FACTS
Frandsen and several others held Benjamin Wertzberger and Adar Ne'eman prisoner at Shane Huang's house on December 2, 2002, because they believed the victims had stolen $ 6,000 worth of marijuana from Huang. Frandsen and Huang were the only ones in the house with Wertzberger and Ne'eman when they were killed on December 2 or 3. Their bodies were found buried in the desert months later. The testimony from eyewitnesses and from Frandsen himself regarding the events leading up to the killings are loosely consistent and presented below.
The Perpetrators and The Victims
Frandsen is a former Marine with extensive martial arts training. Nick Turner is Frandsen's roommatе and is also a former Marine. In 2002, Frandsen became friends with Huang, who grew marijuana for sale in his home in Canoga Park.
On November 29, 2002, Ne'eman, who was Wertzberger's childhood friend, arrived for a visit from Israel. Wertzberger, Ne'eman, and Kharboutli went to a nightclub together the following night.
Huang subsequently told Frandsen and Turner he suspected Wertzberger had taken the marijuana because he was the only other person who knew about the marijuana operation. Huang said he was uncomfortable having the marijuana plants in the house because he did not feel safe there.
The Events of December 2 and 3
The next morning, on December 2, Huang asked Frandsen and Turner to help clean and move the marijuana plants. When Frandsen initially said no, Huang offered to forgive the $ 1,000 loan in exchange for their help. They agreed to come that afternoon.
That day, Pistone was working on a plumbing job at Kharboutli's house while Huang was there, complaining about the stolen marijuana. At the time, they suspected the culprit was Wertzberger. Huang arranged to meet Wertzberger at Kharboutli's home, but Huang went home when Wertzberger failed to arrive because he had a "bad feeling." Fifteen minutes after leaving, Huang called Kharboutli and told him he "caught" Wertzberger "back at the Desoto house ripping him off again" and that he "had him at knifepoint." Huang found Ne'eman sitting in a car parked outside, and forced him into the house at knifepoint. Kharboutli went to Huang's house and Pistone followed an hour later.
Pistone arrived at Huang's house around 3:00 p.m., and saw Wertzberger and Ne'eman sitting on a couch in the living room with Huang standing over them holding a sword. Huang was "furious," venting about how he gave Wertzberger money and a placе to live, which he repaid by ripping off Huang. Huang threatened, "My boys will be here shortly to take care of this."
Frandsen and Turner arrived at Huang's house soon thereafter. Pistone testified Frandsen, who was wearing leather gloves, immediately stood in front of Wertzberger and Ne'eman, and repeatedly pounded his fist into the palm of his other hand. Although they had previously appeared calm, Pistone observed Wertzberger and Ne'eman to be afraid when Frandsen and Turner arrived. Huang repeatedly interrogated Wertzberger about what he had done with the marijuana. Wertzberger vacillated between admitting he had taken
At one point, Huang retrieved a suitcase from Wertzberger's vehiсle, which he searched for cash. When he found none, he took cash from the victims' wallets and Pistone saw him give what appeared to be thousands of dollars to Frandsen. Huang eventually concocted a plan to contact their families in Israel if Wertzberger and Ne'eman decided to go to the police. Frandsen suggested they obtain collateral from the victims or their families. Huang and Frandsen obtained the telephone numbers and addresses of the families from Wertzberger and Ne'eman, then left the house together. Turner, Kharboutli, and Pistone remained at the house with Wertzberger and Ne'eman.
Huang and Frandsen met with Ora Vossen, a friend from Israel who speaks Hebrew. Huang told her that someone had broken into his residence and stolen from him. Vossen used Huang's cellular telephone, and an international calling card, to call Ne'eman's sister and Wertzberger's mother to verify the victims' addresses in Israel. Vossen was outside of the restaurant waiting for a cab when she overheard Huang say to Frandsen, "I don't want to dirty my hands." Frandsen responded, "I'll do it."
