People v. Trotter CA2/3

Filed 9/3/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B309637
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.
No appearance for Plaintiff and Respondent.
—————————
Anthony Graham Trotter appeals from an order summarily
denying his petition for resentencing pursuant to Penal Code1
section 1170.95. We affirm.
FACTUAL AND PROCEDURAL 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. 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 ransacked the house and took a video
cassette recorder and Hartsough’s pearls. Trotter turned himself
in to the police before the crime was discovered. (People v. Trotter
(Oct. 29, 2003, B160437) [nonpub. opn.] at p. 1 (Trotter I).)
In 1988, pursuant to a negotiated disposition in exchange
for a life sentence without the possibility of parole, Trotter
pleaded guilty to first degree murder in violation of section 187,
subdivision (a), with allegations the murder was committed while
he was engaged in the commission of a burglary and while he was
engaged in the commission of a robbery, both special
circumstances pursuant to section 190.2, subdivision (a)(17), and
with the allegation he personally used a deadly and dangerous
weapon within the meaning of section 12022, subdivision (b), to
residential burglary in violation of section 459, and to robbery in
violation of section 211. At the time of the plea, Trotter stated
1 All undesignated statutory references are to the Penal
Code.
2
that he did not intentionally kill Hartsough. (Trotter I, supra,
B160437 at p. 1.)
The trial court sentenced Trotter to life without the
possibility of parole.
Trotter filed a petition for writ of habeas corpus in the
United States District Court for the Central District of
California. The district court granted the petition and ordered a
new trial on the special circumstance allegations including the
element of intent to kill unless on remand Trotter admitted the
truth of the allegations. (Trotter I, supra, B160437 at p. 1.)
A jury found the special circumstance allegations true. The
trial court sentenced Trotter to life without the possibility of
parole. We affirmed the judgment. (Trotter I, supra, B160437 at
p. 1.)
In 2020, Trotter petitioned for resentencing under section
1170.95, requesting that the court vacate his murder conviction.
He also asked the court to appoint counsel to represent him. In
his petition, Trotter did not deny that he was the actual killer.
The court denied the petition ex parte based on a finding
that Trotter was the actual killer and actual killers are not
eligible for resentencing under sections 1170.95 and 189,
subdivision (e)(1).
Trotter appealed.
DISCUSSION
After review of the record, Trotter’s court-appointed counsel
filed an opening brief that raised no issues and requested that we
conduct an independent review of the record pursuant to People
v. Wende (1979) 25 Cal.3d 436. Trotter’s counsel advised him
that he had 30 days to submit a supplemental brief with any
additional contentions or argument and that he may request this
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court to relieve present counsel. Trotter did not file a
supplemental brief.
As an initial matter, Trotter’s counsel acknowledges that
recent decisions in the Courts of Appeal have held that the
procedures mandated by People v. Wende, supra, 25 Cal.3d 436 do
not apply from the denial of a petition for resentencing under
section 1170.95. In People v. Cole (2020) 52 Cal.App.5th 1023,
Division Two of this district held that, when a defendant fails to
file a supplemental brief on his or her own, we may dismiss the
appeal as abandoned. However, the issue of what procedures
apply when appointed counsel determines that an appeal from an
order denying postconviction relief lacks arguable merit, is
currently pending before the Supreme Court in People v.
Delgadillo, review granted February 17, 2021, S266305. Without
deciding whether Cole is correct in part or whole, we exercise our
discretion and independently review the record under People v.
Wende, supra, 25 Cal.3d 436. When “an appointed counsel files a
Wende brief in an appeal from a summary denial of a section
1170.95 petition, a Court of Appeal is not required to
independently review the entire record, but the court can and
should do so in the interests of justice.” (People v. Flores (2020)
54 Cal.App.5th 266, 269.)
While the appeal before us was pending, our Supreme
Court decided People v. Lewis (2021) 11 Cal.5th 952, 957 holding
that, when a petitioner files a facially sufficient petition under
section 1170.95, the court shall appoint counsel, if requested, and
determine whether the petitioner has made a prima facie case for
relief. The court “should not make credibility determinations or
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 974.) “ ‘However, if the record,
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including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the
petitioner.” ’ ” (Id. at p. 971.)
Trotter filed a facially valid petition, asserting that (1) a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) he 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 of first degree or
second degree murder; and (3) he could not be convicted of first
degree or second degree murder because of changes to sections
188 and 189 made effective January 1, 2019. (§ 1170.95,
subds. (a)(1)–(3).) Trotter also requested the court to appoint
counsel, which was not done. This was error under People v.
Lewis, supra, 11 Cal.5th 952, but harmless.
We review whether the court’s failure to appoint counsel
was prejudicial under the standard set forth in People v. Watson
(1956) 46 Cal.2d 818. To establish prejudice, Trotter would have
to “ ‘demonstrate there is a reasonable probability that in the
absence of the error he . . . would have obtained a more favorable
result.’ ” (People v. Lewis, supra, 11 Cal.5th at p. 974.) “More
specifically, a petitioner ‘whose petition is denied before an order
to show cause issues has the burden of showing “it is reasonably
probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.” ’ ” (Ibid.)
Here, notwithstanding the court’s failure to appoint
counsel, there is no possibility Trotter is entitled to relief under
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section 1170.95. To qualify for resentencing under section
1170.95, the petitioner must show that he or she could not be
convicted of first degree or second degree murder because of
changes to sections 188 or 189 made effective January 1, 2019, in
other words, changes made by Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437). (§ 1170.95, subd. (a).) Trotter
cannot show that the changes made by Senate Bill 1437 would
have any effect on his conviction.
While Trotter was convicted under a theory of felony
murder, at the time of the commission of the crime in 1986,
Carlos v. Superior Court (1983) 35 Cal.3d 131, 153 to 154 had
held that intent to kill was an element of a section 190.2,
subdivision (a)(17) special circumstance. In 1987, People v.
Anderson (1987) 43 Cal.3d 1104, 1138 to 1139 overruled Carlos
and concluded that intent to kill is not an element of a felony
murder special circumstance if the defendant is the actual killer.
Because Trotter committed the offenses after Carlos but before
Anderson, the intent requirement applied in his case. “As to
offenses committed after Carlos but before Anderson . . . due
process and ex post facto principles demand that the intent-to-kill
requirement apply to any felony-murder special circumstance
charged in connection with such offenses.” (People v. Johnson
(1993) 6 Cal.4th 1, 44.)
Senate Bill 1437 amended section 189 to provide that a
person can be liable of felony murder only if (1) the “person was
the actual killer”; (2) the person, with an intent to kill, was an
aider or abettor in the commission of murder in the first degree;
or (3) the “person was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e), as amended by Stats. 2018, ch. 1015, § 3.) As the sole
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perpetrator of the crime, Trotter was the actual killer and the
jury found that he acted with the intent to kill Hartsough. Thus,
the enactment of Senate Bill 1437 would have no effect on
Trotter’s conviction, and he is not entitled to relief under section
1170.95 as a matter of law.
Our review of the entire record shows that no arguable
issues exist, and Trotter’s counsel has fully complied with his
responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109–110;
People v. Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
HILL, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Superior Court of Santa Barbara County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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