Filed 10/28/20 P. v. Thompson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159072
v.
DONNELLY L. THOMPSON, (Contra Costa County
Super. Ct. No. 51006915)
Defendant and Appellant.
Defendant Donnelly Thompson was charged with murder and pleaded
no contest to the lesser included offense of voluntary manslaughter as part of
a plea agreement. He later petitioned for resentencing under Senate Bill No.
1437, which made certain changes to the felony murder rule and the natural
and probable consequences doctrine. The trial court denied Thompson’s
petition, concluding that he is not eligible for relief under Senate Bill No.
1437 because he was not convicted of murder. We affirm.
BACKGROUND
The trial court summarized the factual background of this appeal as
follows:
“The evidence adduced at the preliminary hearing for both defendants
tended to show that [Thompson] and co-defendant [Brett L.] Richardson were
involved in two separate robbery attempts on [July 14, 2009] in Pittsburg—
the first at an Autozone store and the second at a barbershop. During the
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second incident at the barbershop, [Thompson] entered the shop with a semi-
automatic handgun. A struggle ensued for the gun between [Thompson] and
two men inside the barbershop. During the struggle the gun was discharged.
Thereafter, [Thompson] fled back to the car where Richardson was waiting
for him. When the two men involved in the struggle with [Thompson]
followed [him] out of the barbershop, they heard and partially saw gunshots
being fired in their direction from [the] area of the car to which [Thompson]
had fled. Those gunshots resulted in the homicide victim, Eric Pree Jr., an
innocent bystander, being shot and killed.”
On June 18, 2010, the Contra Costa County District Attorney’s Office
filed an information charging Thompson and Richardson with Pree’s murder
(Pen. Code, § 187)1 (count 1) and with five counts of attempted robbery
(§§ 664, 211) (counts 3–7). The information also alleged that Thompson
personally used a firearm (§ 12022.53, subd. (b)), had one serious prior felony
conviction (§ 667, subd. (a)), and had one previous strike (§§ 667, subds. (b)-
(i), 1170.12).
On June 8, 2012, the information was amended to include a charge of
voluntary manslaughter (§ 192, subd. (a)) (count 8). That same day,
Thompson entered into a plea agreement whereby he pleaded no contest to
voluntary manslaughter and admitted the firearm enhancement, strike, and
serious felony allegations, in exchange for a sentence of 14 years.2 On July 6,
the trial court sentenced to Thompson to 14 years in prison—three years on
count 8, doubled because of his previous strike, plus five years for the prior
1 Further undesignated statutory references are to the Penal Code.
Richardson ultimately went to trial and was convicted of first-degree
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murder. In December of 2013, we affirmed his conviction. (People v.
Richardson (Dec. 30, 2013, A135298) [nonpub. opn.].)
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felony conviction (§ 667, subd. (a)) and three years for the firearm
enhancement (§ 12022.5, subd. (a)). The remaining charges were dismissed.
In 2018, Senate Bill No. 1437 was signed into law. “ ‘Senate Bill [No.]
1437 was enacted to “amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats.
2018, ch. 1015, § 1, subd. (f).) Substantively, Senate Bill [No.] 1437
accomplishes this by amending section 188, which defines malice, and section
189, which defines the degrees of murder, and as now amended, addresses
felony murder liability. Senate Bill [No.] 1437 also adds . . . section 1170.95,
which allows those “convicted of felony murder or murder under a natural
and probable consequences theory . . . [to] file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)’ ”
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1148, quoting People v.
Martinez (2019) 31 Cal.App.5th 719, 723–724.)
On June 24, 2019, Thompson filed a petition for resentencing under
section 1170.95, and requested that counsel be appointed to represent him.
The trial court appointed counsel, and the parties filed briefs.
In a five-page written order, the trial court denied Thompson’s petition,
concluding that he was not eligible for resentencing under section 1170.95
because he was not convicted of murder.
Thompson appeals.
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DISCUSSION
Thompson’s only argument on appeal is that the trial court erred in
concluding that he is not eligible for relief under section 1170.95 because he
was not convicted of murder—a question of law that we review de novo. (See
People v. Turner (2020) 45 Cal.App.5th 428, 435.)
Section 1170.95, subdivision (a) provides:
“A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated
and to be resentenced on any remaining counts when all of the following
conditions apply:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder.
“(3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective January 1,
2019.”
As the trial court aptly observed: “By its plain language, these
statutory provisions apply only to those persons who have been convicted of
murder under a felony murder theory of liability or a natural and probable
consequences theory of liability. Furthermore, the second of the three
‘conditions’ which must apply to a petition to recall is that the petitioner be
convicted of first or second degree murder following a trial or the entry of a
plea agreement in lieu of trial. As if those provisions were not sufficiently
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clear, the introductory paragraph of subsection (a) plainly states that the
petition to be filed would request that the murder conviction be ‘vacated.’
Vacating the ‘murder conviction’ and resentencing on the ‘remaining counts’
is the only remedy authorized by the statute. The statute makes no reference
to the modification to or a dismissal of a conviction for any other offense.”
Thompson concedes that the statute “appear[s] to apply only to murder
convictions” and “does not mention voluntary manslaughter convictions
explicitly.” However, he argues that the legislative intent behind Senate Bill
No. 1437 was that it apply in cases of voluntary manslaughter, relying
extensively on the legislative finding that “[t]here is a need for statutory
changes to more equitably sentence offenders in accordance with their
involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b), emphasis
added.)
We need not address these arguments in detail, because approximately
a month before Thompson’s opening brief was filed, we extensively considered
and rejected them in People v. Paige (2020) 51 Cal.App.5th 194, 200–204
(Paige)—a case that, for reasons that are unclear, neither party has cited in
their briefing. In Paige, the defendant was, as here, charged with murder but
pleaded guilty to voluntary manslaughter as part of a plea agreement, and
sought resentencing pursuant to section 1170.95 after the passage of Senate
Bill No. 1437. (Paige, at pp. 198–199.) We concluded that the plain text of
section 1170.95 is unambiguous and applies only to murder convictions.
(Paige, at pp. 201–202.) We “reject[ed] Paige’s argument based on a snippet
of language from the uncodified section of Senate Bill No. 1437 stating the
purpose of the bill is to more equitably sentence offenders ‘in accordance with
their involvement in homicides’ (Stats. 2018, ch. 1015, § 1, subd. (b), italics
added), that the statute extends beyond murder.” (Id. at pp. 202–203.) And
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we concluded: “In short, we agree with our colleagues in the Second, Fourth
and Fifth Districts holding that defendants charged with felony murder but
convicted of voluntary manslaughter pursuant to a plea agreement are not
eligible for relief under section 1170.95.” (Id. at p. 204; see People v.
Cervantes (2020) 44 Cal.App.5th 884, 887 [“The plain language of [section
1170.95] is explicit; its scope is limited to murder convictions”]; People v.
Sanchez (2020) 48 Cal.App.5th 914, 917–920; People v. Turner, supra,
45 Cal.App.5th at pp. 435–436; People v. Flores (2020) 44 Cal.App.5th 985,
992–997.) Our decision in Paige is dispositive of Thompson’s appeal.
DISPOSITION
The order is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Miller, J.
People v. Thompson (A159072)
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