Filed 9/21/23 P. v. Thompson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLEN CORTEZ THOMPSON,

Defendant and Appellant.

F085690

(Super. Ct. No. CF96571402)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.

Skiles, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and 

Dina Petrushenko, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Meehan, J. and DeSantos, J.
2.

Defendant Allen Cortez Thompson was resentenced after this court reversed an 

order in a prior appeal when the trial court failed to properly consider a request from the

Secretary of the Department of Corrections and Rehabilitation (CDCR) to recall his 

original sentence. (People v. Thompson (March 29, 2022, F083075) [nonpub. opn.].) 

Defendant now appeals the new sentence he received following remand, arguing the trial 

court failed to properly consider his motion made pursuant to People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497 (Romero). Our review leads us to conclude the trial 

court’s determination on the Romero motion did not constitute an abuse of discretion, and 

we thus affirm the new sentence imposed. However, on a separate issue, this case 

requires the preparation of an amended abstract of judgment to reflect all the time 

defendant has actually served since he was originally sentenced in 1997. 

BACKGROUND SUMMARY

In 1996, an information was filed charging defendant with kidnapping with the 

intent to commit robbery (Pen. Code,1 § 209, subd. (b) [Stats. 1990, ch. 55, § 3],

2 a 

felony; count 1), second degree robbery (§§ 211, 212.5, subd. (c), a felony; count 2),

negligent discharge of a firearm (§ 246.3 [Stats. 1988, ch. 1275, § 1], a felony; count 3), 

and being a felon in possession of a firearm (former § 12021, subd. (a)(1) [Stats. 1995, 

ch. 178, § 1], a felony; count 5).

3 The information further alleged defendant was armed 

with a firearm in the commission of the robbery (§ 12022, subd. (a)(1)), and personally 

used a firearm (§ 12022.5, subd. (a)) in the commission of both the kidnapping and 

robbery. Finally, the information alleged defendant had three prior serious felony

convictions (§ 667, subd. (a)(1)), three prior strike convictions (§§ 667, subds. (b)–(i), 

1 All further statutory references are to the Penal Code. 

2 Where relevant, citations to previous versions of the statutes have been provided.

3 Count 4 is not mentioned because it was brought only against a codefendant. 
3.

1170.12, subd. (a)–(e), 1192.7, subd. (c)), and had served a prior prison term (former 

§ 667.5, subd. (b)).

In January 1997, defendant pled no contest to each count, admitted the weapon use 

enhancements, admitted all the prior convictions and that he served a prior prison term. 

Defendant was then sentenced to a total term of 33 years to life consisting of 25 years to 

life sentence for the robbery count, plus five years for the prior serious felony conviction, 

and three years for the firearm use enhancement. The sentences for the remaining counts 

were stayed pursuant to section 654.

In March 2020, the Secretary of the CDCR wrote the trial court a letter 

recommending defendant’s sentence be recalled under the authority of then section 1170, 

subdivision (d).

4

 After the court refused to recall his sentence, defendant appealed that 

decision.5 In a nonpublished opinion (People v. Thompson (Mar. 29, 2022, F083075)

[nonpub.opn.]), we reversed the trial court’s decision refusing to recall defendant’s 

sentence and remanded the matter for further proceedings consistent with section 1172.1.

On December 15, 2022, the trial court held a hearing to consider the CDCR 

recommendation to recall defendant’s sentence. During that hearing, the court also 

considered defendant’s Romero motion, asking the court to strike the prior felony 

conviction allegations that brought the case under the “Three Strikes Law.” At the 

conclusion of the hearing, the court recalled appellant’s sentence, denied the Romero

motion, and resentenced defendant. Defendant’s new sentence of 25 years to life, using

the robbery count (count 2) as the principal term, was determined after striking the prior 

4 The relevant language now appears in section 1172.1, which was renumbered and 

amended by Assembly Bill No. 200 (2021–2022 Reg. Sess; Stats. 2022, ch. 58, § 9, 

eff. June 30, 2022). All further references to this statutory language are to 

section 1172.1.

