People v. Thompson CA5

Filed 3/29/22 P. v. Thompson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or ordered pub lished f or purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE , F083075 Plaintiff and Respondent, (Super. Ct. No. CF96571402) v.

ALLEN CORTEZ THOMPSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff, Judge. UnCommon Law and Alec Weiss for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and DeSantos, J.

In this appeal, appellant Allen Cortez Thompson seeks the reversal of a trial court decision declining to recall his sentence pursuant to Penal Code1 section 1170, subdivision (d). Appellant wants the opportunity to present evidence to the trial court on the issue of his eligibility for a recall of his sentence. The Attorney General does not oppose this request and believes appellant should be allowed to present evidence to the trial court. Due to a very recent change in the law governing this matter, we reverse the trial court’s decision refusing to recall appellant’s sentence, and remand this matter for further proceedings. BACKGROUND In 1997, appellant pled nolo contendere to robbery in the second degree (§§ 211, 212.5, subd. (c)); kidnapping for the purpose of committing a robbery (§ 209, subd. (b) [Stats. 1990, ch. 55, § 3]);2 willful discharge of a firearm (§ 246.3 [Stats. 1988, ch. 1275, § 1]); and for being a felon in possession of a firearm (former § 12021, subd. (a)(1) [Stats. 1995, ch. 178, § 1]). After a prior serious felony (§ 667, subd. (a)) and a firearm use enhancement (§ 12022.5) were also applied, appellant received a sentence of 33 years to life. On March 16, 2020, Ralph Diaz, then Secretary of the Department of Corrections and Rehabilitation (CDCR), sent a letter to the Fresno County Superior Court recommending appellant’s sentence be recalled and he be resentenced pursuant to § 1170, subdivision (d). On May 19, 2020, a letter was sent by Fresno County Superior Court Judge Gary Hoff, stating he declined to accept the recommendation to recall and resentence appellant, concluding the interests of justice would not be served by revisiting the original sentence. Although the letter included a “cc” line followed by appellant’s name, the clerk’s certificate of mailing attached to the letter shows the letter was sent