People v. Trotter CA2/3

Filed 12/29/21 P. v. Trotter CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B310316

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A570665)
v.

ANTHONY GRAHAM TROTTER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Terry Lee Smerling, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 Anthony Graham Trotter appeals the trial court’s denial of
his request for a hearing pursuant to People v. Franklin (2016)
63 Cal.4th 261 (Franklin) to preserve youth-related mitigation
evidence for his application to the Governor for commutation of
sentence. The trial court denied the motion, finding Trotter was
not entitled to a Franklin proceeding because Penal Code1 section
3051, subdivision (h) excluded offenders, like Trotter, who are
serving life sentences without the possibility of parole (LWOP)
from the youth offender parole hearing process and because
section 4801, subdivision (a) does not permit a Franklin
proceeding to aid in a petition for commutation or pardon. We
affirm.
BACKGROUND
Trotter admitted the murder and robbery of Charlene
Belmer Hartsough while burglarizing her home, and he admitted
personal use of a dangerous and deadly weapon. Trotter entered
Hartsough’s home on the morning of April 23, 1986 by breaking a
living room window to obtain money for drugs. While Trotter
was in the middle of the burglary, Hartsough returned home.
Trotter killed Hartsough by strangling her with a telephone cord
and bludgeoning her head with a candlestick. Trotter turned
himself in to the police before the crime was discovered. (People
v. Trotter (Oct. 29, 2003, B160437) [nonpub. opn.] at p. 2
(Trotter I).)
Trotter initially pleaded guilty to first degree murder
(§ 187, subd. (a); count 1), residential burglary (§ 459; count 2),
and robbery (§ 211; count 3). Trotter admitted the truth of

1 All further statutory references are to the Penal Code.

2
special circumstance allegations he committed the murder during
a burglary and robbery (§ 190.2, subd. (a)(17)) and he personally
used a deadly and dangerous weapon (§ 12022, subd. (b)).
Trotter’s subsequent petition for writ of habeas corpus was
granted, and the district court ordered a trial on the special-
circumstance allegations, including the element of intent to kill.
A jury found the special circumstance allegations true, and
Trotter was sentenced to LWOP. We affirmed the judgment.
(Trotter I, supra, B160437 at p. 2.)
In 2020, Trotter petitioned for resentencing under section
1170.95, requesting the trial court vacate his murder conviction.
The court denied the petition ex parte based on a finding Trotter
was the actual killer and actual killers are not eligible for
resentencing under sections 1170.95 and 189, subdivision (e)(1).
We affirmed the trial court’s denial of Trotter’s section 1170.95
petition. (People v. Trotter (Sep. 3, 2021, B309637) [nonpub.
opn.].)
In May 2020, Trotter signed an application for
commutation of sentence under section 4801, subdivision (a).2
Because Trotter was under 26 years old when he committed the
crimes,3 in December 2020, Trotter requested a Franklin

2 Section 4801, subdivision (a) reads in part: “The
Board . . . may report to the Governor, from time to time, the
names of any and all persons imprisoned in any state prison who,
in its judgment, ought to have a commutation of sentence or be
pardoned and set at liberty on account of good conduct, or
unusual term of sentence, or any other cause, including evidence
of intimate partner battering and its effects.”
3Trotter was born in 1962 and was 24 years old when the
crimes occurred in 1986.

3
proceeding to make a record of youth-related mitigation evidence
relative to his application. He also requested the appointment of
counsel. The trial court denied both requests ex parte,
concluding Trotter was not entitled to a Franklin proceeding
because section 3051, subdivision (h) excluded those offenders,
like Trotter, who were sentenced to LWOP for offenses committed
after they were 18 years old, from the youth offender parole
hearing process. The court also found section 4801, subdivision
(a) did not provide for a Franklin proceeding for offenders,
youthful or otherwise, in the aid of a petition for commutation or
pardon.
Trotter appealed.
DISCUSSION
Trotter contends section 3051, subdivision (h), as applied,
denied him his constitutional right to equal protection of law and
he was still entitled to a Franklin proceeding pursuant to section
4801, subdivision (a) to preserve youth-related mitigating
evidence for his application for commutation of sentence.
I. Forfeiture
Initially, the People argue Trotter has forfeited his equal
protection claim because he did not present it in his request for a
Franklin proceeding.
A constitutional right, including the right to equal
protection, may be forfeited in a criminal case by the failure to
make a timely assertion of the right in the lower court. (People v.
McCullough (2013) 56 Cal.4th 589, 593; People v. Nolasco (2021)
67 Cal.App.5th 209, 217.) However, we have discretion to
consider a claim on the merits if it presents a pure question of
law and it is unclear whether the appellant had the opportunity