Frandsen and Huang then went to an apartment in Venice, where Huang's friend lived. Huang asked his friend what he should do with "a couple [of] kids" he was holding who had broken into his house and stolen his plants. Huang's friend advised him to "beat the shit out of [them]" and then "let them go." Huang appeared to agree.
When Frandsen and Huang returned to the house, it appeared to Pistone that the issue had been resolved and that they were going to release Wertzberger and Ne'eman. Frandsen and Huang left the house a second time to get sandwiches. When they returned, they also brought Home Depot bags, a shovel, and some rope. Pistone asked Kharboutli what was going on. He responded that "they were just going to scare them" to obtain money or get the marijuana back.
Pistone and Kharboutli then left to process marijuana at Kharboutli's home. As they were leaving, Pistone observed Huang binding the victims' legs with duct tape. Turner left soon after the other two did.
Frandsen's Admissions
Frandsen told Turner he killed Ne'eman with a blow to the neck. He also told at least three other friends about the murders. On December 5, 2002, Frandsen met with his ex-girlfriend, Lyndsay Devore, with whom he had a close relationship. He told her there had been a "scuffle" at
Frandsen told Devore that he and Huang had buried the victims' bodies in the desert, then drove to Las Vegas and used the victims' credit cards to make it seem as if they were still alive. A few weeks later, Frandsen retracted his story and told Devore he had sent the victims back home to Israel.
Towards the end of December 2002, Frandsen told his friend, Sam Edmonson, something bad and life altering had occurred. Frandsen said, there "may be some people that nobody is looking for anymore." When Edmonson visited in March 2003, Frandsen told him that he and Huang had been at Huang's residence watching television when Frandsen got up to use the restroom. He encountered two men in the hallway; one had a gun, and the other had a knife. Frandsen "reacted how he was trained to react," and used his martial arts training to break the neck of the man with the gun, and to turn the other man's knife back into his own chest, killing both men. Frandsen was crying when he told Edmonson about it.
Frandsen also told Edmonson Huang did not want to call the police because of his marijuana operation, so they buried the bodies in the desert and left the victims' car in Las Vegas. Frandsen said he was afraid of Huang and thought he might kill his family. Nevertheless, Frandsen subsequently introduced Huang to Edmonson.
In February 2003, Frandsen told a childhood friend, Rogelio Flores, that he had killed two men. Frandsen explained that he had been at a friend's
The Investigation
On December 7, 2002, Wertzberger's car was impounded by Las Vegas authorities after having been parked at an expired meter for several days. The car was in a part of the city known for prostitution and drug use, and it was left unlocked with the keys in the ignition. The vehicle was full of luggage and DJ equipment. The vehicle contained Ne'eman's wallet, identification, and an expired plane ticket to Israel.
In the interim, Wertzberger's and Ne'eman's families became concerned when they could not be reached. Ne'eman's mother called Wertzberger's cell phone, but an unknown male answered. She asked to speak with Wertzberger or Ne'eman, but the man stated that they had gone "to the canyon for two hours." She then checked credit card and bank accounts that she shared with her son, and saw that the credit card had last been used on December 3, 2002, at a clothing store and an Outback Steakhouse in Las Vegas, and that a transaction at a Best Buy store had been rejected for being over the card's credit limit.
Ne'eman's mother contacted the police departments for Los Angeles and Las Vegas, but each declined to investigate the disappearance. The families hired a private investigator, and the mothers flew to the
FBI agents attempted to interview Kharboutli in March of 2003, but he did not give them a statement at that time. He subsequently moved to the Czech Republic in April or May of 2003. He was interviewed by the authorities in 2016.
On April 8, 2003, FBI agents searched Huang's home and discovered the two hidden grow rooms, but the plants had been removed. They recovered marijuana, pills, bongs, mushrooms, cash, and a sawed-off shotgun, but did not take a metal sword and martial arts weaponry.
