Filed 4/4/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

BENJAMIN FRANDSEN,

Defendant and Appellant.

 B280329

 (Los Angeles County

 Super. Ct. No. LA046248)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Eric Harmon, Judge. Affirmed as modified.

Marilee Marshall, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Shawn McGahey Webb, Zee Rodriguez and 

Noah P. Hill, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________
2

Benjamin Frandsen appeals from a judgment sentencing

him to 19 years to life for second degree murder and 

involuntary manslaughter. He contends his convictions should 

be reversed because the second degree felony-murder rule is 

unconstitutionally vague, there was insufficient evidence to 

support his conviction, and the prosecutor committed misconduct. 

He also contends the trial court erred when it failed to consider 

his ability to pay before imposing two assessments and a 

restitution fine. He further argues the trial court improperly 

increased the amount of victim restitution. We correct a clerical 

error in the abstract of judgment, but otherwise affirm the 

judgment.

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 roommate and is also a 

former Marine. In 2002, Frandsen became friends with Huang, 

who grew marijuana for sale in his home in Canoga Park. 

Wertzberger lived with Huang in the summer of 2002, and took 

care of the marijuana plants in exchange for a place to stay. 
3

The house had a door hidden by a mirror in the hallway leading 

to the bedrooms where the marijuana “grow rooms” were

maintained. The grow rooms were sealed off from the rest of the 

house. Jamil Kharboutli was also involved in Huang’s marijuana 

operation. 

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. 

The next day, Huang asked Frandsen to come over because 

someone had broken into his house. He claimed $6,000 worth of 

dried marijuana had been taken from a closet in one of the grow 

rooms. Huang initially suspected the perpetrator was Joseph 

Pistone, who had done some plumbing work in the grow rooms. 

Pistone denied having anything to do with the break-in, and

Huang apologized. Huang loaned Frandsen and Turner $1,000 to 

help them pay rent, because he was grateful for their help. 

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 
4

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 place 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 the marijuana and 

denying it. Pistone acknowledged he participated in the 

interrogation and spat on Wertzberger at one point. 

Huang was unsure what he was going to do

with Wertzberger and Ne’eman. Huang was concerned that if he

let the men go, they would steal from him again or call the police
5

and report the grow operation. Huang raised the possibility of

killing Wertzberger and Ne’eman and leaving their car in Las

Vegas. Pistone and Kharboutli objected to any plan to kill 

Wertzberger and Ne’eman, but Pistone saw Frandsen nod his

head, appearing to agree with Huang. 

At one point, Huang retrieved a suitcase from

Wertzberger’s vehicle, 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 
6

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.

The parties stipulated that Wertzberger and Ne’eman were

killed on or between December 2 and December 3, 2002. A few 

days later, Kharboutli and Pistone went to Huang’s residence. 

Huang, Frandsen, and Turner were all present. When Pistone 

entered the room, Frandsen got him in a headlock, to 

demonstrate something to the other men. Pistone pushed 

Frandsen away. Kharboutli asked Huang what happened to

Wertzberger and Ne’eman. Huang replied, “We let them go.”

He then stated, “But they’re missing-in-action.”

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 Huang’s house and “two men 

wound up dead.” She asked Frandsen how they died. Frandsen 
7

made a motion with his arms signifying strangulation or 

asphyxiation. When Devore observed, “[i]t was like a snake 

killing a mouse,” Frandsen agreed. Devore believed Frandsen 

had killed one of the victims because he had rushed at Frandsen. 

She told Frandsen to turn himself in and claim self-defense. 

Frandsen shook his head no.

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. 
8

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 residence when two men broke in

and attacked him. Frandsen said one man came at him with a 

knife, which he turned against his attacker to stab him. 

Frandsen said the second man rushed at Frandsen, and he placed 

the man in a headlock and “broke” the man’s neck. Frandsen told

Flores that he had acted in self-defense. He seemed “distraught”

to Flores. 

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 
9

mothers flew to the United States to search for their sons.

In March 2003, the Israeli consulate helped them open an 

investigation with the FBI. The FBI traced the call Ne’eman’s 

sister received in December 2002 to Huang’s cell phone, and

connected Wertzberger’s cell phone records to Huang. They also 

learned Wertzberger had once lived at Huang’s home. 

