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Filed 3/8/23 P. v. Stuart CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DEMONE STUART,

Defendant and Appellant.

C094818

(Super. Ct. No. STK-CR-FE2020-0008121)

Defendant Anthony Demone Stuart appeals a judgment entered after a jury found 

him guilty of: (1) second degree murder with two firearm enhancements; and (2) being a 

felon in possession of a firearm. The trial court determined he had been convicted of a 

prior strike and sentenced him to an aggregate prison term of 55 years to life plus 16 

months. Defendant argues: (1) his murder conviction must be reversed because the trial 

court prejudicially erred in inadequately responding to the jury’s inquiry during 

deliberations; and (2) the matter must be remanded for resentencing to allow the trial 

court to exercise its discretion consistent with the California Supreme Court’s decision in 

People v. Tirado (2022) 12 Cal.5th 688 (Tirado). 
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We agree with defendant’s second argument, but not the first. Accordingly, we 

vacate defendant’s sentence and remand so that the trial court may exercise its discretion 

under Tirado. The judgment is otherwise affirmed.

FACTS AND HISTORY OF THE PROCEEDINGS

The People’s amended information charged defendant with first degree murder 

(Pen. Code, § 187, subd. (a); count one) (statutory section citations that follow are found 

in the Penal Code unless otherwise stated) and being a felon in possession of a firearm 

(§ 29800, subd. (a)(1); count two). The information further alleged as to count one that 

defendant intentionally discharged a firearm causing death (§ 12022.53, subd. (d)), used a 

firearm in the commission of a felony (§ 12022, subd. (a)), and had previously been 

convicted of a serious felony (§ 667, subd. (a)). The information alleged as to both 

counts that defendant had been convicted of a prior strike (§§ 667, subd. (b), 1170.12, 

subd. (b)).

Defendant denied the allegations, and the prior conviction allegations were 

bifurcated. The matter was then tried to a jury with defendant representing himself. 

The People’s Case

The People presented evidence showing that defendant and his friend Miranda 

Flores lived in an apartment with defendant’s father Wendell Stuart. We will refer to the 

victim by his first name, Wendell, in order to avoid possible confusion given that the 

victim and defendant share the same last name.

Defendant and Wendell had had prior verbal and physical confrontations. In the 

early morning hours of August 4, 2020, defendant and Flores called authorities 

complaining Wendell assaulted them with a gun. Wendell threatened to kill them, and 

the pair retreated to their bedroom and fled from the balcony, leaving their belongings. 

Defendant reported that he had been shot, but the responding officer did not agree and 

described defendant’s injury as a scratch. 
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Later the same day, Wendell visited his mother Loretta Dinkins, who lived in 

another apartment in the complex. Defendant and Dinkins were not close. Wendell and 

Dinkins went to Wendell’s apartment and discovered it had been ransacked, except 

defendant’s bedroom. The door to the apartment had been locked when they opened it. 

Dinkins left to summon help, but then heard gunshots. She rushed back to Wendell’s 

apartment and saw defendant, dressed all in black with a black mask and gloves. Dinkins 

initially chased defendant, but decided to return to check on Wendell. Dinkins found 

Wendell on the floor of the apartment bleeding with an injury to the face. When police 

arrived, Dinkins reported defendant had shot Wendell. 

Another neighbor, Patrick Walker, saw a masked individual dressed in black using 

a key to open the door to Wendell’s apartment. Later, Walker saw the same person 

running through the apartment complex and attempting to clear the wall separating the 

complex from a nearby store. That person picked something up and then continued 

fleeing. Walker confirmed the person had the same build as defendant and at trial opined 

defendant was that person. 

Authorities responded and confirmed the apartment was safe. They then 

performed CPR until emergency medical responders arrived and took over. Wendell died 

as a result of the gunshot wound to his face. 

It appeared Wendell may have been dealing drugs, and a loaded handgun was 

discovered on his person at the hospital. The two shell casings found at the scene did not 

match Wendell’s gun, and there was only evidence of two gunshots in the apartment. 

