People v. Trotter

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GRAHAM TROTTER, Defendant and Appellant.

B310316

California Court of Appeals, Second District, Third Division

December 29, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. A570665 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.

KNILL J. ^[*]

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 Code^[1] 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 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 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 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 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 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.)

If the appellant can establish a class of criminal defendants is similarly situated to another class of defendants who are...