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 the agents and told them 

Wertzberger and Ne’eman had been held captive at Huang’s 

house, and that he had last seen them alive when he left that 

night. Pistone subsequently agreed to wear a recording device to 

assist in the investigation against Huang. 

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. 
10

The Interview with Frandsen

After the deaths of Wertzberger and Ne’eman, Frandsen 

moved to Yellowstone National Park. He waived his Miranda1

rights when FBI agents interviewed him on September 14, 2003. 

The jury heard Frandsen’s interview at trial, and were given 

transcripts to assist them in following the recording. Frandsen 

told the agents he saw Huang two weeks earlier and received a 

message from Huang when the FBI raided Huang’s home two 

days earlier. 

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 

 

1 Miranda v. Arizona (1966) 384 U.S. 436.
11

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, “Here are your options . . . You leave. You never 

say anything. And, we’re gonna follow you to Vegas. You stay in 

Vegas. You don’t come back here anymore.” Frandsen said he 

then drove Wertzberger to Las Vegas in Wertzberger’s car while

Ne’eman rode with Huang in Huang’s car. He said they all went 

to Outback Steakhouse, but Ne’eman and Wertzberger did not 

eat; Ne’eman paid for Frandsen and Huang’s meal. They also 

went to a clothing store and had Wertzberger and Ne’eman wait 

outside while they used Ne’eman’s credit card to purchase 

clothing for themselves. Frandsen indicated he and Huang left 

Wertzberger and Ne’eman alive at a Las Vegas motel and that

Huang gave Wertzberger’s cell phone to a prostitute outside of

the motel. Frandsen and Huang then drove back to Los Angeles

together in Huang’s car. 

The agents disbelieved Frandsen and demanded to know 

where the victims’ bodies were located, 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. 
12

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 found Wertzberger’s and 

Ne’eman’s bodies buried in a single grave. Also in the grave were 

pieces of duct tape, which were not attached to any body part. 

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 
13

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. 

Wertzberger’s body was too badly decomposed to determine 

the fatal injury. The forensic pathologist saw no broken bones, or 

any injury demonstrating strangulation. She also could not 

determine whether he had been stabbed. She concluded 

Wertzberger died as a result of “homicidal violence.” 

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).)2 Turner pleaded guilty to two counts of 

false imprisonment and received probation in exchange for his 

testimony against Huang and Frandsen. In 2005, Frandsen and 

Huang were separately tried and both were convicted of first 

degree murder with the special circumstance of multiple 

murders. Both appealed, but only the judgment against Huang 

was affirmed. (People v. Huang (Oct. 2, 2007, B192819) [nonpub. 

opn.].)

The judgment against Frandsen was reversed for 

instructional error. (People v. Frandsen (Sept. 11, 2007, 

B191189) [nonpub. opn.].) Frandsen was retried in 2009 and 

convicted of the second degree murder of Ne’eman and the 

involuntary manslaughter of Wertzberger. These convictions 

were affirmed. (People v. Frandsen (2011) 196 Cal.App.4th 266.) 

However, Frandsen’s petition for writ of habeas corpus was 

granted by the Los Angeles Superior Court because one of the 

 

2 All further section references are to the Penal Code unless 

otherwise specified.
14

jurors in the second trial did not have sufficient understanding of 

English to sit as an impartial juror. 

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)) and 

second degree murder of Ne’eman (count 2; § 187 subd. (a)). 

Frandsen was tried a third time on these charges. The People 

presented testimony and evidence setting forth the events as 

described above. 

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.” 
15

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 food that Frandsen and Huang had picked up. 

Frandsen also recalled that Huang dunked Wertzberger’s head

under water in the bathroom. Huang claimed Wertzberger then 

confessed to taking the marijuana. Frandsen also stated Huang 

took money from Ne’eman’s suitcase, which had been in

Wertzberger’s vehicle. 

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 bathroom, and Huang followed 

him. Moments later, Frandsen heard a loud thump that sounded 

like a door slamming shut, followed by a crash and multiple 

thumps. 
16

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. 
17

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. 

