Opinion
B160437.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GRAHAM TROTTER, Defendant and Appellant.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General and A. Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
On April 23, 1986, defendant and appellant Anthony Graham Trotter murdered Charlene Hartsough while burglarizing her home. In 1988, Trotter pleaded guilty to murder (Pen. Code, § 187, subd. (a))[], 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 the victim, Trotter stated, "I am pleading guilty, but I didnt intend to kill her." The trial court accepted Trotters plea and found a factual basis supported the plea and the admissions.
All further undesignated statutory references are to the Penal Code.
Prior to Trotters commission of the instant crimes, Carlos v. Superior Court (1983) 35 Cal.3d 131, 153-154, had held that intent to kill is an element of a section 190.2, subdivision (a)(17) special circumstance. In 1987, after the murder, People v. Anderson (1987) 43 Cal.3d 1104, 1138-1139, 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. However, because Trotter committed the offenses after Carlos but before Anderson, the intent requirement applied in his case. (People v. Johnson (1993) 6 Cal.4th 1, 44 ["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."].)
On April 3, 2001, the United States District Court for the Central District of California conditionally granted Trotters petition for writ of habeas corpus on the ground his admission of the truth of the special circumstance allegations "was not knowing and voluntary based on the lack of an adequate factual basis," presumably because Trotter had denied intending to kill the victim.[] The federal district court ordered that unless Trotter was tried on or admitted the truth of the special circumstances allegations, his sentence should be reduced.
The record on appeal contains only the federal district courts judgment and order, which do not further articulate that courts rationale for its conditional grant of Trotters petition.
The special circumstances allegations were tried to a jury in Los Angeles County Superior Court in May 2002. The jury found the special circumstances allegations true and the trial court again sentenced Trotter to life in prison without the possibility of parole.
Trotter now contends: (1) the trial courts response to a question posed by the jury was inadequate and violated his right to a reliable jury determination; and (2) his sentence of life in prison without the possibility of parole amounts to cruel and unusual punishment. We affirm.
FACTUAL BACKGROUND
1. Prosecutions evidence.
Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11), the evidence established the following facts. The victim, Charlene Hartsough, and her husband, Christopher Hartsough,[] lived in Pasadena. During the morning of April 23, 1986, sometime after Christopher left for work, Trotter entered the Hartsough home by breaking a living room window. Charlene, who usually attended college in the morning, apparently returned home while Trotter was in the middle of the burglary. Trotter killed her by strangling her with a telephone cord and bludgeoning her head with a large, heavy metal and ceramic candlestick. Trotter ransacked the house and took a video cassette recorder and Charlenes pearls.
For ease of reference, and with no disrespect, we will hereinafter refer to the Hartsoughs by their first names.
Trotter turned himself in at the Pasadena police station before the murder was discovered. He stated that he believed there was a warrant out for his arrest and he wished to surrender. He had blood on his shoes and arm. Trotter was arrested on an unrelated outstanding warrant for driving under the influence. He had a cocaine pipe among his possessions when arrested, but appeared calm and had no trouble communicating with officers. He did not appear to be under the influence of drugs.
Christopher discovered Charlenes body at approximately 1:00 p.m. Trotter was thereafter connected to the murder.
2. Defense evidence.
Trotter contended that he lacked the intent to kill due to the fact he had been using cocaine and was intoxicated when he committed the crimes. In support of that theory, Trotter called clinical psychologist Adrienne Davis, who testified that she examined Trotter in May 1987. Trotter informed Davis that he had used cocaine before the murder, but had run out of the drug. He intended to burglarize the Hartsough home to obtain money to purchase more drugs. According to Trotter, he tried to find a house where no one was home. However, Charlene returned home while he was burglarizing the house and a verbal and physical altercation ensued. When Charlene attempted to telephone police, Trotter strangled her with the telephone cord and struck her several times with the candlestick.
Tests indicated Trotters I.Q. was on the borderline between mild retardation and low-average mental functioning. The testing process revealed underlying emotional instability, anger, and difficulty coping with life challenges, and a possible organic problem that contributed to his low intelligence. Davis believed Trotters I.Q. score was "somewhat of an underestimate of his abilities. His expressive language was a lot better in talking to him than he came out in testing." Trotter employed simplistic thinking but had the ability to "organize his world in the way that most people do," and there was no evidence he suffered from "thought disorders," i.e., an inability to perceive his environment and understand the reactions and statements of other persons. Davis diagnosed Trotter as having a continuous substance abuse disorder and antisocial personality disorder, "which basically means a person who has difficulty following the rules, laws and so on of society," and who demonstrates "a pervasive pattern of disregard for and violation of the rights of others . . . ."
