People v. Stuart CA3

Filed 9/24/24 P. v. Stuart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C100265

Plaintiff and Respondent, (Super. Ct. No. STKCRFE20200008121) v.

ANTHONY DEMONE STUART,

Defendant and Appellant.

Appointed counsel for defendant Anthony Demone Stuart has asked this court to conduct an independent review of the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Stuart has filed a supplemental brief, which we discuss in more detail below. We will direct the trial court to prepare an amended abstract of judgment reflecting Stuart’s resentencing. Finding no

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other arguable error that would result in a disposition more favorable to Stuart, we will affirm the judgment. BACKGROUND A jury found Stuart guilty of second degree murder and possessing a firearm having been convicted of a felony. The jury also found true allegations that, in committing the murder, Stuart had used a firearm (Pen. Code, § 12022.5, subd. (a))1 and had personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§ 12022.53, subd. (d)). The trial court then found true allegations that Stuart had previously been convicted of a serious felony. At sentencing, the trial court declined to strike Stuart’s prior serious felony conviction and declined to strike the section 12022.53, subdivision (d) firearm enhancement. Accordingly, the court sentenced Stuart to: 15 years to life in prison for murder, doubled due to the prior serious felony conviction; a consecutive term of 25 years to life in prison for the section 12022.53, subdivision (d) firearm enhancement; four years in prison for the section 12022.5 enhancement, with execution stayed; and eight months in prison for possessing a firearm having been convicted of a felony, doubled due to the prior serious felony conviction, for an aggregate sentence of 56 years four months to life in prison. Stuart appealed and this court affirmed his convictions but vacated his sentence and remanded for resentencing so that the trial court could exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement with awareness that the law now permitted the court to impose a lesser, uncharged section 12022.53 enhancement in its stead. (People v. Stuart (Mar. 8, 2023, C094818) [nonpub. opn.]; see People v. Tirado (2022) 12 Cal.5th 688, 696-702.)