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Filed 8/10/23 P. v. Stuart CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.