In August of 2003, FBI agents interviewed Pistone, who initially denied any knowledge of the victims' disappearance. A few days later, Pistone called
Huang was arrested on September 12, 2003. His home was searched a second time during which agents recovered from the residence $ 10,000 in cash, a .22-caliber rifle, a .22-caliber handgun, .22-caliber ammunition, a dart gun, a sword, a folding knife, a telescopic baton, martial arts weaponry, duct tape, and two shovels.
The Interview with Frandsen
After the deaths of Wertzberger and Ne'eman, Frandsen moved to Yellowstone National Park. He waived his Miranda
Frandsen initially denied knowing anything about the marijuana operation or the disappearance of Wertzberger and Ne'eman. He also attempted to divert attention away from Huang and himself by telling the FBI agents he met Wertzberger at a club on the night of either December 2 or 9. According to Frandsen, Wertzberger borrowed Huang's cell phone to make a call with a calling card. He said Wertzberger was with a man and a woman, both in their mid-twenties. Frandsen also told the FBI he had heard that some DJ had supposedly stolen from the Chinese mafia, and he thought Wertzberger's disappearance could be related to that. Frandsen said he had met Wertzberger only that one time and thought he was a "weasel."
When the agents advised Frandsen they had witnesses and telephone records connecting him to the disappearance of Wertzberger and Ne'eman, Frandsen admitted he, Huang, and the others held Wertzberger and Ne'eman captive at Huang's house. His account of the events loosely corresponded to Pistone's, as described above. However, he told them Turner left almost immediately after they arrived at Huang's house, and that he and Huang left Wertzberger and Ne'eman alive in Las Vegas.
Frandsen said he offered to let Wertzberger and Ne'eman go, telling them,
The agents disbelieved Frandsen and demanded to know where the victims' bodies were loсated, encouraging him to bring closure to the victims' families. The agents told Frandsen they did not think he intended to kill anyone, and that he should not "take the fall" for Huang, who would likely implicate Frandsen.
Frandsen then changed his story, stating, "if they are dead, I think I have a clue where - within a square mile where they are." Frandsen asked for a deal, expressing concern for the criminal consequences if he told the agents where he thought the bodies were located. The agents told Frandsen they could not make any promises to him, but that it would be helpful to him if he cooperated.
Frandsen then changed his story yet again. He told the agents that he and Huang had in fact left Wertzberger and Ne'eman alive at a motel in Las Vegas. However, Frandsen said he and Huang went on a later trip to Las Vegas and that while there, Huang told Frandsen that he needed some time alone. As a result, Frandsen left Huang at a campsite for an hour or two. Frandsen told the agents that he wanted a specific deal in order to provide them with more precise information about the location where he and Huang had stopped. The agents took Frandsen into custody.
After searching Frandsen's cabin, the agents recovered a pair of pants that he had purchased with Ne'eman's credit card, and a CD of Wertzberger's music that Frandsen had taken from Wertzberger's car. When the agents were preparing to transport Frandsen from Yellowstone National Park, he told them that the location where he and Huang had stopped was near a blue building with an internet address listed on a billboard.
Discovery of the Bodies
On September 18, 2003, FBI agents searched the area where Frandsen had indicated the bodies of Wertzberger and Ne'eman might be located. They
An autopsy showed Ne'eman had injuries to his fourth cervical vertebra and a fracture to the mid-neck. His thyroid cartilage had also been crushed. Because the bodies were badly decomposed, it was impossible to tell whether Ne'eman had any ligature marks or hemorrhaging. The forensic pathologist opined that Ne'eman's injuries were more consistent with a blow to the throat than with strangulation, but there were injuries to two sides of his neck, and those injuries were not sustained from the same blow. She concluded Ne'eman died as a result of blunt-force injuries to the neck.
Prior Proceedings
A 2004 information charged Frandsen, Huang, and Turner with the murder of Wertzberger and Ne'eman (counts 1-2; Penal Code, § 187, subd. (a).)
