Filed 4/4/19
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

THE PEOPLE,                            B280329

       Plaintiff and Respondent,       (Los Angeles County
                                       Super. Ct. No. LA046248)
       v.

BENJAMIN FRANDSEN,

       Defendant and Appellant.


      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.

                   __________________________
       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.




                                2
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




                              3
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




                                4
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




                                5
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




                                6
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.




                                7
       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




                               8
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.




                               9
       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.


                               10
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.




                                11
       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




                               12
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.


                               13
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.”




                                14
       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.




                               15
       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.




                               16
      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




                                17
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,




                                18
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.




                                19
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,’




                                20
[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 judge-
imagined 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


                                 21
(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.)


                                 22
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].)




                                23
       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, 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.”


                                 24
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




                               25
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




                                26
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 felony-
murder 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




                                27
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




                                28
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 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, 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




                                29
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




                                 30
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




                                 31
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




                                32
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.




                               33
       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.




                                 34
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




                                 35
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




                               36
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




                                37
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




                                38
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).)


                                39
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



                                 40
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.)




                                41
       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.




                               42