Frandsen further explained that his ex-girlfriend 

misinterpreted the gesture he made showing what he did to 

Ne’eman. He testified he told his friends he had killed both

victims because he did not want to implicate Huang. He denied 

keeping information from the FBI about the location of the 

bodies. He asserted he gave them specific information about 

where to locate the bodies during the unrecorded portion of his 

interview because he did not want Huang to hear his voice

directing authorities to the location of the bodies. Frandsen also

called several character witnesses who testified that they did not 

know him to be a violent person. 

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. __ [135 

S.Ct. 2551] (Johnson), Frandsen contends his conviction must be 
18

reversed because the second degree felony-murder rule is 

unconstitutionally vague. We disagree. 

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.” (18 U.S.C. 

§ 924(e)(1).) The ACCA defines “violent felony” as “any crime 

punishable by imprisonment for a term exceeding one year, or 

any act of juvenile delinquency involving the use or carrying of a 

firearm, knife, or destructive device that would be punishable by 

imprisonment for such term if committed by an adult, that— [¶] 

(i) has as an element the use, attempted use, or threatened use 

of physical force against the person of another; or [¶] (ii) is 

burglary, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of 

physical injury to another[.]” (18 U.S.C. § 924(e)(B), italics 

added.)

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, supra, 135 S.Ct. at p. 2556.) 

Because the prior convictions may come from different 

jurisdictions, courts must use a “categorical approach” when 

deciding whether an offense is a violent felony under the ACCA 

residual clause, looking not to the particular statute that was 

violated or to how the individual offender committed the crime on 

a particular occasion, but to a generic or “ordinary” version of the 

crime. (Taylor v. United States (1990) 495 U.S. 575, 598.) Thus, 
19

a court considers the kind of conduct that the crime prohibits in 

the “ordinary” case and assesses whether that abstraction 

presents a serious potential risk of physical injury. A court does 

not consider the individual facts of the case or the elements of the 

criminal statute. (Johnson, supra, 135 S.Ct. at p. 2557.)

In Johnson, the defendant pleaded guilty to being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g). His 

sentence was enhanced under the ACCA because he had three 

prior convictions for violent felonies, including unlawful 

possession of a short-barreled shotgun in violation of Minnesota

law. The U.S. Supreme Court granted certiorari to decide 

whether possession of a short-barreled shotgun constituted a 

violent felony under the residual clause. It later asked the 

parties to address the compatibility of the residual clause with 

the Constitution’s prohibition against vague criminal laws. 

(Johnson, supra, 135 S.Ct. at p. 2556.)

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, supra, 135 S.Ct. 
20

at pp. 2557–2558.) As to the second area of uncertainty, the court 

explained that the four offenses (burglary, arson, extortion, and 

crimes involving use of explosives) enumerated prior to the 

residual clause posed widely disparate degrees of risk of physical 

injury. 

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 more 

unpredictability and arbitrariness than the Due Process Clause 

tolerates.” (Johnson, supra, 135 S.Ct. at p. 2558.) It concluded, 

“Each of the uncertainties in the residual clause may be tolerable 

in isolation, but ‘their sum makes a task for us which at best 

could be only guesswork.’ ” (Id. at p. 2560.) 

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, supra, 135 S.Ct. at p. 2561.) It reasoned, “Almost none 

of the cited laws links a phrase such as ‘substantial risk’ to a 

confusing list of examples. ‘The phrase “shades of red,” standing 

alone, does not generate confusion or unpredictability; but the 

phrase “fire-engine red, light pink, maroon, navy blue, or colors 

that otherwise involve shades of red” assuredly does so.’

[Citation.] More importantly, almost all of the cited laws require 

gauging the riskiness of conduct in which an individual 

defendant engages on a particular occasion. As a general matter, 

we do not doubt the constitutionality of laws that call for the 

application of a qualitative standard such as ‘substantial risk’ to 

real-world conduct; ‘the law is full of instances where a man’s fate 

depends on his estimating rightly . . . some matter of degree,’
21

[citation.]” (Id. at p. 2561.) The court further explained, “It is 

one thing to apply an imprecise ‘serious potential risk’ standard 

to real-world facts; it is quite another to apply it to a judgeimagined abstraction.” (Id. at p. 2558.) 