Surveillance video from the apartment complex captured images of a suspect 

dressed in black fleeing and attempting to jump a wall. Consistent with eyewitness 

testimony, this person circled back for an item prior to jumping the complex fence. 

Dinkins positively identified defendant as the person in the video. The shirt and pants 

defendant wore when reporting Wendell’s early morning assault matched those of the 

person in the surveillance video and had been recorded by a police bodycam. Moreover, 
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a health application on defendant’ phone showed his movements were consistent with the 

person fleeing the scene shortly after the murder. 

Lead investigating detective Andrew Donovan spoke on the phone with defendant 

regarding Wendell’s early morning assault, but defendant refused to discuss the 

timeframe of the murder or to turn himself in. Following defendant’s arrest, authorities 

interviewed Flores, who told them defendant had been gone part of the morning in 

question. At trial, Flores denied any memory of making that statement. 

Video of Flores and defendant in an interrogation room showed Flores warning 

defendant that authorities had him on video. Further, defendant asked Flores not to say 

anything else to the police and to deny that the pair had returned to the apartment. On the 

second day of Flores’s trial testimony, she changed her story, stating the pair had waited 

at the apartment for Wendell to leave and then retrieved their belongings before leaving 

together. 

The parties stipulated that defendant was not allowed to own, possess, or receive a 

firearm because of his previous felony conviction. 

The Defense Case

At defendant’s request, the court read the preliminary hearing testimony of 

Keymonte Christian, who was unavailable to testify at trial because of COVID-19. 

Ms. Christian heard what she thought was a gunshot at approximately 10:00 a.m. on 

August 4, 2020. She grabbed her son and headed for the master bedroom. On the way, 

she saw through the apartment windows a black man dressed in a black hoodie, black 

pants, and black shoes running. She then saw Ms. Dinkins start to chase him. Ms. 

Christian could not say whether the man was defendant, but the person recorded on 

surveillance video was the same man. Also on August 4th at about 3:00 a.m., Ms. 

Christian heard a loud noise that sounded like a gunshot. 
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Defendant also recalled detective Donovan, who testified to several phone calls 

Wendell had on his cell phone with an individual identified as “Need Weed” and that the 

last call occurred shortly before the murder. Further, a pound of marijuana was found 

near Wendell’s body at the crime scene. 

Defendant also testified in narrative form. He moved in with Wendell after 

defendant’s grandfather died, and defendant believed Wendell had made positive life 

changes in response to his medical problems requiring dialysis. They got along fine for 

months. Then defendant’s longtime friend Ms. Flores started staying with him. 

Wendell’s behavior, such as sitting with his legs wide open watching television, made her 

uncomfortable, and she complained to defendant. Defendant spoke with Wendell, and 

their relationship became strained. A few days before the murder, Wendell cut 

defendant’s back with a knife, but defendant refused to press charges. 

By the evening of August 3, 2020, defendant had made the decision to move out 

and had packed his belongings. He and Ms. Flores were sitting in defendant’s room 

watching YouTube and heard Wendell making a lot of noise, slamming doors and 

cabinets and trashing his own apartment. Ms. Flores was hungry, so the pair went to the 

kitchen to prepare food. Wendell was angry that Flores was sitting in his chair. Flores 

got up, and Wendell took the chair and flung it at the TV. Wendell then pulled a gun on 

defendant and Flores, threatened to kill them both, and shot defendant prior to their 

escape from the balcony. Defendant denied he was armed or that he killed Wendell. 

Rather, after speaking with the police, defendant saw Wendell drive away and then 

defendant entered the apartment to retrieve his and Flores’s belongings. Defendant 

denied ransacking the apartment and never saw Wendell again. 

Because defendant testified he had been sentenced to time-served for his prior 

felony conviction, the People were permitted to provide evidence that defendant had been 

convicted by a jury of felony burglary and sentenced to the upper term of six years. 