The judgment against Frandsen was reversed for instructional error. ( People v. Frandsen,
Current Proceedings
On November 16, 2016, the People filed an amended information charging Frandsen with the involuntary manslaughter of Wertzberger (count 1; § 192, subd. (b)) аnd second degree murder of Ne'eman (count 2; § 187 subd. (a) ).
Frandsen testified on his own behalf. His version of events prior to the departure of Turner, Pistone, and Kharboutli was generally consistent with the other witnesses' testimony. Frandsen testified that when he and Turner arrived at Huang's house on December 2, Huang met them outside and told them that "the idiots came back." Huang wanted to intimidate them into returning his marijuana, so he told Frandsen and Turner to "stand there and look tough." Frandsen went inside the home and punched his hand repeatedly into a gloved fist in front of Wertzberger and Ne'eman, while Huang, Pistone, and Kharboutli angrily demanded the return of the marijuana. Frandsen testified Pistone spit on Wertzberger, threw a soda can at him, and slapped the men. Wertzberger urinated on himself in fear.
After five or ten minutes, Frandsen left to prepare the marijuana plants for transport while Turner stayed in the living room to mediate. Turner encouraged the men to give Huang the marijuana back if in fact they had stolen it. Huang and Pistone discussed beating up Wertzberger and Ne'eman. Huang stated that he wanted to kill the men, but everyone objected. Kharboutli asserted, "If you kill them, you must kill me, too."
Huang then instructed Pistone to tie up Wertzberger and Ne'eman, and Pistone bound their hands and feet with duct tape. Wertzberger and Ne'eman were subsequently untied to allow them to eat the
Frandsen came up with a plan to have Wertzberger's and Ne'eman's relatives send money to Huang. Ne'eman agreed to have his family send $ 5,000 to Huang from Israel.
Once they obtained the contact information for the families in Israel, Frandsen and Huang went to see Vossen, who used Huang's cell phone to call the families. Frandsen did not hear what was said on the call. When Frandsen and Huang left Vossen, they went to see Huang's friend in Venice.
When they returned to Huang's residence, it seemed to Frandsen that Huang had calmed down and was no longer angry. Frandsen and Huang told Wertzberger and Ne'eman that they were going to let them go, but they would follow them to the freeway to make sure that they did not return.
After Turner, Pistone, and Kharboutli left, Wertzberger and Ne'eman spoke to each other in Hebrew. Wertzberger then got up and walked toward the
Ne'eman stood up and Frandsen looked towards the bathroom. He heard glass breaking and turned to see Ne'eman rushing toward him with a large bong raised above his head. Frandsen threw up an elbow, which struck Ne'eman in the throat and caused him to fall to the ground. Since Ne'eman was incapacitated, Frandsen moved toward the bathroom and saw Wertzberger dead on the floor. When Frandsen returned to the living room, he saw Huang holding a plastic bag over Ne'eman's face. Ne'eman took one final breath and died.
Huang devised a plan to bury the victims. Frandsen went along with the plan because he "didn't know what else to do" and did not think the authorities would believe he did not participate in the murders. At trial, Frandsen acknowledged Ne'eman may have died because of the blow to the throat, and that Huang's act of placing a bag on his head might have been "redundant."
Before they left to bury the bodies, Huang told Frandsen, "I don't want to think of you as a threat to me," to which Frandsen responded, "What the hell is that supposed to mean?" Huang replied, "I don't want to have to call your mom too." While Frandsen was digging the grave in the desert, Huang came up to him and opened his shirt to display a pistol in his waistband. Huang stated, "I thought about it, but you're never going to say anything anyway and I can't drive two cars back at once."
After they buried the bodies, Frandsen and Huang drove to Las Vegas and used Ne'eman's credit cards to purchase clothing at a retail store and a meal at Outback Steakhouse to make it seem as if the men were still alive. Frandsen and Turner then helped Huang move the marijuana plants out of his residence.