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 felony murder and second degree felony 

murder. . . . First degree felony murder is a killing during the 

course of a felony specified in section 189, such as rape, burglary, 

or robbery. Second degree felony murder is ‘an unlawful killing 

in the course of the commission of a felony that is inherently 

dangerous to human life but is not included among the felonies 

enumerated in section 189. . . .’ [Citation.]” (People v. Chun

(2009) 45 Cal.4th 1172, 1182 (Chun).) In California, the second

degree felony-murder rule “lies imbedded in our law.” (People v. 

Phillips (1966) 64 Cal.2d 574, 582, overruled on another ground 

by People v. Hood (1998) 18 Cal.4th 470, 490.) 

The California Supreme Court recently explained that the 

felony murder rule imputes the requisite malice for a murder 

conviction to those who commit a homicide during the 

perpetration of a felony that is inherently dangerous to life.3 

 

3 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 
22

(Chun, supra, 45 Cal.4th at p. 1183.) “Implied malice, for which 

the second degree felony-murder doctrine acts as a substitute, 

has both a physical and a mental component. The physical 

component is satisfied by the performance of ‘an act, the natural 

consequences of which are dangerous to life.’ [Citation.] The 

mental component is the requirement that the defendant ‘knows 

that his conduct endangers the life of another and . . . acts with a 

conscious disregard for life.’ [Citation.] [¶] The second degree 

felony-murder rule eliminates the need for the prosecution to 

establish the mental component. The justification therefor is 

that, when society has declared certain inherently dangerous 

conduct to be felonious, a defendant should not be allowed to 

excuse himself by saying he was unaware of the danger to life 

because, by declaring the conduct to be felonious, society has 

warned him of the risk involved. The physical requirement, 

however, remains the same; by committing a felony inherently 

dangerous to life, the defendant has committed ‘an act, the 

natural consequences of which are dangerous to life’ [citation], 

thus satisfying the physical component of implied malice.” 

(People v. Patterson (1989) 49 Cal.3d 615, 626, fn. omitted

(Patterson).)

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, 

64 Cal.2d at p. 582; People v. Howard (2005) 34 Cal.4th 1129, 

 

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) 54 

Cal.4th 314, 319.)
23

1135 (Howard).) In doing so, the court ensures the felony “ ‘by its 

very nature . . . cannot be committed without creating a 

substantial risk that someone will be killed . . . .’ ” (Howard, 

supra, at p. 1135.) “ ‘This form of [viewed-in-the-abstract] 

analysis is compelled because there is a killing in every case 

where the rule might potentially be applied. If in such 

circumstances a court were to examine the particular facts of the 

case prior to establishing whether the underlying felony is 

inherently dangerous, the court might well be led to conclude the 

rule applicable despite any unfairness which might redound to 

the defendant by so broad an application: the existence of the 

dead victim might appear to lead inexorably to the conclusion 

that the underlying felony is exceptionally hazardous.’ ”

(Patterson, supra, 49 Cal.3d at p. 622, quoting People v. 

Burroughs (1984) 35 Cal.3d 824, 830.)

Where a felony statute proscribes an “essentially single 

form of conduct,” the court must examine the statute as a whole 

to determine the inherent dangerousness of a felony. (Patterson, 

supra, 49 Cal.3d at pp. 623–624.) Where the statute lacks a 

primary element and, instead, includes a variety of offenses, the 

proscribed conduct may be severed to determine whether it is 

inherently dangerous. (Id. at pp. 624–625.)

In People v. Ordonez (1991) 226 Cal.App.3d 1207, 1225, the 

court concluded that kidnapping for extortion is an inherently 

dangerous offense that supports a second degree felony-murder 

conviction. Other felonies that have also been found to be

inherently dangerous to life include poisoning with intent to 

injure, arson of a motor vehicle, kidnapping, and reckless or 

malicious possession of a destructive device. (Howard, supra,

34 Cal.4th at p. 1136 [collecting cases].)
24

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 felonymurder 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, 64 Cal.2d at p. 582.) We are not persuaded.4

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, 135 S.Ct. at p. 2557, italics added.) Implicit in this 

holding is that a crime is not unconstitutionally vague if a court 

 

4 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, 

135 S.Ct. 2551] renders the California second-degree murder rule 

unconstitutionally vague.” 
25

assesses risk by one of two alternative methods: consideration of

the real-world facts underlying the conviction or consideration of

the statutory elements of the crime. 

