People v. Trotter CA2/3 ( 2023 )

Filed 5/31/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, B323194
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.
Anthony Graham Trotter, in pro. per.; Leonard J. Klaif,
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 requesting
an independent review of the record pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Trotter
subsequently filed a supplemental brief with this court. After
considering the arguments raised in Trotter’s supplemental brief,
and exercising our discretion to conduct an independent review of
the record, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
The instant matter is Trotter’s fifth appeal before this
court. We have recited the underlying factual and procedural
background in prior nonpublished opinions, most recently in
People v. Trotter (Feb. 27, 2023, B319451) (Trotter IV). We
incorporate our prior recitations of the facts and relevant
procedural background as noted below.1
I. Proceedings Prior to the Instant Appeal
A. Underlying offense, plea, and initial post-plea
proceedings
“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
1 We also draw background 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).
2
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 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
2All subsequent undesignated statutory references are to
the Penal Code.
3
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.” (Trotter IV, supra, B319451.)
B. Petition for resentencing under section 1170.95
In 2020, Trotter filed a petition for resentencing under
former section 1170.95.3 The trial court denied the petition and
Trotter appealed. 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 People
v. Wende (1979) 25 Cal.3d 436 (Wende). After an independent
review, we affirmed the trial court’s order denying Trotter’s
resentencing petition. (Trotter II, supra, B309637.)
C. Request for hearing pursuant to People v.
Franklin
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 an application for commutation of
sentence. The trial court concluded Trotter was not entitled to a
Franklin hearing. Trotter appealed and we affirmed the trial
court’s order. (Trotter III, supra, B310316.)
3 Effective June 30, 2022, former section 1170.95 was
renumbered to section 1172.6 with no change in text. (Stats.
2022, ch. 58, § 10.)
4
D. First motion to withdraw guilty plea
In early 2022, Trotter filed a motion to withdraw his 1988
guilty plea. Citing newly enacted section 1016.7, subdivision (a),4
Trotter argued that because the prosecutor did not consider
mitigating evidence of his age or his childhood trauma, his guilty
plea was invalid. Trotter also alleged ineffective assistance of
counsel based on trial counsel’s failure to bring specific scientific
studies to the prosecution’s attention. (Trotter IV, supra,
B319451.)
In February 2022, the trial court denied Trotter’s motion to
withdraw his guilty plea, concluding that section 1016.7 was not
retroactive. It also held that section 1170.03,5 which it cited as
providing remedies for individuals who had suffered abuses
similar to those claimed by Trotter, was not applicable. Finally,
it denied the motion as untimely. (Trotter IV, supra, B319451.)
Trotter appealed.
In October 2022, court-appointed appellate counsel filed an
opening brief raising no arguable issues on appeal and requesting
our independent review of the record pursuant to Wende, supra,
4 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).)
5 Effective June 30, 2022, section 1170.03 was renumbered
to section 1172.1 with no change in text. (Stats. 2022, ch. 58,
§ 9.)
5
25 Cal.3d 436. In February 2023, we affirmed the trial court’s
orders. Exercising our discretion to conduct an independent
review of the record, we concluded that Trotter was not entitled
to withdraw his plea pursuant to section 1016.7, and the trial
court correctly ruled Trotter was ineligible for relief under former
section 1170.03. (Trotter IV, supra, B319451.)
III. Current Appeal
In May 2022, Trotter filed a document in the trial court
titled “Motion for miscarriage of justice due to ineffective
assistance of trial counsel that render[s] guilty plea not
knowingly[,] not intelligently[,] and not voluntarily entered
pursuant to Cal. Const., Art. VI § 13 and Cal. Pen. Code § 1404.”
Trotter argued trial counsel gave him incorrect information
regarding the prosecution’s evidence, leading him to plead guilty
instead of taking his case to trial.
The trial court deemed Trotter’s filing to be a motion to
withdraw the guilty plea and denied the motion. The court
reasoned that Trotter previously filed a similar motion in 2008,
and there was “ample evidence” that Trotter was the killer,
including his prior admissions that he killed Hartsough. The
trial court thus rejected Trotter’s claim that his plea was not
knowing and voluntary. In July 2022, the trial court
reconsidered Trotter’s May 2022 motion, again deemed it a
motion to withdraw his guilty plea, and denied it a second time,
issuing an identical order.