Further, while defendant maintained he had no sexual relations with Ms. Flores, 
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photographs of Ms. Flores engaged in oral and vaginal intercourse with a black male 

were recovered from defendant’s phone and used to impeach his testimony. 

The Verdicts and Sentence

The jury found defendant guilty of second degree murder, illegally possessing a 

firearm, and determined the firearm enhancement allegations were true. At a bifurcated 

proceeding, the trial court found defendant had been convicted of a prior strike, denied 

the motion to strike his prior strike, and refused to exercise its discretion to strike the gun 

enhancement. The court then sentenced defendant to 30 years to life for second degree 

murder with a prior strike, 25 years to life consecutive for the firearm enhancement 

(§ 12022.53, subd. (d)), and 16 months for being a felon in possession of a firearm with a 

prior strike for total aggregate indeterminate prison term of 55 years to life plus a 16-

month determinate term. Defendant timely appealed and appellate briefing in this matter 

was completed on November 21, 2022. 

DISCUSSION

I

The Jury’s Question

Defendant complains the trial court prejudicially erred in inadequately responding 

to the jury’s question concerning provocation and first and second degree murder. 

Defendant has failed to show the trial court’s response was an abuse of discretion.

With the consent of the parties, the court decided it would instruct the jury on 

manslaughter in light of the evidence presented concerning Wendell’s alleged earlier 

assault with a firearm. Accordingly, the trial court instructed the jury on murder, the 

different degrees of murder, and manslaughter. 

Thereafter during deliberations, the jury first requested a review of Ms. Flores’s

interview by police (specifically the portion wherein she was told that Wendell was dead) 

and the surveillance video of the suspect jumping the wall, which were provided. The 
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next day, the jury sent the court a note stating, “We need [a] different definition of 

provication [sic] and 1st and 2nd degree.” The court proposed and ultimately sent the 

following response to the jury: “Jury instruction 522 discusses provocation and its 

effects on first or second degree murder. The Court cannot give a further definition or 

instruction. [¶] Jury instruction 520 defines murder. Please refer to this instruction for 

the definition of murder. If you decide that the defendant committed murder, it is murder 

of the second degree, unless the People have proved beyond a reasonable doubt that it is 

murder of the first degree. [¶] First degree murder requires premeditation and 

deliberation. Refer to jury instruction 521 for the definition of premeditation and 

deliberation.” 

The People agreed the trial court’s proposed response was appropriate. The court 

declined defendant’s request to add the following to the court’s proposed response: “[I]f 

you are unable to agree on first and second, then you would have to try to agree to the 

lesser count of manslaughter. And if then you are unable to agree to the count of 

manslaughter, then you must vote not guilty.” Defendant further objected to the court’s 

proposed response because it used the word “murder” multiple times, which was noted 

and overruled. 

Approximately 80 minutes after the trial court sent the response, the jury reported 

it had reached a verdict. 

The jury’s question in this matter triggered section 1138. This section provides in 

pertinent part: “After the jury have retired for deliberation, . . . if they desire to be 

informed on any point of law arising in the case, they must require the officer to conduct 

them into court. Upon being brought into court, the information required must be given.” 

(§ 1138.) 

As our Supreme Court has explained, the jury’s question triggered the trial court’s 

“primary duty to help the jury understand the legal principles it is asked to apply.” 

(People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) “This does not mean the 
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court must always elaborate on the standard instructions. Where the original instructions 

are themselves full and complete, the court has discretion under section 1138 to 

determine what additional explanations are sufficient to satisfy the jury’s request for 

information. [Citation.] Indeed, comments diverging from the standard are often risky.” 

(Id. at p. 97.) We review the propriety of the trial court’s response to the deliberating 

jury’s question for an abuse of discretion. (People v. Waidlaw (2000) 22 Cal.4th 690, 

745-746.)

Defendant faults the trial court’s response to the jury’s question as inadequate, 

complaining first that the court should have questioned the jury to learn the source of 

their confusion with the CALCRIM instructions, and second, that referring the jury back 

to the CALCRIM instructions was inadequate to address their confusion thereby violating 

his constitutional rights. There was no error. 

