Filed 2/27/23 P. v. Trotter CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B319451
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 Smerling, Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant Anthony Graham Trotter appeals from the trial
court’s order denying his motion to withdraw a guilty plea he
entered in 1988. Court-appointed appellate counsel filed an
opening brief raising no arguable issues on appeal and requested
an independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). After exercising our discretion to
conduct a review of the merits of the appeal, we affirm the trial
court’s order.
FACTUAL AND PROCEDURAL BACKGROUND1
In 1986, when Trotter was 24 years old, he broke into the
home of Charlene Hartsough 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 striking her head with a heavy candlestick.
He ransacked the home and took a video cassette recorder and
some jewelry. Trotter surrendered himself to the police before
the crime was discovered.
In 1988, Trotter pleaded guilty to first degree murder (Pen.
Code, § 187, subd. (a))2, robbery (§ 211), and residential burglary
(§ 459) in exchange for a sentence of life imprisonment without
the possibility of parole. As part of the plea agreement, Trotter
1
Our recitation of the background is derived from our earlier
nonpublished opinions in People v. Trotter (Oct. 29, 2003,
B160437) (Trotter I), People v. Trotter (Sept. 3, 2021, B309637)
(Trotter II), and People v. Trotter (Dec. 29, 2021, B310316)
(Trotter III), of which we take judicial notice on our own motion.
(Evid. Code, §§ 451, 459.)
2
All subsequent undesignated statutory references are to the
Penal Code.
2
also admitted the truth of special circumstance allegations that
he committed the murder during the commission of a robbery and
a burglary (§ 190.2, subd. (a)(17)), and that he personally used a
dangerous and deadly weapon (§ 12022, subd. (b)). During the
plea proceeding, when asked whether he had intentionally killed
Hartsough, Trotter stated: “I am pleading guilty, but I didn’t
intend to kill her.” (Trotter I, supra, B160437.) The trial court
accepted Trotter’s plea, found a factual basis supported the plea
and the admissions, and sentenced Trotter per the plea
agreement.
In 2001, the United States District Court for the Central
District of California conditionally granted Trotter’s petition for
writ of habeas corpus on the ground that his admission to the
special circumstance allegations “was not knowing and voluntary
based on the lack of an adequate factual basis.” (Trotter I, supra,
B160437.) The district court ordered that unless Trotter was
tried on, or admitted the truth of, the special circumstance
allegations, his sentence should be reduced. (Ibid.)
The special circumstance allegations were tried before a
jury in May 2002. The jury found the special circumstance
allegations true, and the trial court once again sentenced Trotter
to life in prison without the possibility of parole. Trotter
appealed and another panel of this division affirmed the
judgment. (Trotter I, supra, B160437.) Trotter petitioned for
review, and the California Supreme Court denied review in 2004.
In 2020, after the enactment of Senate Bill No. 1437,
Trotter petitioned for resentencing, and requested that the trial
court appoint counsel to represent him and vacate his murder
conviction. The trial court denied the petition ex parte based on a
finding that Trotter was the actual killer of Hartsough, and thus
3
not eligible for resentencing under sections 1172.6 and 189,
subdivision (e)(1). Trotter appealed the trial court’s decision.
Court-appointed appellate counsel filed an opening brief that
raised no arguable issues on appeal and requested an
independent review of the record pursuant to Wende, supra, 25
Cal.3d 436. After an independent review, a different panel of this
division affirmed the trial court’s order denying Trotter’s
resentencing petition. (Trotter II, supra, B309637.)
While Trotter’s appeal from the denial of his resentencing
petition was pending, he requested a hearing pursuant to People
v. Franklin (2016) 63 Cal.4th 261 to preserve youth-related
mitigation evidence for his application to the Governor for
commutation of sentence. The trial court denied the request ex
parte, concluding that Trotter was not entitled to a Franklin
hearing. Trotter appealed and another panel of this division
affirmed the trial court’s orders. (Trotter III, supra, B310316.)
In July 2022, Trotter filed a motion to withdraw the guilty
plea that he entered in 1988.3 Citing section 1016.7, subdivision
(a), Trotter argued that because the prosecutor did not consider
mitigating evidence of his age at the time of the offense, or the
trauma that he sustained during his childhood and young
adulthood, his guilty plea was not voluntary, knowing, or
intelligent. Trotter also argued in his motion that his guilty plea
should be set aside based on alleged ineffective assistance of trial
counsel, specifically counsel’s failure to bring to the prosecution’s
attention certain studies indicating that the brains of individuals
in their early to mid-twenties are not fully developed, thus
3
Although Trotter did not specify the counts as to which he
sought to withdraw his plea, this opinion assumes he made the
motion as to all three counts.