Frandsen testified Huang was no longer his friend, but admitted he exchanged Christmas gifts with him weeks later, traveled to Miami with him in February 2003, met him in a nightclub in San Francisco, and continued to socialize with him in June 2003. Huang called Frandsen's mother to wish her a happy Mother's Day, which Frandsen considered to be a threat.
The jury found Frandsen guilty on both counts. He was sentenced to 19 years to life, comprised of 15 years to life on count 2 plus four consecutive years on count 1. In addition to various fees and fines, Frandsen was ordered to pay victim restitution in the amount of $ 11,749.20. The trial court set a future hearing date for the parties to discuss other possible restitution. Frandsen timely appealed.
DISCUSSION
I. The Second Degree Felony-Murder Rule is Not Unconstitutionally Vague
Relying on Johnson v. United States (2015) --- U.S. ---- [
A. The Supreme Court's Decision in Johnson
In Johnson , the U.S. Supreme Court declared a portion of the federal Armed Career Criminal Act (ACCA) to be unconstitutionally vague. Under the ACCA, a defendant convicted of certain firearm offenses faces more severe punishment if he has three or more previous convictions for a "serious drug offense" or a "violent felony." (
The italicized portion of the statute is known as the residual clause of the ACCA and was the subject of the high court's ire. ( Johnson,
In Johnson, the defendant pleaded guilty to being a felon in possession of a
The court identified two features of the residual clause that conspire to make it unconstitutionally vague: (1) the clause "leaves grave uncertainty about how to estimate the risk posed by a crime" because it ties the judicial assessment of risk to a judicially imagined "ordinary case" of a crime, "not to real-world facts or statutory elements;" and (2) the clause simultaneously "leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony." ( Johnson, supra, 135 S.Ct. at pp. 2557-2558.)
As to the first area of uncertainty, the court explained that "assessing 'potential risk' seemingly requires the judge to imagine how the idealized ordinary case of the crime subsequently plays out," which involves a speculative enterprise detached from the statutory elements. ( Johnson,
According to the court, "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces
The high court rejected the contention that its holding would create constitutional doubt in criminal laws that use terms like "substantial risk," "grave risk," and "unreasonable risk." ( Johnson,
B. Second Degree Felony Murder in California
"The felony-murder rule makes a killing while committing certain felonies murder without the necessity of further examining the defendant's mental state. The rule has two applications: first degree
The California Supreme Court recently explained that the felony murder rule imputes the requisite malice for a murder conviction to those who
In assessing whether a crime is inherently dangerous to human life, a court looks to the elements of the felony in the abstract, not at the particular facts of the case. ( Phillips, supra,
In People v. Ordonez (1991)
C. The Second Degree Felony-Murder Rule Relies on a Statutory Elements Approach Approved Under Johnson
Frandsen attempts to apply Johnson 's criticism of the ACCA residual clause to the California second degree felony-murder rule. He contends that, like the ACCA residual clause, the second degree felony-murder rule is unconstitutionally vague because it precludes consideration of real world facts showing how the individual offender committed the crime. (See Phillips, supra,
A close reading of Johnson illuminates the critical difference between how a court assesses crimes under the residual clause and the second degree felony-murder rule. As discussed above, Johnson held the core infirmity with the ACCA residual clause is that it anchors risk to hypothetical facts. That is, the residual clause impermissibly "ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements ." ( Johnson, supra,
Likewise, the court in People v. White (2016)
The second degree felony-murder rule at issue in this case utilizes the second alternative approach identified in Johnson -a statutory elements evaluation of risk. Such an approach avoids the uncertainties identified by the Johnson court as fatal to the ACCA residual clause. This is because when a court evaluates the statutory elements of the crime, it is not required to "imagine" what an "ordinary" crime would look like. Neither is a defendant required to guess at whether his conduct is dangerous to life. Rather, the court must determine, by examining the elements of the crime, whether it could possibly be committed without creating a substantial risk that someone will be killed. (See Howard, supra, at p. 1135,
A compаrison of how courts assess crimes under the ACCA and the second degree felony-murder rule illustrates the significant differences between the
In stark contrast, the court in People v. Hansen (1994)