4
to raise the argument below. (In re Sheena K. (2007) 40 Cal.4th
875, 887, fn. 7.) That is the case here. Trotter’s equal protection
challenge raises a pure question of law, and he did not have the
opportunity to argue the point below, because the court denied ex
parte his request for a Franklin proceeding and did not appoint
counsel.
We exercise our discretion and consider the merits of the
appeal.
II. Trotter Has Not Established Section 3051 Denies Him
Equal Protection of the Law
A. Section 3051
The Legislature enacted section 3051 in 2013 in response to
a series of cases that delineated constitutional limits on the
length of sentences for youth offenders.4 (See Stats. 2013,
ch. 312, § 1; Franklin, supra, 63 Cal.4th at p. 277.) The statute
gives certain youth offenders the opportunity for parole in their
15th, 20th, or 25th year of incarceration depending on the length
of sentence they are serving for their “controlling offense.”5
(§ 3051, subds. (a)(2)(B), (b)(1)–(4); Franklin, at p. 277.)
“As originally enacted, section 3051 only afforded a youth
parole eligibility hearing to juvenile offenders, not to young

4 We refer to youth offenders who committed their crimes
before the age of 18 as juveniles and those who committed their
crimes after the age of 18 but before the age of 26 as young
adults.
5“ ‘Controlling offense’ ” is the offense or enhancement for
which the sentencing court imposed the longest term of
imprisonment. (§ 3051, subd. (a)(2)(B).)

5
adults. [Citation.] It also excluded juveniles who were sentenced
to LWOP, since they were already eligible for resentencing under
section 1170. [Citation.] In the years that followed, however, the
Legislature expanded section 3051’s provisions on who is eligible
for a youth offender parole hearing, ‘recogniz[ing] that the
maturity process does not end at 18 and in many cases extends to
at least 25 years of age.’ ” (People v. Acosta (2021) 60 Cal.App.5th
769, 776.) Grounded in scientific research in neuroscience
showing areas of the brain affecting judgment did not develop
until the early-to-mid-20’s, the subsequent amendments
recognized that, like juveniles, young adults are not yet fully
matured, and have a lower degree of culpability and an increased
potential for rehabilitation compared to adult offenders. (In re
Jones (2019) 42 Cal.App.5th 477, 485.)
However, section 3051 continues to exclude from the youth
offender parole hearing process several categories of youth
offenders, including young adults sentenced to LWOP. In its
current form, “section 3051 ‘permit[s] the reevaluation of the
fitness to return to society of persons who committed serious
offenses prior to reaching full cognitive and emotional maturity,’
unless the person was ‘between 18 and 25 years of age when they
committed their offense [and] sentenced to [LWOP].’ [Citation.]
It therefore ‘distinguishes both between those who committed
their offenses under 18 years of age and those between 18 and
25 years of age, and between offenders 18 to 25 years of age
sentenced to prison terms with the possibility of parole and those
in the same age group who have been sentenced to [LWOP].’ ”
(People v. Acosta, supra, 60 Cal.App.5th at p. 777.)
After the enactment of section 3051, our Supreme Court
decided Franklin, which created a process for those offenders who

