Filed 8/10/23 P. v. Stuart CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE LEE STUART,

Defendant and Appellant.

 D081141

 (Super. Ct. No. CR79608)

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 
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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 
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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.”
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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.