It is clear from the Hansen court's reasoning that a statutory elements approach does not present the same speculative enterprise as required under the ACCA residual clause. Indeed, the Johnson court indicated its holding properly extends only to a statute like the ACCA that contains an internally-contradictory phrase like " ' "fire-engine red, light pink, maroon, navy blue , or colors that otherwise involve shades of red."...' " ( Johnson , supra ,
Frandsen next contends the jury was improperly instructed on second degree felony murder premised on kidnapping for extortion because the instruction misstated the law. We find his argument meritless. As an initial matter, Frandsen has fоrfeited this claim, having failed to object or seek a clarifying instruction on this issue at trial. ( People v. Guerra (2006)
The court instructed the jury with CALCRIM No. 541A, which defines the crime of second degree felony murder when the defendant committed the fatal act. Frandsen challenges the inclusion of the following sentence in that instruction: "The crime of kidnapping for extortion continues until a defendant has reached a place of temporary safety." Frandsen contends this sentence misstates the law because kidnapping for extortion is complete when a person seizes a victim with the intent to extort. Not so.
People v. Cavitt (2004)
The court explained, "Our reliance on the continuous-transaction doctrine is consistent with the purpose of the felony-murder statute, which 'was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker, and this court has viewed it as obviating the necessity for, rather than requiring, any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] before the homicide was completed.' " ( Cavitt, supra,
This holding comports with the California Supreme Court's well-established rule that "the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety ...." ( People v. Barnett (1998)
Frandsen's reliance on People v. Anderson (1979)
We are also not persuaded by Frandsen's claim that the challenged sentence should only be given if the facts indicate the homicide happened while the defendant was fleeing. As Cavitt explained, the continuous-transaction doctrine makes unnecessary " 'any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] before the homicide was completed.' " ( Cavitt, supra,
III. Substantial Evidence Supports the Conviction for Kidnapping for Extortion
Frandsen contends the evidence is insufficient to support the conviction for kidnapping for extortion. Specifically, he claims there is no evidence he aided and abetted the crime. We disagree.
" 'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the
Under subdivision (a) of section 209, "[a]ny person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away another person by any means whatsoever with intent to hold or detain, or who holds or detains, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, or any person who aids or abets any such act, is guilty of a felony ...." Unlike other forms of kidnapping, as defined in subdivision (b) of section 209, kidnapping for extortion under subdivision (a) does not require asportation as an element of the crime. ( People v. Mayfield (1997)
To establish liability under an aiding and abetting theory, the prosecution is required to prove the defendant knew of the perpetrator's unlawful purpose, and intended to and did aid, facilitate, promote, encourage, or instigate the commission of the crime. ( People v. Prettyman (1996)
In People v. Cooper (1991)
We are persuaded by the analysis in Cooper to find substantial evidence supports a finding Frandsen aided and abetted to kidnap the victims for extortion. It is irrelevant that Frandsen learned of the kidnapping well after Huang had initiated the crime. Like the hypothetical rape victim in Cooper, Wertzberger and Ne'eman would not agree that the crime was completed once it was initially committed (i.e., when Huang ordered the victims into the house and held them captive). Further, as we discussed at length above, "the crime of kidnapping continues until such time as the kidnapper releases or otherwise disposes of the victim and [the defendant] has reached a place of temporary safety ...." ( Barnett, supra,
Given Barnett and Burney , the crime of kidnapping for extortion was in progress when Frandsen and Turner arrived at Huang's house on December 2. Even assuming Frandsen had no idea Ne'eman and Wertzberger were at the house when they arrived, it is undisputed Frandsen subsequently participated in keeping them caрtive. He immediately stood in front of them and pounded his fist into his palm as an act of intimidation. By his own testimony, Frandsen guarded Ne'eman while Huang followed Wertzberger to the bathroom later that night. Moreover, Turner testified Frandsen came up with a plan to contact Ne'eman's family and demand $ 5,000 to let the victims go, then sought to carry out that plan with Huang. Similarly, Huang went through Ne'eman's suitcase and wallet after Frandsen arrived. The offense of kidnapping for extortion was not complete at the time Frandsen chose to participate in it. Thus, ample evidence supports a finding Frandsen aided and abetted kidnapping for extortion.