6
qualified for a youth offender parole hearing under section 3051
to preserve youth-related mitigation evidence. (Franklin, supra,
63 Cal.4th at pp. 283–284.) A Franklin proceeding gives “ ‘an
opportunity for the parties to make an accurate record of the
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board [of Parole Hearings (Board)],
years later, may properly discharge its obligation to “give great
weight to” youth-related factors (§ 4801, subd. (c)) in determining
whether the offender is “fit to rejoin society” ’ ” despite having
committed a serious crime ‘while he was a child in the eyes of the
law. (In re Cook (2019) 7 Cal.5th 439, 449.)
B. Equal Protection
“Both the Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
guarantee to all persons the equal protection of the laws. The
right to equal protection of the laws is violated when ‘the
government . . . treat[s] a [similarly situated] group of people
unequally without some justification.’ [Citations.] ‘The
California equal protection clause offers substantially similar
protection to the federal equal protection clause.’ ” (People v.
Jackson (2021) 61 Cal.App.5th 189, 195.)
“To succeed on an equal protection claim, appellants must
first show that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.”
(People v. Edwards (2019) 34 Cal.App.5th 183, 195.) This initial
inquiry is not whether persons are similarly situated for all
purposes, but whether they are similarly situated for purposes of
the law challenged. (People v. Morales (2016) 63 Cal.4th 399,
408.)

7
 If the appellant can establish a class of criminal defendants
is similarly situated to another class of defendants who are
sentenced differently, we look to determine whether there is a
rational basis for the difference. (People v. Edwards, supra,
34 Cal.App.5th at p. 195.) Under this highly deferential
standard, “equal protection of the law is denied only where there
is no ‘rational relationship between the disparity of treatment
and some legitimate governmental purpose.’ ” (People v. Turnage
(2012) 55 Cal.4th 62, 74.) While the realities of the subject
matter cannot be completely ignored, “[a] law will be upheld as
long as a court can ‘speculat[e]’ any rational reason for the
resulting differential treatment, regardless of whether the
‘speculation has “a foundation in the record,” ’ regardless of
whether it can be ‘empirically substantiated,’ and regardless of
whether the Legislature ever ‘articulated’ that reason when
enacting the law.” (People v. Love (2020) 55 Cal.App.5th 273,
287.) Thus, to raise a successful rational basis challenge, a party
must negate “ ‘ “every conceivable basis” ’ that might support the
disputed statutory disparity.” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) “It is both the prerogative and the
duty of the Legislature to define degrees of culpability and
punishment, and to distinguish between crimes in this regard.
[Citation.] Courts routinely decline to intrude upon the ‘broad
discretion’ such policy judgments entail. [Citation.] Equal
protection analysis does not entitle the judiciary to second-guess
the wisdom, fairness, or logic of the law.” (Turnage, at p. 74.)
C. Analysis
We independently review Trotter’s challenge to section
3051. (People v. Jackson, supra, 61 Cal.App.5th at p. 195.)

8
 1. Similarly Situated
Under section 3051, subdivision (h), Trotter is ineligible for
a Franklin proceeding because he was sentenced to LWOP for a
first degree special circumstance murder he committed at age 24.
On appeal, Trotter contends the trial court should treat him as
similarly situated to those who are eligible for a Franklin
proceeding.
We decline the invitation. Trotter is not similarly situated
to those eligible for a Franklin proceeding, because children are
constitutionally different from adults for purposes of sentencing
(see In re Williams (2020) 57 Cal.App.5th 427, 435, fn. 5) and a
young adult convicted of special circumstance murder is more
culpable and has committed a more serious crime than a young
adult convicted of nonspecial circumstance murder (see id. at
p. 435; In re Jones, supra, 42 Cal.App.5th at p. 481; People v.
Jackson, supra, 61 Cal.App.5th at p. 199).
2. Rational Basis
Even assuming arguendo juveniles and young adults
sentenced to LWOP are similarly situated, Trotter cannot show
section 3051’s exclusion of young adults sentenced to LWOP from
the youth offender parole hearing process lacks a rational basis.
(See People v. Acosta, supra, 60 Cal.App.5th at p. 779; People v.
Morales (2021) 67 Cal.App.5th 326, 347; In re Williams, supra,
57 Cal.App.5th at p. 436.)
First, section 3051 was enacted to comply with Supreme
Court precedent which articulated the constitutional limits on
sentencing young offenders. While LWOP sentences for juveniles
were held unconstitutional in Miller v. Alabama (2012) 567 U.S.
460, there is no corresponding case limiting LWOP sentences for