5 Defendant’s request to file a belated appeal was granted by this court on June 17,

2021, after he was not properly served with the trial court’s decision not to recall his 

sentence. (In re Thompson (June 17, 2021, F081912 [nonpub. opn.].)
4.

serious felony enhancements, the firearm use enhancement, and the prior prison term 

enhancement. Once again, the sentences for the remaining counts were stayed pursuant 

to section 654. The court also awarded the same presentence credits listed in the original 

judgment.

DISCUSSION

The primary focus of defendant’s appeal is on the trial court’s denial of his 

Romero motion, believing the decision constituted an abuse of discretion. Defendant 

believes the court refused to properly consider the motion because of its “practice of 

never dismissing strikes if the defendant was on parole when the new offense was 

committed.” Our review of the full transcript of the hearing in this matter reveals 

defendant’s interpretation of the court’s reasoning is too restrictive and fails to 

acknowledge other relevant criteria the court considered. 

I. The Denial of the Romero Motion Did Not Constitute an Abuse of Discretion

A. Standard of Review

Section 1385 empowers a trial court to “order an action to be dismissed” to further 

justice, on its own motion, or on the prosecution’s motion. (§ 1385, subd. (a).) 

Furthermore, under section 1385, a trial court can also dismiss a portion of a case, 

including allegations stating a defendant was previously convicted of a felony that 

qualifies as a strike. (Romero, supra, 13 Cal.4th at p. 508.) Any order striking such an 

allegation should only be entered after a court determines the interests of justice would be 

served by not imposing a statutorily enhanced sentence, because the defendant falls 

outside the spirit of the Three Strikes law. (Id. at pp. 529–530.) Therefore, the trial court 

must consider:

“[W]hether, in light of the nature and circumstances of his present felonies 

and prior serious and/or violent felony convictions, and the particulars of 

his background, character, and prospects, the defendant may be deemed 

outside the scheme’s spirit, in whole or in part, and hence should be treated 

as though he had not previously been convicted of one or more serious 
5.

and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161; 

accord, People v. Johnson (2015) 61 Cal.4th 674, 688–689.)

When a trial court either fails or refuses to dismiss a prior strike conviction 

allegation during sentencing, the court’s decision will be reviewed under an abuse of 

discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) The 

party appealing the sentence has the burden to show the decision was irrational or 

arbitrary; something no reasonable person could agree with. (Id. at pp. 376–377.) 

Because the Three Strikes law establishes a preference that prior strikes enhance a 

sentence, there is a “strong presumption ... any sentence that conforms ... is both rational 

and proper.” (Id. at p. 378.) 

A trial court is not required to state reasons for declining to exercise its discretion 

under section 1385, and absent an affirmative record to the contrary, is presumed to have 

considered all relevant factors properly. (People v. Gillispie (1997) 60 Cal.App.4th 429, 

433; People v. Myers (1999) 69 Cal.App.4th 305, 310.) If a record is silent on what the 

court considered when sentencing a defendant, but the “ ‘record demonstrates that the 

trial court balanced the relevant facts and reached an impartial decision in conformity 

with the spirit of the law,’ ” the trial court’s sentence should be affirmed, even if the 

reviewing court might have ruled differently. (Carmony, supra, 33 Cal.4th at p. 378.) 

B. Application

Again, defendant contends that when considering his Romero motion, the trial 

court improperly focused on his parole status when the crimes were committed in 1996. 

This belief appears to be based on the following statement made by the trial court:

“I’ll just focus in on the Romero issue. The issue the Court has is 

the fact that he was on parole for three prior robberies at the time he 

committed this kidnap and robbery. I have never stricken a strike when 

somebody was on parole for the strike offense. I understand you’re saying 

it was a five-year prior, but he was still on supervision for those crimes at 

the time he committed this crime.”
6.

We view this statement as one acknowledging the trial court’s prior rulings, not 

necessarily a statement of how he would rule in the future. Our conclusion is supported 

by additional statements made by the court when actually ruling on this matter:

“[H]e’s been in jail now or prison for 24 years plus couple years in 

jail prior to that, but every time he has been on supervision, he has picked 

up a new felony while on supervision. 