4
affecting their judgment. In support of his motion, Trotter
attached a declaration detailing the trauma he sustained as a
child, two psychological reports (dated May 1987 and February
1996) prepared at the requests of defense counsel, various news
clippings to support a showing of trauma, and copies of
certificates demonstrating successful completion of several
different rehabilitative classes while in prison.
In February 2022, the trial court denied Trotter’s motion to
withdraw his guilty plea. The trial court ruled: (1) section
1016.7, enacted during the 2021 legislative session, is not
retroactive and does not apply to a plea entered over 33 years
ago; (2) during the same legislative session, the Legislature
enacted section 1170.03, subdivision (a)(1), which provides
remedies for convicted individuals “suffering the abuses claimed
herein,” and none of those remedies are available to Trotter; and
(3) Trotter’s request is otherwise untimely in that he pled guilty
in 1988.
Trotter timely appealed from the trial court’s order and
lodged a request for a certificate of probable cause, which the
trial court granted.
In October 2022, court-appointed appellate counsel filed an
opening brief that raised no arguable issues on appeal and asked
this court to independently review the record pursuant to Wende,
supra, 25 Cal.3d 436. We notified Trotter that his appointed
counsel raised no issues on appeal and gave him until November
21, 2022, to submit additional briefing or a letter raising any
grounds for an appeal, or contentions, or arguments that he
wished us to consider. To date, we have received no response
from Trotter.
5
Exercising our discretion to conduct an independent review
of the merits of the appeal, we affirm the trial court’s orders.4
DISCUSSION
I. Trotter is not entitled to withdraw his plea pursuant
to section 1016.7
Effective January 1, 2022, section 1016.7, subdivision (a)
provides that in the “interest of justice” and “to reach a just
resolution during plea negotiations,” the prosecutor “shall”
consider in support of a mitigated sentence whether the
defendant has experienced “psychological, physical, or childhood
trauma,” or whether the defendant is or was a “youth at the time
of the commission of the offense,” and whether said trauma or
youth status was a contributing factor in the commission of the
alleged offense. (§ 1016.7, subd. (a)(1)–(2).) The statute defines
4
While this matter was pending on appeal, the California
Supreme Court issued its decision in People v. Delgadillo (2022)
14 Cal.5th 216, and held that the “procedures set out in Anders
[v. California (1967) 386 U.S. 738] and Wende do not apply to an
appeal from the denial of postconviction relief” under section
1172.6. (Delgadillo, at p. 226.) Thus, upon receiving an opening
brief from counsel declaring that there are no arguable issues on
appeal from an order denying relief under section 1172.6, the
appellate court may dismiss the appeal after sending the
defendant a copy of the brief and notice that unless a
supplemental letter or brief is filed by the defendant within 30
days, the appellate court may dismiss the matter. (Delgadillo, at
p. 232.) The appellate court, however, retains its discretion to
conduct an independent review of the record. (Ibid.) We need not
reach the issue of whether the procedures set forth in Delgadillo
apply more generally to appeals from orders denying
postconviction relief because we are exercising our discretion to
independently review the merits of Trotter’s appeal.
6
“youth” as any person under 26 years of age on the date the
offense was committed. (§ 1016.7, subd. (b).) The statute is also
silent on the issue of retroactivity.
Under In re Estrada (1965) 63 Cal.2d 740, 744–745,
ameliorative statutes that are silent on the issue of retroactivity
are presumed to apply retroactively to judgments of conviction
that are not yet final. Assuming, without deciding, that section
1016.7 is an ameliorative statute that would apply retroactively
under Estrada to judgments that are not yet final, section 1016.7
would not apply to the judgment in Trotter’s case, which has long
been final.