California courts have adopted this reading of Johnson

when evaluating other crimes. In People v. Ledesma (2017) 14 

Cal.App.5th 830, 839–840 (Ledesma), for example, the defendant 

relied on Johnson to challenge the definition of aggravated 

kidnapping to commit rape, which requires “movement of the 

victim [] beyond that merely incidental to the commission of, and 

[which] increases the risk of harm to the victim over and above 

that necessarily present in, the intended underlying offense.” 

(§ 209, subd. (b)(2).) The defendant also challenged similar 

asportation language contained in section 667.61, subdivision 

(d)(2) that permitted more severe sentencing for the crime of rape 

where “ ‘the movement of the victim substantially increased the 

risk of harm to the victim over and above that level of risk 

necessarily inherent in the underlying offense.’ ” (Ledesma, 

supra, 14 Cal.App.5th at p. 835.) The defendant argued this

asportation requirement was unconstitutionally vague because it

was not sufficiently concrete to give citizens fair warning of the 

crime. The Ledesma court disagreed, explaining that “[u]nlike 

the residual clause at issue in Johnson, California’s asportation 

requirement compels juries and courts to apply a legal standard 

to real-world facts.” (Id. at p. 838.)

Likewise, the court in People v. White (2016) 3 Cal.App.5th 

433, 453–454, held the term “sexually violent criminal behavior” 

contained in the Sexually Violent Predator Act (Welf. & Inst. 

Code, § 6600 et seq.) was not unconstitutionally vague because it 

required a sexually violent criminal offense—which is well 

defined in the Penal Code—that is linked with a diagnosed 
26

mental disorder. (White, supra, at p. 454.) Thus, the Sexually 

Violent Predator Act also required the fact finder to apply a legal 

standard to real-world facts. 

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.) Thus, the two uncertainties 

identified in Johnson—how to estimate the risk posed by a crime

and how much risk is required to qualify as a violent/inherently 

dangerous crime—are alleviated. 

A comparison of how courts assess crimes under the ACCA 

and the second degree felony-murder rule illustrates the 

significant differences between the approaches. In James v. 

United States (2007) 550 U.S. 192, 226 (James)—a case cited in

Johnson to illustrate how speculative and detached from 

statutory elements a categorical approach under the ACCA 

presents—the court was tasked with deciding whether an 

attempted burglary is a violent felony under the residual clause.

The majority and the dissent set forth vastly different scenarios 

to support their respective positions: the majority envisioned a 

confrontation in which a homeowner may chase after a would-be 

burglar, while the dissent envisioned a confrontation limited to a 
27

homeowner yelling, “who’s there?” and the would-be burglar 

running away. (James, supra, at pp. 211, 226.) As the Johnson 

court observed, the residual clause offered “no reliable way to 

choose between these competing accounts of what ‘ordinary’ 

attempted burglary involves.” (Johnson, supra, 135 S.Ct. at

p. 2558.) 

In stark contrast, the court in People v. Hansen (1994) 

9 Cal.4th 300 (Hansen) overruled on another point in Chun, 

supra, 45 Cal.4th at pages 1198–1199, employed the statutory 

elements approach to determine whether the felony of 

discharging a firearm at an inhabited dwelling (§ 246) is 

inherently dangerous for purposes of the second degree felonymurder rule. After considering the elements of the crime, the 

court explained: “An inhabited dwelling house is one in which 

persons reside [citation] and where occupants ‘are generally in or 

around the premises.’ [Citation.] In firing a gun at such a 

structure, there always will exist a significant likelihood that an 

occupant may be present. Although it is true that a defendant 

may be guilty of this felony even if, at the time of the shooting, 

the residents of the inhabited dwelling happen to be absent 

[citation], the offense nonetheless is one that, viewed in the 

abstract--as shooting at a structure that currently is used for 

dwelling purposes--poses a great risk or ‘high probability’ of 

death . . . .” (Hansen, at p. 310.) 