“So I’m not saying that is going to make me find that he’s a public 

safety risk to where I’m going to deny the resentencing, but I’m also not 

going to say that that is not something this Court should consider when it 

looks at whether Romero is appropriate. 

“So I am very impressed by what I have seen from him, particularly 

in what he has availed himself in prison as far as rehabilitative avenues, 

courses, things that he’s gone through. That bodes well for the future, but I 

also cannot be completely blind to the fact that historically every time he 

has been released from custody, he’s committed a new offense.”

The court went on to explain its thinking even further:

“I’m giving him credit for what he has done, which is significant, 

and I’m balancing that against a criminal history that, quite frankly, is as 

significant as most that I have seen when you’re talking about Romero

given parole violation, parole violation and those new offenses being 

serious and violent and involving weapons. 

“But with that, let me put it on the record and, again, this—my 

intention and I believe the result of this resentencing will be that he will be 

immediately eligible for parole.”

We find no abuse in these statements. The Three Strikes law increases 

punishment for a person who is convicted of a felony after having been previously 

convicted of specified offenses. (People v. Murphy (2001) 25 Cal.4th 136, 139.) 

Section 1385, subdivision (a) gives the trial court the discretion to strike an allegation 

that a defendant has previously been convicted of a felony if the dismissal is in 

furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) The Three Strikes law was 

devised for career criminals, and it was intended to ensure longer prison sentences for 

those who commit a felony as long as they were previously convicted of at least 
7.

one strike. (People v. Strong (2001) 87 Cal.App.4th 328, 331–332.) Our Supreme Court 

has declared that the purpose of the Three Strikes law is to punish recidivism, and it 

focuses on the status of a defendant as a repeat felon. (People v. Murphy, supra, 25 

Cal.4th at p. 155.) 

Our review of the record reveals a trial court that engaged in a balancing process 

considering policy factors on how a new sentence should be imposed and shows the court 

exercising discretion based on the actual record before it. It was entirely reasonable for 

the court to take into consideration the fact defendant reoffended while he was on parole 

for a prior strike offense. (People v. Uecker (2009) 172 Cal.App.4th 583, 599.) We also 

believe, based on the facts before the court, that it did not fall “ ‘outside the bounds of 

reason’ ” to consider the possible consequences of defendant being immediately released 

versus having to face a parole board to obtain a release. (See People v. Williams, supra,

17 Cal.4th at p. 162.) 

We believe the “ ‘court balanced the relevant facts and reached an impartial 

decision in conformity with the spirit of the law.’ ” (Carmony, supra, 33 Cal.4th at 

p. 378.) We, therefore, find no abuse of discretion in the court’s decision denying the 

Romero motion. (See Id. at p. 375.) 

II. The Abstract of Judgment Must be Corrected

Defendant also asks this court to remand this matter so that the abstract of 

judgment issued after resentencing can be corrected to reflect all the time he has served 

since being sentenced in 1997. “We do agree with defendant that the trial court, having 

modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, 

to credit him with all actual days he had spent in custody, whether in jail or prison, up to 

that time. As we have seen, the court’s duty in this respect arose from section 2900.1, 

which specifies that when a sentence is modified while in progress, the ‘time’ already 

served ‘shall be credited upon any subsequent sentence [the defendant] may receive upon 
8.

a new commitment for the same criminal act or acts.’ ” (People v. Buckhalter (2001) 26 

Cal.4th 20, 37.) 

Pursuant to section 2900.1, once defendant was resentenced, the trial court should 

have determined all actual days defendant spent in custody and awarded such credits in 

the new abstract of judgment. 

DISPOSITION

The trial court is directed to prepare and forward to the CDCR an amended 

abstract of judgment awarding defendant additional custody credits for the period after he 

was originally sentenced in 1997 to December 15, 2022. In all other respects, the 

judgment is affirmed.