First, we take issue with defendant’s characterization of the trial court’s response. 

The court did not merely refer the jury back to the pattern instructions without doing 

anything to aid the jury. Rather, the court provided a thoughtful response directing the 

jury to the pertinent CALCRIM numbers and explaining their interaction. This was 

directly responsive to the jury’s question. Accordingly, the court did not, as defendant 

contends, “utterly fail[] to provide the jury an answer to its question.” 

Nor was it error to tell the jury that it would not provide “a further definition or 

instruction.” The trial court was within its discretion to decide that it did not need to 

stray beyond the definitions provided within the CALCRIM instructions to answer the 

jury’s question. (See Beardslee, supra, 53 Cal.3d at p. 97 [highlighting risks associated 

with diverging from the standard jury instructions].) 

Nor has defendant established the trial court erred in failing to question the jury 

about its request. Not only did defendant not request this below, thereby arguably 

forfeiting the argument on appeal, it is also clear why the jury would have had questions 

concerning the applicability of provocation. Although the jury had heard evidence at trial 
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that the victim Wendell allegedly committed assault with a firearm against defendant in 

the early morning hours prior to the murder, which caused the trial court to give the 

manslaughter instruction, neither of the parties discussed provocation in their closing 

arguments. Rather, the People argued defendant had committed premeditated murder, 

and defendant countered he was innocent because the evidence showed Wendell was 

killed as the result of a drug deal gone bad. 

Moreover, there is nothing to indicate the trial court’s response was unhelpful, and 

anecdotally, it appears that it was helpful in light of the jury reaching a verdict about 80 

minutes later without further inquiry. Finally, given that that the court’s instructions on

these issues were full and complete, there was no abuse of discretion. (Beardslee, supra, 

53 Cal.3d at p. 97.) 

II

The Firearm Enhancement

Defendant alternatively requests that we vacate his sentence and remand the 

matter for a new sentencing hearing wherein the trial court may consider imposing a 

lesser firearm enhancement term under Tirado, supra, 12 Cal.5th 688. While conceding 

Tirado’s applicability, the People argue the trial court’s sentencing comments show the 

trial court would not have exercised this discretion. We conclude we must vacate 

defendant’s sentence and remand for resentencing.

In Tirado, the California Supreme Court recognized the trial court’s ability to 

strike a firearm enhancement under section 12022.53, subdivision (d) and, in its place, 

impose a lesser, uncharged firearm enhancement under section 12022.53, subdivision (b) 

or (c). (Tirado, supra, 12 Cal.5th at pp. 696-702 [holding that a trial court has the 

discretion to impose a lesser, uncharged firearm enhancement under § 12022.53].) Here, 

the trial court declined to strike the section 12022.53, subdivision (d) firearm 

enhancement, but at the time the court exercised its discretion, it was unaware of its 

ability to impose a lesser, uncharged enhancement. “ ‘Defendants are entitled to 
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sentencing decisions made in the exercise of the “informed discretion” of the sentencing 

court.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

While it is true that the trial court listed numerous factors in aggravation when 

declining to strike the firearm enhancement, the court did not make any statements that 

foreclose the possibility that, had the court been aware of its ability to substitute a lesser 

firearm enhancement, it would not have done so. (People v. Gutierrez, supra, 58 Cal.4th 

at p. 1391; People v. Morrison (2019) 34 Cal.App.5th 217, 223-224.) Accordingly, we 

conclude that we must vacate defendant’s sentence and remand for a resentencing 

hearing.

DISPOSITION

We vacate defendant’s sentence and remand for resentencing to allow the trial 

court to exercise its discretion consistent with Tirado, supra, 12 Cal.5th at page 688. 

Following resentencing, the trial court shall prepare an amended abstract of judgment and 

forward a certified copy of that document to the California Department of Corrections 

and Rehabilitation. The judgment is otherwise affirmed. 

 

HULL, J.

We concur:

 

ROBIE, Acting P. J.

 

MAURO, J.