IV. There Was No Prosecutorial Misconduct
Frandsen next contends the prosecutor committed prejudicial misconduct during her closing argument. We disagree.
A. The Prosecutor's Statements
Frandsen takes issue with the following statements made at closing by the prosecutor:
"Now, I will submit to you, ladies and gentleman, that during the discussion of this case and the evidence that was presented, and whether there is
"And it's unfortunate that Ben Wertzberger gets an involuntary, but that's what's charged. But anyway you look at it, he's guilty of murder of both those victims."
"Ladies and Gentleman, this defendant is guilty of two first degree murders. And we got him charged with one second and one invol[untary manslaughter]. If you think that he's got anything less than a
"It's really a murder but it's charged as an invol[untary manslaughter], and whatever benefit of the doubt the defense wants to give this defendant, it's already in the charges like I told you when I argued this case to you on Friday."
Frandsen acknowledges he failed to object to the remarks at the time they were made. ( People v. Samayoa (1997)
B. Applicable Law
To establish entitlement to relief based upon a claim of ineffective assistance of counsel, the burden is on the defendant to show "(1) trial counsel failed tо act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." ( People v. Lewis (1990)
"When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the
To prevail on a claim of prosecutorial misconduct based on the prosecutor's remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. ( Shazier, supra ,
Frandsen interprets the prosecutor's remarks to mean the charges against him were a result of prosecutorial leniency and that any reasonable doubt that was due to him was incorporated in the charges. We do not read them that way and as a result, do not find that trial counsel provided ineffective assistance in failing to object.
A review of the prosecutor's remarks shows she told the jury she had not only proved the charged offenses beyond a reasonable doubt, but that the evidence showed Frandsen's true culpability for the deaths of Wertzberger and Ne'eman was even greater than that with which he was chargеd. When she explained the different forms of liability-as a perpetrator, an aider and abettor, and a coconspirator-she acknowledged what would have seemed apparent to the jury: that the evidence supported a murder charge against Frandsen for the death of Wertzberger rather than just an involuntary manslaughter charge. To that end, she told the jury that "it's not about whether we agree with the charges. The charges are the charges." Her remarks did not imply the charges were reduced or leniency was extended.
Additionally, the trial court instructed the jury as to the proper standard of proof by giving CALCRIM No. 220 on reasonable doubt. Nothing in the record suggests that any juror did not understand or did not follow the court's instructions. ( People v. Hajek (2014)
V. Victim Restitution Was Properly Imposed
Frandsen relies on double jeopardy principles to argue the trial court abused its discretion by imposing victim restitution in an amount greater than was previously awarded after his two other trials, and which was not ordered to be paid jointly and severally with Huang.
At sentencing, the trial court imposed victim restitution of $ 11,749.20, the amount the prosecution indicated was paid for burial and funeral expenses. Defense counsel indicated he had no objection to the amount of restitution, which he said had previously been ordered to be paid jointly and severally with Huang. However, he objected to newly claimed losses for investigators hired by the Ne'eman family to search for their son. Over defense counsel's objection, the trial court awarded restitution in the amount of $ 16,549 to the Ne'eman family.
We find Frandsen's double jeopardy argument at odds with well-established legal authority. As Frandsen acknowledges, " People v. Harvest (2000)
VI. Frandsen Has Forfeited His Challenge to the Assessments and the Restitution Fine
At sentencing, the trial court imposed court operations assessments totaling $ 60 (§ 1465.8, subd. (a)(1)), court facilities assessments totaling $ 60 ( Gov. Code, § 70373 ), and a $ 10,000 restitution fine (§ 1202.4, subd. (b)).
