1

Filed 10/28/20 P. v. Thompson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DONNELLY L. THOMPSON,

Defendant and Appellant.

 A159072

 (Contra Costa County

 Super. Ct. No. 51006915)

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 
2

second incident at the barbershop, [Thompson] entered the shop with a semiautomatic 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. 

2 Richardson ultimately went to trial and was convicted of first-degree 

murder. In December of 2013, we affirmed his conviction. (People v. 

Richardson (Dec. 30, 2013, A135298) [nonpub. opn.].) 
3

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. 
4

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 
5

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 
6

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. 
7

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

People v. Thompson (A159072)