Dr. Alex Stalcup, the medical director of the New Leaf Treatment Center, reviewed Daviss report on Trotter, as well as reports prepared by two other psychiatrists and the police reports regarding the murder. Stalcup opined that Trotters statements to Davis indicated he had used cocaine in combination with PCP for several days prior to the crimes. Stalcup testified that when addicts come out of a cocaine high, they are overwhelmed with the need to obtain more of the drug, operate in robotic states, and lose control of their actions. He opined that Trotters actions were consistent with behavior by a drug addict desperate to obtain money or property in order to obtain more drugs. He further opined that it is not always readily apparent that an addict is under the influence of drugs.
DISCUSSION
1. The trial courts response to the jurys question was sufficient.
The trial court instructed the jury that an element of the special circumstance allegations was that Trotter "had the specific intent to kill." (CALJIC No. 8.81.17, CALJIC No. 3.31.) It further instructed that the jury was to consider evidence of Trotters intoxication when deciding whether he had the requisite specific intent.[] (CALJIC No. 4.21.)
CALJIC No. 4.21 provided: "In the special circumstances alleged in this case, namely a murder during the commission of a robbery and murder during the commission of a residential burglary, a necessary element is the existence in the mind of the defendant of the specific intent to kill another human being. [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required [specific intent]. [¶] If from all the evidence you have a reasonable doubt whether the defendant formed that [specific intent], you must find that [he] did not have that[specific intent]."
During deliberations, the jury sent three questions to the trial court. As relevant here, one of the queries was, "What is the legal definition of `intent to kill. " The trial court had the jury brought into the courtroom, read the question, and stated, "My response is this: there is no definition of intent to kill beyond its common meaning in the English language. So I would ask that you use your understanding of those three words, intent to kill, in determining whether or not there was, indeed, an intent to kill. [¶] Theres no mystery about it, and theres no further definition. I dont want to be confusing you or be devious, but there really is no further definition. [¶] `Intent to kill means just what those words indicate. So you apply your understanding of the English language in interpreting that phrase, intent to kill." Defense counsel did not object or suggest further response.
Trotter argues that the trial courts response was inadequate and misleading. We disagree. First, Trotter has waived this claim. Trotter did not object or request further response by the court. He has thus failed to preserve the issue for appeal and "may be held to have given tacit approval of the trial courts decision." (People v. Boyette (2002) 29 Cal.4th 381, 430.) " ` "Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 149.) Because the trial courts response did not misstate the law, as we discuss infra, waiver principles apply.
However, because Trotter contends his counsel was ineffective for failing to object to the trial courts response or request further clarification, we address the merits of his claim. Section 1138 imposes upon the trial court "the duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985.) "If, however, `"the original instructions are themselves full and complete, the court has discretion under . . . section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information." [Citation.]" (Ibid.) It is not necessary to instruct jurors on the meaning of words in common usage which are presumed to be within the understanding of a person of ordinary intelligence. (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Ramsey (2000) 79 Cal.App.4th 621, 630.)
Trotter fails to point us to any legal authority suggesting that the phrase "intent to kill" has a technical, legal meaning apart from the common usage of the words, nor does he cite authority requiring a court to provide a different definition of "intent to kill" than what was given here. Trotter urges, however, that " `[i]ntent to kill does have a specialized legal meaning in this case because voluntary intoxication may negate specific intent, and that is not a concept that would be obvious to a layperson." He complains that the trial court should have answered the jurys question by informing it that the intent to kill element "must be evaluated in the context of the evidence of [his] drug-induced intoxication and, if the jury believed that evidence," it was required to consider whether the intoxication impaired his ability to form a specific intent. Instead, he suggests the trial courts response negated CALJIC No. 4.21, the instruction discussing the relevance of voluntary intoxication to specific intent.
We are unpersuaded. "When reviewing a supposedly ambiguous jury instruction, ` "we inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 766; People v. Frye (1998) 18 Cal.4th 894, 957.) "Moreover, instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury[,]" (People v. Holt (1997) 15 Cal.4th 619, 677), rather than by reference to " ` " `parts of an instruction or from a particular instruction. " [Citations.] [Citation.]" (People v. Smithey, supra, 20 Cal.4th at pp. 963-964.)
