Filed 8/10/23 P. v. Stuart CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE LEE STUART

,

Defend ant and Appellant. D 081141

(Super. Ct. No. CR79608 )

APPEAL from a n 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

robbe d 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 stud ent 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 of2

murder (Pen. Code, 1 § 187, subd. (a)

, count 6 )

, one count o f 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 i n 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 r esentence Stuart unless a request was received from the

District Attorney or the California Department of Corrections and

Rehabilitation. 3 Stuart timely appeal ed 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 subst antive 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 defendant3

C ounsel filed an open ing 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 t his 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 moti on 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.

De lgadillo (2022) 14 Cal.5th 216, 226.) Accordingly, we decline to conduct an

independent review of the record and turn to the arguments raised by Stuar t

in his supplemental brief. To the best we can discern, Stuart contends the

Governor erred when he reve rsed 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 n ot govern parole decisions.

Accordingly, we affirm the trial court ’ s order denying his motion for

resentencing.

incarcerated in county jail, t he 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 man ner 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.”4 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.