unless a request was received from the
District Attorney or the California Department of Corrections and
Rehabilitation.3 Stuart timely appealed and we appointed counsel to
represent him.
1 Undesignated statutory references are to the Penal Code.
2 The motion was originally filed under section 1170.03. “Effective June
30, 2022, ‘[t]he Legislature . . . renumbered section 1170.03 to section 1172.1,
but made no substantive changes.’ ” (People v. Braggs (2022) 85 Cal.App.5th
809, 818.) For clarity and consistency, we will only reference section 1172.1.
3 Subdivision (a)(1) of section 1172.1 provides: “When a defendant, upon
conviction for a felony offense, has been committed to the custody of the
Secretary of the Department of Corrections and Rehabilitation or to the
custody of the county correctional administrator pursuant to subdivision (h)
of Section 1170, the court may, within 120 days of the date of commitment on
its own motion, at any time upon the recommendation of the secretary or the
Board of Parole Hearings in the case of a defendant incarcerated in state
prison, the county correctional administrator in the case of a defendant
2
Counsel filed an opening brief asking that we exercise our discretion to
independently review the record for error pursuant to Anders v. California
(1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436(Wende). He presented no argument for reversal but asked this court to
review the record for error as mandated by Wende. Counsel raised no specific
issues on appeal and instead, identified one possible, but not arguable, issue
pursuant to Anders, as follows, whether the trial court erred by denying
Stuart’s motion for resentencing or parole.
We invited Stuart to submit a supplemental brief, which he did.
Because this is an appeal from a motion for postjudgment relief, not a first
appeal as a matter of right, Stuart is not entitled to Wende review. (People v.
Delgadillo (2022) 14 Cal.5th 216, 226.) Accordingly, we decline to conduct an
independent review of the record and turn to the arguments raised by Stuart
in his supplemental brief. To the best we can discern, Stuart contends the
Governor erred when he reversed the Board’s decision to grant him parole.
This contention is unrelated to the denial of his resentencing motion which is
the only matter properly before us. Although Stuart’s motion was entitled as
for “resentencing or parole,” section 1172.1 does not govern parole decisions.
Accordingly, we affirm the trial court’s order denying his motion for
resentencing.
incarcerated in county jail, the district attorney of the county in which the
defendant was sentenced, or the Attorney General if the Department of
Justice originally prosecuted the case, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as if
they had not previously been sentenced, whether or not the defendant is still
in custody, and provided the new sentence, if any, is no greater than the
initial sentence.”
3
DISPOSITION
The order denying defendant’s Penal Code section 1172.1 motion is
affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
KELETY, J.
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