This appeal followed. Trotter requested and was granted a
certificate of probable cause.
In February 2023, court-appointed appellate counsel filed
an opening brief that raised no arguable issues. Counsel asked
this court to independently review the record pursuant to
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Delgadillo. Trotter filed a supplemental brief arguing he received
ineffective assistance of trial counsel, raising the same
arguments as in his motion below.
DISCUSSION
I. Review Pursuant to Delgadillo
In Delgadillo, our Supreme Court 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,
even if the defendant has a state-created right to the
appointment of counsel for that appeal.” (Delgadillo, supra, 14
Cal.5th at p. 226.) However, if the defendant files a
supplemental letter brief, we are “required to evaluate the
specific arguments presented in that brief and to issue a written
opinion.” (Id. at p. 232.) Trotter has filed a supplemental brief in
this case.
II. The Trial Court Lacked Jurisdiction to Consider
Trotter’s Untimely Motion to Withdraw His Plea
Trotter’s brief raises several issues regarding his trial
counsel’s alleged ineffective assistance of counsel. Trotter argues
trial counsel “fabricated” the prosecution’s evidence against him
to coerce him to plead guilty. He states that while counsel told
him there was physical evidence against him, that evidence did
not exist or was falsified by the police. Trotter also argues his
attorney had a history of misconduct, pointing to a state bar
complaint by a former client. Finally, Trotter asserts that trial
counsel should have informed him of a plea agreement in another
case involving the same prosecutor. For these reasons, Trotter
contends his guilty plea was involuntary and unknowing. He
asks us to reverse the trial court’s order, and to order the
withdrawal of his guilty plea.
7
We can find no error in the trial court’s order because
Trotter’s motion to withdraw his plea was untimely.
Section 1018 expressly limits the time to bring a motion to
withdraw a plea. It provides, in relevant part: “On application of
the defendant at any time before judgment or within six months
after an order granting probation is made if entry of judgment is
suspended, the court may, and in case of a defendant who
appeared without counsel at the time of the plea the court shall,
for a good cause shown, permit the plea of guilty to be withdrawn
and a plea of not guilty substituted. . . . This section shall be
liberally construed to effect these objects and to promote justice.”
(§ 1018, italics added.) Under section 1018, a motion to withdraw
a plea that is not filed before judgment is entered, and where the
judgment is not suspended, is untimely. (People v. Williams
(2011) 199 Cal.App.4th 1285, 1288 [“Applying the plain language
of the statute, appellant does not fall within the first category
because he did not file his motion to withdraw prior to entry of
judgment. He falls outside the ambit of the second category
because entry of judgment was not suspended. Appellant’s
motion therefore was not timely”].)
Trotter pleaded guilty in 1988. Judgment was not
suspended. The trial court sentenced Trotter twice, most recently
in 2002 after he was tried by jury. (Trotter I, supra, B160437.)
Trotter filed the underlying motion to withdraw his plea 20 years
later, in May 2022. His motion was therefore untimely under
section 1018 and the trial court lacked jurisdiction to grant it.
(See People v. Miranda (2004) 123 Cal.App.4th 1124, 1126
(Miranda) [where judgment was suspended under section 1018,
“a trial court does not have jurisdiction to grant such a motion
after the six-month period has passed”]; People v. Superior Court
8
(Rodas) (2017) 10 Cal.App.5th 1316, 1324.) Trotter’s motion was
properly denied.6
Finally, we have exercised our discretion to conduct an
independent review of the record and conclude there are no
arguable issues on appeal. (Delgadillo, supra, 14 Cal.5th at
p. 230 [although defendant not entitled to Wende review,
appellate court has discretion to conduct its own independent
review of the record]; see also Wende, supra, 25 Cal.3d at p. 441.)
6 We note that once the time to file a section 1018 motion
has expired, a claim of ineffective assistance of counsel may be
raised by a petition for writ of habeas corpus. (People v.
Miranda, supra, 123 Cal.App.4th at p. 1134, citing People v.
Gallardo (2000) 77 Cal.App.4th 971, 983.)
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DISPOSITION
The trial court’s order denying Trotter’s motion to
withdraw his guilty plea is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
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