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 
28

pink, maroon, navy blue, or colors that otherwise involve shades 

of red.”. . . ’ ” (Johnson, supra, 135 S.Ct. at p. 2561.) This 

internal contradiction is unique to the ACCA, and thus Johnson

has no application to the second degree felony-murder rule.

In short, the second degree felony-murder rule does not present

the same constitutional infirmities as the residual clause under 

the ACCA. 

II. The Instruction on Kidnapping for Extortion Did Not 

Misstate the Law

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 forfeited 

this claim, having failed to object or seek a clarifying instruction 

on this issue at trial. (People v. Guerra (2006) 37 Cal.4th 1067, 

1138, overruled on a different ground in People v. Rundle (2008) 

43 Cal.4th 76, 151.) In any event, the trial court did not misstate 

the law in its instruction to the jury.

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) 33 Cal.4th 187, 207 (Cavitt), is 

instructive. There, the defendants similarly argued the 

underlying felonies—burglary and robbery—had ended before the 
29

victim was killed, relieving them of liability for felony murder. 

(Id. at p. 206.) The court rejected this argument, holding that 

felony murder applies when the killing and the felony are part of 

one continuous transaction, including a defendant’s flight after 

the felony to a place of temporary safety. (Id. at p. 207; see also 

People v. Ainsworth (1988) 45 Cal.3d 984, 1015–1016.) 

The court explained, “Our reliance on the continuoustransaction doctrine is consistent with the purpose of the felonymurder 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, 33 Cal.4th at p. 207, quoting People v. Chavez

(1951) 37 Cal.2d 656, 669–670.) 

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) 17 Cal.4th 1044, 1159

(Barnett); People v. Burney (2009) 47 Cal. 4th 203, 233 (Burney).) 

The sentence included in CALCRIM No. 541A did not misstate 

the law.

Frandsen’s reliance on People v. Anderson (1979) 97 

Cal.App.3d 419 (Anderson), is misplaced. In Anderson, the Court 

of Appeal found that “kidnapping for ransom is complete when 

the kidnapping is done for the specific purpose of obtaining 

ransom even though the purpose is not accomplished.” (Id. at 

p. 425.) The court made this statement while discussing the 
30

difference between kidnapping for ransom and attempted 

kidnapping for ransom. The court held that obtaining the 

property that is the target of the kidnapping for ransom is not an 

element of the offense and the failure to do so does not render the 

kidnapping a mere attempt rather than a completed kidnapping. 

Anderson does not stand for the proposition that kidnapping for 

ransom cannot continue past the initial act of taking a person. 

(Ibid.) In other words, Anderson does not contravene the 

authority set forth in Barnett, supra, 17 Cal.4th at page 1159 and 

Burney, supra, 47 Cal.4th at page 233. 

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, 33 Cal.4th

at p. 207.)

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 judgment to 

determine whether it discloses evidence that is reasonable, 

credible, and of solid value such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt. 

[Citations.] Reversal on this ground is unwarranted unless it 
31

appears “that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conviction].” [Citation.]’

[Citation.]” (People v. Wilson (2010) 186 Cal.App.4th 789, 805.) 

We presume in support of the judgment the existence of every 

fact the trier could reasonably deduce from the evidence. 

(People v. Virgil (2011) 51 Cal.4th 1210, 1263.) “Whether 

defendant aided and abetted the crime is a question of fact, and 

on appeal all conflicts in the evidence and reasonable inferences 

must be resolved in favor of the judgment.” (People v. Mitchell

(1986) 183 Cal.App.3d 325, 329.)

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) 14 Cal.4th 668, 771, fn. 10, overruled on another 

ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.)

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) 14 Cal.4th 248, 259.) 

Presence at the scene of a crime, alone, is insufficient to establish 

aiding and abetting liability. (People v. Nguyen (1993) 21 

Cal.App.4th 518, 529–530.) However, the aider and abettor need 
32

not have advance knowledge of the crime or the perpetrator’s 

intent. “Aiding and abetting may be committed ‘on the spur of 

the moment,’ that is, as instantaneously as the criminal act itself. 

[Citation.]” (People v. Nguyen, supra, 21 Cal.App.4th at p. 532.) 