In his request for a certificate of probable cause made to
the trial court, Trotter argued that section 1016.7 should apply
retroactively to his case despite the finality of his judgment,
otherwise “it would be a denial of equal protection.” Courts,
however, have consistently recognized that there is a rational
basis for treating final and nonfinal judgments differently in the
context of retroactivity, thus foreclosing any equal protection
argument by Trotter. (See, e.g., People v. Alexander (2020) 45
Cal.App.5th 341, 347 [no equal protection violation in limiting
retroactive application of Sen. Bill No. 1393, which gives trial
courts discretion to strike prior felony enhancements, to nonfinal
judgments where rational basis is to “ ‘assur[e] that penal laws
will maintain their desired deterrent effect by carrying out the
original prescribed punishment as written.’ [Citation.]”]; People
v. Kennedy (2012) 209 Cal.App.4th 385, 398 [rational basis to
restrict retroactive application of ameliorative statute to nonfinal
judgments is to “optimize the deterrent effect of criminal
penalties by deflecting any assumption by offenders that future
acts of lenity will necessarily benefit them”].)
7
Retroactivity aside, section 1016.7 provides no basis to
nullify Trotter’s guilty plea. When a “ ‘defendant … admits his
guilt, he does so under the law then existing.’ ” (People v. Barton
(1971) 19 Cal.App.3d 990, 995.) “ ‘[H]e is bound by his plea and
his conviction unless he can allege and prove serious derelictions
on the part of counsel sufficient to show that his plea was not,
after all, a knowing and intelligent act.’ [Citation.]” (Id. at p.
995; see also Brady v. United States (1970) 397 U.S. 742, 757 [“A
defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely
penalties attached to alternative courses of action.”].) Here, at
the time Trotter’s plea was negotiated and entered in 1988, the
prosecution was not required to consider his age or evidence of
trauma he sustained in support of a mitigated sentence. The fact
that section 1016.7 now requires such consideration does not
serve as basis to invalidate or nullify Trotter’s plea.
Additionally, while Trotter faults his initial trial counsel for
failing to bring to the prosecution’s attention certain studies that
indicate the brains of individuals in their early to mid-twenties
are not fully developed, thus affecting their judgment, all the
studies referenced by Trotter (i.e., the studies by Stanford
University in 2009, the University of Alberta in 2011, and the
National Institute of Health in 2011) postdate the plea
negotiations by at least 20 years. Defense counsel could not have
been expected to present studies to the prosecution that did not
8
exist at the time, and thus there was no dereliction by counsel
that would serve as a basis for Trotter to withdraw his plea.5
In summary, the trial court did not err by concluding that
Trotter was not entitled to withdraw his guilty plea under section
1016.7.
II. The trial court correctly ruled that Trotter is
ineligible for relief pursuant to section 1172.1
As an alternative basis for denying Trotter’s motion to
withdraw his guilty plea, the trial court cited section 1170.03
(now section 1172.1)6, and ruled that none of the remedies
available under that statute are available to Trotter.
A court may, on its own motion, recall a defendant’s
sentence and resentence him within 120 days of his commitment
date, or at any time upon the recommendation of the Secretary of
the Department of Corrections and Rehabilitation, the Board of
Parole Hearings, or the district attorney of the county in which
the defendant was sentenced. (§ 1172.1, subd. (a)(2).) Upon
recalling and resentencing under this provision, the trial court
5
For this same reason, we reject Trotter’s argument that he
received ineffective assistance of counsel on this point. Failing to
cite to studies that do not exist at the time certainly does not fall
below an objective standard of reasonableness. (See generally
People v. Dennis (1998) 17 Cal.4th 468, 540 [ineffective assistance
of counsel claim requires a showing that counsel’s performance
fell below an objective standard of reasonableness under
prevailing professional norms].)
6
Effective June 30, 2022, section 1170.03 was renumbered to
section 1172.1 with no change in text. (Stats. 2022, ch. 58, § 9.)
For consistency and to ensure that our citations are to the most
current version of this statute, we will refer only to section 1172.1
for the remainder of this opinion.
9
“shall apply the sentencing rules of the Judicial Council and
apply any changes in law that reduce sentences or provide for
judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1172.1, subd. (a)(2).)
Here, more than 120 days have passed since Trotter’s
commitment in 1988, and thus the court could not have recalled
Trotter’s sentence on its own motion. Additionally, there is no
recommendation from either the Secretary of the Department of
Corrections and Rehabilitation or the Los Angeles County
District Attorney’s Office to recall Trotter’s sentence. And no
such recommendation would come from the Board of Parole
Hearings as Trotter is not eligible for parole. Thus, the trial
court correctly determined that Trotter was ineligible for relief
pursuant to section 1172.1.
10
DISPOSITION
The trial court’s order denying Anthony Graham Trotter’s
motion to withdraw his guilty plea is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
NGUYEN (KIM), J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11