People v. Stuart CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. CR79608
- Trial judge
- Kimberlee A. Lagotta
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Joan K. Irion, Julia C. Kelety
Analysis
The trial court denied Stuart's motion for resentencing under Penal Code section 1172.1, ruling it lacked jurisdiction because the motion was not initiated by the District Attorney or the Department of Corrections and Rehabilitation. The Court of Appeal affirmed the denial, holding that the motion was procedurally defective and that Stuart's arguments regarding the Governor's parole decision were outside the scope of the resentencing motion.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion for resentencing under Penal Code section 1172.1“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” | de novo | correct | agree with court The appellate court correctly identified that under Penal Code section 1172.1, the power to recall a sentence and resentence is vested in the court upon its own motion or upon the recommendation of specific state officials (Secretary of CDCR, Board of Parole Hearings, County Correctional Administrator, District Attorney, or Attorney General). A pro se motion by the defendant does not trigger this jurisdiction. The court also correctly noted that the defendant's arguments regarding the Governor's parole decision were irrelevant to a section 1172.1 resentencing motion, which does not govern parole suitability or gubernatorial review. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Defendants are not entitled to Wende review on appeal from a motion for postjudgment relief, only on a first appeal as a matter of right.
- relied: People v. Braggs (2022) 85 Cal.App.5th 809 — Section 1170.03 was renumbered to section 1172.1 without substantive changes.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel must file a brief identifying arguable issues or explain why none exist.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate courts must independently review the record for error when appointed counsel finds no arguable issues on a direct appeal.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory prerequisites for section 1172.1 motions and properly distinguishes between resentencing and parole proceedings. It accurately cites People v. Delgadillo to deny Wende review for a postjudgment motion.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Jesse Lee Stuart's self-filed motion for "resentencing or parole" under Penal Code section 1172.1 (former section 1170.03), ruling it lacked jurisdiction to recall and resentence absent a recommendation from the District Attorney or CDCR. On appeal, appointed counsel filed a Wende/Anders brief; the Court of Appeal declined independent review under People v. Delgadillo because the appeal was from a postjudgment order, found Stuart's supplemental argument about the Governor's reversal of his parole grant was outside the scope of the section 1172.1 motion, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of defendant's section 1172.1 motion for recall and resentencing on the ground the court lacked jurisdiction to act without a request from the District Attorney or CDCR“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.” | unclear | correct | agree with court Section 1172.1, subdivision (a)(1), as quoted in the opinion, allows recall only on the court's own motion within 120 days or upon recommendation of the CDCR Secretary, the Board, the county correctional administrator, the district attorney, or the Attorney General; it does not authorize a defendant to initiate the process. Published authority (People v. Chlad; People v. Frazier) holds a defendant-initiated recall motion gives the trial court nothing to act on and the order denying it is nonappealable, so denial for lack of jurisdiction was correct, though the court did not expressly analyze the merits or appealability and simply affirmed after finding the supplemental brief raised nothing pertinent. |
Treatment of the 'parole' component of the motion — the Court of Appeal held section 1172.1 does not govern parole decisions and Stuart's challenge to the Governor's reversal of the Board's parole grant was not before it“Although Stuart’s motion was entitled as for “resentencing or parole,” section 1172.1 does not govern parole decisions.” | unclear | not reached | agree with court A challenge to a gubernatorial parole reversal is properly brought by petition for writ of habeas corpus, not through a trial-court resentencing motion under section 1172.1, so the court correctly declined to reach it in an appeal from the order denying that motion. The court did not, however, tell Stuart that habeas corpus is the available vehicle, which would have been helpful given his self-represented supplemental brief. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Wende/Anders independent review is not constitutionally required in an appeal from a postjudgment order that is not a first appeal as of right; the reviewing court may instead evaluate the arguments raised in the defendant's supplemental brief.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel finds no arguable issues on a first appeal as of right.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous may so advise the court and identify anything in the record that might arguably support the appeal.
- relied: People v. Braggs (2022) 85 Cal.App.5th 809 — Effective June 30, 2022, section 1170.03 was renumbered as section 1172.1 without substantive change.
- missed: People v. Chlad (1992) 6 Cal.App.4th 1719 — A defendant has no standing to move for recall of sentence under former section 1170(d); the trial court's denial of such a self-initiated motion does not affect the defendant's substantial rights and is not an appealable order, so the appeal should be dismissed.
The appellate opinion: sound with gaps — The court correctly applied Delgadillo to decline Wende review, correctly read section 1172.1 as not authorizing a defendant-initiated recall and as having nothing to do with parole decisions, and reached a defensible result. It did not, however, address the threshold question of appealability under Chlad and Frazier (which would ordinarily call for dismissal rather than affirmance), nor did it point the self-represented appellant to habeas corpus as the proper vehicle for challenging the Governor's parole reversal.
Opinion
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.
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 2 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.”
3 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.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12