In People v. Cooper (1991) 53 Cal.3d 1158 (Cooper), the 

court held that “a getaway driver who has no prior knowledge of 

a robbery, but who forms the intent to aid in carrying away the 

loot during such asportation, may properly be found liable as an 

aider and abettor of the robbery.” (Id. at p. 1161; see also People 

v. Montoya (1994) 7 Cal.4th 1027, 1039 [upholding burglary 

conviction for aider and abettor who did not have knowledge of 

criminal purpose until after entry].) The court reasoned, “The 

logic of viewing ‘committed’ as a fixed point in time for purposes 

of guilt-establishment and ‘commission’ as a temporal continuum 

for purposes of determining accomplice liability can be seen from 

the perspectives of both the victim and the accomplice. The rape 

victim, for example, would not agree that the crime was 

completed once the crime was initially committed (i.e., at the 

point of initial penetration). Rather, the offense does not end 

until all of the acts that constitute the rape have ceased. 

Furthermore, the unknowing defendant who happens on the 

scene of a rape after the rape has been initially committed and 

aids the perpetrator in the continuing criminal acts is an 

accomplice under this concept of ‘commission,’ because he formed 

his intent to facilitate the commission of the rape during its

commission.” (Cooper, supra, 53 Cal.3d at p. 1164, fn. 7.)

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 
33

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, 17 

Cal.4th at p. 1159; Burney, supra, 47 Cal.4th at p. 233.)

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 captive. 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. 
34

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 enough evidence to prove the 

charges, you will see, and the evidence will show you, that there 

is way more than was proved that involuntary manslaughter and 

just second degree murder. Way more. You will see that the 

evidence shows you that there were two counts of first degree 

murder proved, but it doesn’t - - that makes no matter. That’s 

neither here nor there. The charges are involuntary 

manslaughter and second degree murder.” 

“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 second and an invol[untary manslaughter], 

by all means, don’t even read the instructions, just find him not 

guilty.” 

“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) 15 

Cal.4th 795, 841.) Nevertheless, he urges us to reach the merits 

in order to forestall a claim of ineffective assistance of counsel. 
35

We agree the issue was forfeited. Accordingly, we consider 

Frandsen’s prosecutorial misconduct claim within the context of 

an ineffective assistance of counsel argument.

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 to 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) 50 Cal.3d 262, 288; Strickland 

v. Washington (1984) 466 U.S. 668 (Strickland).) A defendant 

establishes a reasonable probability of a more favorable 

determination when he persuades a reviewing court that the 

result of his trial was fundamentally unfair or unreliable. 

(Strickland, at p. 694; People v. Shazier (2014) 60 Cal.4th 109, 

127 (Shazier).)

“When a prosecutor’s intemperate behavior is sufficiently 

egregious that it infects the trial with such a degree of unfairness 

as to render the subsequent conviction a denial of due process, 

the federal Constitution is violated. Prosecutorial misconduct 

that falls short of rendering the trial fundamentally unfair may 

still constitute misconduct under state law if it involves the use of 

deceptive or reprehensible methods to persuade the trial court or 

the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462.)

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, 60 Cal.4th at p. 127.) At closing, a prosecutor 
36

has wide latitude to discuss and draw inferences from the 

evidence presented at trial, and the question of whether the 

inferences the prosecutor draws are reasonable is generally for 

the jury to decide. (Shazier, supra, 60 Cal.4th at p. 127.) For 

their part, “[j]uries are warned in advance that counsel’s remarks 

are mere argument, missteps can be challenged when they occur, 

and juries generally understand that counsel’s assertions are the 

‘statements of advocates.’ Thus, argument should ‘not be judged 

as having the same force as an instruction from the court. And 

the arguments of counsel, like the instructions of the court, must 

be judged in the context in which they are made. [Citations.]’ ” 

(People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, quoting 

Boyde v. California (1990) 494 U.S. 370.)

C. The Prosecutor’s Closing Remarks Were Proper 

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 charged. 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 
37

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. 

Moreover, the prosecutor expressly discussed the 

reasonable doubt standard in her closing. Frandsen does not 

contend the prosecutor misstated the reasonable doubt standard 

in her remarks. We do not consider the prosecutor’s remarks to 

amount to deceptive or reprehensible methods to persuade the 

jury. 