Here, the instructions that were given to the jury provided the precise guidance that Trotter suggests. The jury was informed that, if it believed Trotter was intoxicated, it was required to consider that fact when evaluating the intent element. The jury was instructed to consider the instructions as a whole. (CALJIC No. 1.01.) Contrary to Trotters argument, we see nothing in the record supporting the conclusion that the trial courts response would have caused the jury to ignore CALJIC No. 4.21. The courts response in no way suggested that CALJIC No. 4.21 was superfluous or inapplicable. We conclude there was no reasonable likelihood that the jury misunderstood the courts statement as Trotter suggests.
2. Trotters sentence of life in prison without the possibility of parole is not cruel and unusual punishment.
In a sentencing memorandum filed after the jurys verdict, Trotter urged the trial court, pursuant to People v. Dillon (1983) 34 Cal.3d 441 (Dillon), to reduce his murder conviction to first degree murder without special circumstances, second degree murder, or voluntary manslaughter, with a corresponding reduction in his sentence. The trial court declined to do so, finding that Trotters case was distinguishable from Dillon. It also noted that Trotter had already agreed to the LWOP sentence as part of his plea bargain, and concluded that the sentence did not amount to cruel or unusual punishment.
Trotter complains that his sentence constitutes cruel and unusual punishment and the trial court erred by failing to exercise its authority to reduce the sentence pursuant to Dillon, supra, 34 Cal.3d 441, to life with the possibility of parole. Even apart from the question of the effect of Trotters earlier plea bargain, in which he accepted an LWOP sentence, his contention lacks merit.
The statutory penalty for murder with special circumstances is death or life imprisonment without the possibility of parole. (& sect; 190.2; People v. Mora (1995) 39 Cal.App.4th 607, 614.) A trial court has no statutory discretion to strike a special circumstance finding to reduce the punishment. (§ 1385.1; People v. Mora, supra, at pp. 614-615.) However, a statutorily required punishment may violate the constitutional prohibition on cruel or unusual punishment if it is grossly disproportionate to a particular defendants individual culpability. (People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Mora, supra, at p. 615.) The Legislature defines crimes and prescribes punishments, but the final judgment as to whether a sentence exceeds constitutional limits rests with the courts. (People v. Felix, supra, at p. 999.) A court therefore has the authority to prevent imposition of a statutorily mandated punishment if it would violate the constitutional prohibition on cruel or unusual punishment. (Ibid.; People v. Mora, supra, at p. 615.) Nevertheless, "[b]ecause choosing the appropriate penalty is a legislative weighing function involving the seriousness of the crime and policy factors, the courts should not intervene unless the prescribed punishment is out of proportion to the crime." (People v. Felix, supra, at pp. 999-1000.) Reduction of sentence under Dillon is the exception, not the rule. (People v. Mora, supra, at p. 615; People v. Felix, supra, p. 1000.)
Whether a punishment is cruel or unusual is a question of law, but we review the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358; People v. Mora, supra, 39 Cal.App.4th at p. 615.) A punishment violates the California Constitution if, " `although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. " (People v. Dillon, supra, 34 Cal.3d at p. 478; In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) In conducting a Dillon analysis, we consider the nature of the offense and the offender, with particular regard to the degree of danger the defendant poses to society. (People v. Dillon, supra, at p. 479; People v. Mora, supra, at p. 618; People v. Felix, supra, 108 Cal.App.4th at p. 1000.) In particular, we evaluate the totality of the circumstances surrounding the commission of the current offense, including the defendants motive, manner of commission of the crime, the extent of the defendants involvement, the consequences of his or her acts, and his or her individual culpability, including factors such as age, prior criminality, personal characteristics, and state of mind. (People v. Felix, supra, at p. 1000; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
In Dillon, supra, 34 Cal.3d 441, an unusually immature 17-year-old high school student and his friends attempted to rob a marijuana farm. While there, Dillon heard shotgun blasts and feared two of his friends had been shot by an armed man guarding the crop. The guard approached Dillon, who was unable to retreat or hide, and it appeared to Dillon that he pointed a shotgun at him. Believing he was about to be shot, Dillon panicked and fatally shot the guard. Dillon had no prior record. The jury expressed reluctance and unease at finding him guilty of first degree felony murder, and the trial court opined that the evidence did not support a first degree murder conviction outside the felony murder context. The trial court stated that Dillon was not a dangerous person likely to cause future harm. Dillons companions all received "petty chastisements" for their roles in the incident. (Id. at pp. 482-486, 488.) Given these facts, the California Supreme Court found the punishment unconstitutionally cruel and unusual, and ordered that Dillon be punished as a second degree murderer. (Id. at pp. 488-489.)