Frandsen, however, concedes his trial counsel failed to object to the assessments or the restitution fine at sentencing. As a result, Frandsen has forfeited this challenge. ( People v. Avila (2009)
Frandsen asserts there was no forfeiture because he рresents a purely legal claim that can be raised for the first time on appeal. Contrary to his assertion, he does not present a pure question of law based on undisputed facts. ( People v. Yeoman (2003)
Frandsen further contends his failure to object at sentencing is excused because Dueñas represents a dramatic and unforeseen change in the law governing assessments and restitution fines. As a result, the law was against him at the time of his sentencing hearing and any objection to the assessments and restitution fine would have been futile. Not so. Section 1202.4 expressly contemplates an objection based on inability to pay.
Section 1202.4, subdivision (b), requires a court to impose a restitution fine in an amount not less than $ 300 and not more than $ 10,000 in every case where a person is convicted of a felony unless it finds compelling and
Here, the trial court imposed the maximum restitution fine. Frandsen was thus obligated to object to the amount of the fine and demonstrate his inability to pay anything more than the $ 300 minimum. Such an objection would not have been futile under governing law at the time of his sentencing hearing. (§ 1202.4, subds. (c)-(d); Avila, supra,
We likewise reject Frandsen's contention that any objections to the assessments imposed pursuant to section 1465.8 and Government Code section 70373 would have been futile. Although both statutory provisions mandate the assessments be imposed, nothing in the record of the sentencing hearing indicates that Frandsen was foreclosed from making the same request that the defendant in Dueñas made in the face of those same mandatory assessments. Frandsen plainly could have made a record had his ability to pay actually been an issue. Indeed, Frandsen was obligated to create a record showing his inability to pay the maximum restitution fine, which would have sеrved to also address his ability to pay the assessments. Given his failure to object to a $ 10,000 restitution fine based on inability to pay, Frandsen has not shown a basis to vacate assessments totaling $ 120 for inability to pay.
More fundamentally, we disagree with Frandsen's description of Dueñas as "a dramatic and unforeseen change in the law ...." (Cf. People v. Castellano (Mar. 26, 2019, B286317)
Dueñas was foreseeable. Dueñas herself foresaw it. The Dueñas opinion applied "the Griffin - Antazo - Bearden analysis," which flowed from Griffin v. Illinois (1956)
Dueñas applied law that was old, not new. We therefore stand by the traditional and prudential virtue of requiring parties to raise an issue in the trial court if they would like appellate review of that issue.
DISPOSITION
The abstract of judgment is corrected to include an additional $ 16,549 victim restitution award. The superior court shall issue an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur:
GRIMES, J.
WILEY, J.
Notes
Miranda v. Arizona (1966)
All further section references are to the Penal Code unless otherwise specified.
Senate Bill 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, amends section 188, subdivision (a)(3) to read: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." This statutory amendment brings into question the ongoing viability of second degree felony murder in California. The parties have not raised this issue, however, and we need not address it because it does not appear the Legislature intended for this amendment to apply retroactively. (§ 3 [" 'No part of [the Penal Code] is retroactive, unless expressly so declared.' "]; People v. Brown (2012)
This case presents an issue of first impression. In In re White (order to show cause issued Jul. 26, 2017, S233265), the California Supreme Court issued a return to Division Two of the Fourth District Court of Appeal in a case involving second degree felony murder premised on the illegal manufacture of methamphetamine. The court ordered "[t]he Secretary of the Department of Corrections ... to show cause ... why petitioner is not entitled to a reversal of his second degree felony murder conviction because the reasoning set forth in [Johnson, supra,
The trial court noted the restitution fine and assessments were to be affixed as they were in 2002. The current assessment under section 1465.8 is $ 40 per conviction. (§ 1465.8, subd. (a)(1).)