9
young adults. (People v. Morales, supra, 67 Cal.App.5th at p. 349
[recognizing LWOP sentences for youthful offenders remain
constitutional].) Thus, the distinction between LWOP prisoners
who committed their crimes as juveniles and those who did so as
young adults is rationally related to the state’s compelling
interest in complying with the Supreme Court’s jurisprudence.
(People v. Acosta, supra, 60 Cal.App.5th at pp. 777, 779–780;
Morales, at p. 349.)
Second, although the Legislature recognized cognitive
development and maturity continues into an individual’s mid-
20’s, this does not preclude it from including juvenile prisoners
serving LWOP sentences while excluding young adults from
section 3051’s youth offender parole hearing process. As the
People note, drawing the line at age 18 is “ ‘the point where
society draws the line for many purposes between childhood and
adulthood.’ ” (People v. Argeta (2012) 210 Cal.App.4th 1478,
1482; Roper v. Simmons (2005) 543 U.S. 551, 574.) Thus, the age
threshold is rational and not arbitrary. (People v. Jackson, supra,
61 Cal.App.5th at pp. 196–197; In re Jones, supra, 42 Cal.App.5th
at p. 483.)
Third, young adult offenders sentenced to LWOP may be
treated differently from young adult offenders serving non-LWOP
sentences because of “the severity of the crime committed.”
(People v. Acosta, supra, 60 Cal.App.5th at p. 780; see People v.
Jackson, supra, 61 Cal.App.5th at pp. 199–200.) Because the
Legislature has reserved LWOP sentences for only the most
“ ‘morally depraved and . . . injurious’ ” crimes, it could have
reasonably concluded young adults who commit those crimes
should be incarcerated for life despite their lack of maturity and
neurological development. (Acosta, at p. 780.)

10
 Trotter’s reliance on the concurring opinions in People v.
Jackson and In re Jones is unpersuasive. Concurring opinions
are not precedential authority. (People v. Franz (2001)
88 Cal.App.4th 1426, 1442.)
Published cases that have addressed whether section 3051
violates equal protection by excluding young adults sentenced to
LWOP have held that it does not. (See, e.g., People v. Jackson,
supra, 61 Cal.App.5th at p. 200; People v. Acosta, supra,
60 Cal.App.5th at p. 780; In re Jones, supra, 42 Cal.App.5th at
p. 483; People v. Morales, supra, 67 Cal.App.5th at p. 349; In re
Williams, supra, 57 Cal.App.5th at p. 436; In re Murray (2021)
63 Cal.App.5th 184, 192; People v. Sands (2021) 70 Cal.App.5th
193, 204.)
Accordingly, there is a rational basis for excluding young
adult LWOP offenders from the youth offender parole hearing
process, and Trotter’s equal protection challenge fails.
III. Trotter Has Not Established Section 4801 Entitles Him to a
Franklin Proceeding
Trotter contends even if section 3051 does not violate his
equal protection rights, the trial court still erred in denying his
request for a Franklin proceeding. Trotter argues section 4801,
subdivision (a) contemplates a Franklin proceeding to preserve
youth-related mitigation evidence to support his application to
the Governor for commutation of sentence.
Trotter’s contention raises a pure question of statutory
interpretation; thus, our review is de novo. (People v. Galvan
(2008) 168 Cal.App.4th 846, 852.)
Section 4801, subdivision (a) does not authorize a Franklin
proceeding. Rather, it states the Board may report to the
Governor the names of prisoners who, in the Board’s judgment,

11
should have their sentences commuted due to “good conduct, or
unusual term of sentence, or any other cause.” (§ 4801, subd. (a).)
A Franklin proceeding is derived from section 4801, subdivision
(c), which only requires the Board to consider youth-related
mitigating evidence that would be the subject of a Franklin
proceeding in evaluating a prisoner’s suitability for parole, not for
a commutation of sentence.
As such, the trial court correctly determined section 4801
did not authorize a Franklin proceeding to support Trotter’s
application for commutation.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

KNILL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J

*Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

12