Trotter is not comparable to the Dillon defendant. Trotter was not a juvenile high school student, but a 24-year-old adult. Despite the fact that Davis testified Trotters intellectual abilities were on the borderline between mild retardation and low-average mental functioning, she also testified that his test scores appeared to be "somewhat of an underestimate of his abilities," he had the ability to "organize his world in the way that most people do," and there was no evidence he suffered from thought disorders. (See People v. Felix, supra, 108 Cal.App.4th at pp. 998, 1001 [20-year-old defendant was described as having low average intellectual ability; court nonetheless concluded he was not comparable "to the unusually immature 17-year-old defendant in Dillon"].) Unlike Dillon, Trotter had a criminal record. He had been convicted of trespass, driving under the influence, grand theft person, receiving stolen property, and petty theft. The probation report indicated that Trotter had been on probation since he was 17 years of age. Unlike in Dillon, the jury did not express reluctance to convict Trotter, and the trial court did not opine that the evidence supported only something less than a first degree murder verdict. In contrast to the Dillon trial courts view that Dillon did not present a future danger to the community, Trotters probation report stated that he "is a serious threat to the community." (See People v. Mora, supra, 39 Cal.App.4th at p. 618.)
The other Dillon prong, the nature of the offense, likewise does not support a conclusion that Trotters LWOP sentence is unconstitutional. Trotter burglarized the Hartsough residence to support his drug habit. During the burglary, he personally committed a heinous murder. His actions were extremely vicious. He bludgeoned an innocent woman in her own home with a heavy metal and ceramic candlestick that was approximately a foot wide and three or four feet tall. His attack crushed portions of her face, nose, eyes, skull, and cheekbones, caused extensive fractures at the base of the skull, and knocked out one of her teeth. He also strangled her with a telephone cord, leaving a ligature mark on her neck and causing hemorrhaging. Both the blunt force trauma and the strangulation were fatal wounds. The jury found Trotter intended to kill Charlene. Unlike in Dillon, Trotter did not face a shotgun-toting man guarding an illicit marijuana crop; he faced an unarmed woman whom he surprised in her own home. Unlike in Dillon, there is no evidence that Trotter believed he was about to be shot. Assuming arguendo that Trotter panicked when Charlene arrived home during the burglary, there is no evidence he was prevented from simply fleeing the premises.
Trotter argues that he has undergone a drug rehabilitation program in prison. He fails to cite evidence for this proposition. In any event, Trotters purported rehabilitation, completion of his General Education Degree, and his expressed remorse for the murder, while laudable, do not suffice to make his sentence unconstitutionally cruel or unusual.
Instead, the instant case is more similar to People v. Guinn (1994) 28 Cal.App.4th 1130, than to Dilllon. In Guinn, a 17-year-old defendant was given an LWOP sentence for beating to death a victim during a senseless robbery. Guinn argued that his LWOP sentence was disproportionate because he had been intoxicated with alcohol and PCP, was convicted of murder because of the harsh effects of the felony murder rule, had a limited prior record, was a minor at the time of the murder, the crime lacked sophistication, and the LWOP sentence meant he would spend the rest of his life in prison. (Id. at pp. 1145-1146.) Guinn rejected these arguments, finding the circumstances of the crime and of the defendant fully justified the LWOP sentence. (Id. at p. 1146.) The court stated it was "unwilling to hold that such a legislative choice is necessarily too extreme, given the social reality of the many horrendous crimes, committed by increasingly vicious youthful offenders, which undoubtedly spurred the enactment" of the LWOP requirement. (Id. at p. 1147.)
The same is true here. Trotter committed the most serious crime possible, murder, in an extremely vicious fashion, during a robbery carried out to support his drug habit. There is nothing disproportionate about requiring Trotter to spend the rest of his life in prison.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J. KITCHING, J.