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) 58 Cal.4th 1144, 1229, abrogated on 

another ground by People v. Rangel (2016) 62 Cal.4th 1192, 

1215–1216.) Thus, the prosecutor’s argument, considered in its 

totality, did not constitute error, and defense counsel’s failure to 

object to the prosecutor’s closing statement did not constitute 

ineffective assitance. 

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 
38

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) 84 Cal.App.4th 641, 650 [Harvest] and 

subsequent cases have held that for double jeopardy purposes, 

victim restitution does not constitute punishment. Direct 

restitution to redress economic losses is not a criminal 

punishment. (People v. Kunitz (2004) 122 Cal.App.4th 652, 657;

Harvest, supra, 84 Cal.App.4th at pp. 645, 649.)” In Harvest, the 

court ordered victim restitution for the first time at resentencing 

following an appeal. It held that the prosecution’s initial failure 

to seek restitution did not preclude a reasonable victim 

restitution order after reversal on appeal or the grant of a habeas 

corpus petition. (Harvest, supra, at pp. 645–650.) Accordingly, 

the court’s order of additional victim restitution in this case was

well within its authority. 

The Attorney General notes that the abstract of judgment 

lists only the original $11,749.20 victim restitution award, but 

not the additional $16,549. We order this error corrected. 

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 
39

restitution fine (§ 1202.4, subd. (b)).5 In supplemental briefing, 

Frandsen challenges the imposition of the assessments and 

restitution fine on due process grounds. Relying on People v. 

Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he requests we 

vacate the assessments and impose a stay of the restitution fine 

until the People prove he has the ability to pay. 

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) 46 Cal.4th 680, 729 [finding forfeiture where the 

defendant failed to object to imposition of restitution fine under 

former section 1202.4 based on inability to pay] (Avila).)

Frandsen asserts there was no forfeiture because he 

presents 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) 31 Cal.4th 93, 118.) Rather, he requests a factual 

determination of his alleged inability to pay based on a record 

that contains nothing more than his reliance on appointed 

counsel at trial.

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. 

 

5 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).)
40

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 extraordinary reasons not to do so. 

Section 1202.4, subdivision (c), specifies a defendant’s inability to 

pay is not a compelling and extraordinary reason to refuse to 

impose the fine, but inability to pay “may be considered only in 

increasing the amount of the restitution fine in excess of the 

minimum fine [of $300].” While the defendant bears the burden 

of demonstrating his or her inability to pay, a separate hearing 

for the restitution fine is not required. (§ 1202.4, subd. (d).) 

Given that the defendant is in the best position to know whether 

he has the ability to pay, it is incumbent on him to object to the 

fine and demonstrate why it should not be imposed. (Avila, 

supra, 46 Cal.4th at p. 729; see People v. McMahan (1992) 

3 Cal.App.4th 740, 749–750.) 

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, 46 Cal.4th at p. 729.) 

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 
41

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 

served 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) 

___ Cal.App.5th ___ [2019 WL 1349472] (Castellano) [Dueñas was 

“a newly announced constitutional principle that could not 

reasonably have been anticipated at the time of trial”].) 

Dueñas was foreseeable. Dueñas herself foresaw it. 

The Dueñas opinion applied “the Griffin-Antazo-Bearden

analysis,” which flowed from Griffin v. Illinois (1956) 351 U.S. 12, 

In re Antazo (1970) 3 Cal.3d 100, and Bearden v. Georgia (1983) 

461 U.S. 660. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The 

Dueñas opinion likewise observed “ ‘[t]he principle that a punitive 

award must be considered in light of the defendant’s financial 

condition is ancient.’ (Adams v. Murakami (1991) 54 Cal.3d 105, 

113.) The Magna Carta prohibited civil sanctions that were 

disproportionate to the offense or that would deprive the 

wrongdoer of his means of livelihood. [Citation.]” (Dueñas, 

supra, 30 Cal.App.5th at p. 1169.) 
42

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.

CERTIFIED FOR PUBLICATION

BIGELOW, P. J.

We concur:

GRIMES, J.

WILEY, J.