Filed 10/6/22 P. v. Frandsen CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314195
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA046248)
v.
BENJAMIN WILEY FRANDSEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Eric P. Harmon, Judge. Affirmed.
Loyola Law School, Juvenile Innocence & Fair Sentencing
Clinic, Marisa Harris and Christopher Hawthorne for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Benjamin Wiley Frandsen
appeals from the order denying his petition for resentencing
pursuant to former Penal Code section 1170.95. During the
pendency of this appeal, former section 1170.95 was renumbered
as section 1172.6 with no change in the text. (Stats. 2022, ch. 58,
§ 10.) We refer to the statute only by its new designation for
clarity.
We affirm.
BACKGROUND
The charges against defendant arose from events that
occurred in late 2002.
Shane Huang, a friend of defendant’s, grew marijuana
illegally at his home in Canoga Park. Sometime in November
2002, Huang discovered evidence of a burglary at his home and
the theft of $6,000 worth of marijuana. Huang suspected Ben
Wertzberger and Adar Ne’eman of the theft. Wertzberger helped
Huang with the grow operation in exchange for a place to stay.
Ne’eman was a friend of Wertzberger’s visiting from Israel.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1129–1130.)
On December 2, 2002, defendant, at the request of Huang,
went to Huang’s home with his longtime friend, Nick Turner.
Wertzberger and Ne’eman were there, seated together on a couch
in the living room. Two others, Jamil Kharboutli and Joseph
Pistone, were also there, having also been beckoned by Huang
who claimed to have caught the marijuana thieves. (People v.
Frandsen, supra, 33 Cal.App.5th at pp. 1130–1131.)
Huang, with the assistance of defendant, Turner,
Kharboutli and Pistone, held Wertzberger and Ne’eman captive
inside the house. Huang angrily interrogated and threatened
both men for a long time. Defendant is a former marine, skilled
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in martial arts with a black belt in Taekwondo. He complied
with Huang’s request to play the “tough guy role” while
Wertzberger and Ne’eman were interrogated about the theft.
(People v. Frandsen, supra, 33 Cal.App.5th at pp. 1130–1131,
1137.)
At one point during the interrogation, Huang said he
wanted to kill Wertzberger and Ne’eman, but everyone objected.
Kharboutli said, “ ‘If you kill them, you must kill me, too.’ ”
(People v. Frandsen, supra, 33 Cal.App.5th at p. 1137.)
Eventually, Wertzberger and Ne’eman admitted taking the
marijuana. Plans were made to get money from their families in
Israel to pay for the stolen marijuana. (People v. Frandsen,
supra, 33 Cal.App.5th at p. 1137.)
Tuner, Pistone and Kharboutli left. Defendant stayed with
Huang and the two victims. (People v. Frandsen, supra,
33 Cal.App.5th at pp. 1130–1131.) Wertzberger and Ne’eman,
still seated together on the couch, “spoke to each other in
Hebrew. Wertzberger then got up and walked toward the
bathroom, and Huang followed him. Moments later, [defendant]
heard a loud thump that sounded like a door slamming shut,
followed by a crash and multiple thumps.” (Id. at p. 1137.)
Defendant’s attention remained drawn to the sounds from
the bathroom. When he turned back around, Ne’eman rushed
“toward him with a large bong raised above his head.
[Defendant] threw up an elbow, which struck Ne’eman in the
throat and caused him to fall to the ground.” (People v. Frandsen,
supra, 33 Cal.App.5th at p. 1138.) Ne’eman was incapacitated as
a result of the blow to his neck. Defendant went down the hall to
the bathroom and saw Wertzberger dead on the floor. (Id. at
pp. 1137–1138.) When defendant returned to the living room,
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“he saw Huang holding a plastic bag over Ne’eman’s face.” (Id. at
p. 1138.) Ne’eman appeared to take one final breath and died.
(Ibid.)
Huang came up with a plan to bury the bodies in the desert
and then make it look like Wertzberger and Ne’eman had gone to
Las Vegas. (People v. Frandsen, supra, 33 Cal.App.5th at
p. 1138.) Huang and defendant placed both bodies in the trunk of
Huang’s car. Huang then drove to the desert outside of Las
Vegas with defendant following in Wertzberger’s car. Huang and
defendant buried the bodies in a single grave in the desert and
then drove to Las Vegas where they abandoned Wertzberger’s car
with the keys in the ignition. They used Ne’eman’s credit card to
make purchases in Las Vegas to make it appear the two men
were still alive, and then they returned to Los Angeles.
Almost a year later, following an investigation involving
the FBI, defendant and Huang were arrested. Defendant and
Huang were charged with various felonies, including two counts
of murder. Turner was also charged and pled guilty to two
counts of false imprisonment in exchange for probation and his
testimony against defendant and Huang. Huang was tried
separately from defendant and convicted of two counts of murder.
His conviction was affirmed on appeal. (People v. Huang (Oct. 2,
2007, B192819) [nonpub. opn.].) Huang and Turner are not
parties to this appeal.
In defendant’s first trial, he was found guilty on both
murder counts. The conviction was reversed on appeal for
instructional error. (People v. Frandsen (Sept. 11, 2007,
B191189) [nonpub. opn.].) Defendant was retried and found
guilty of one count of second degree murder (Ne’eman) and one
count of involuntary manslaughter (Wertzberger). His conviction
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was affirmed on appeal. (People v. Frandsen (2011)
196 Cal.App.4th 266, 271.) The superior court subsequently
granted defendant’s petition for habeas corpus on the ground one
juror did not understand English sufficiently to sit as a
competent juror.
In 2016, defendant was tried a third time. The jury trial
was held before Judge Eric P. Harmon, the same judge who heard
the resentencing petition at issue in this appeal.
Numerous witnesses testified, including Turner and
Pistone. Defendant testified in his own defense and made many
admissions about his role in the deaths of the victims and the
subsequent cover-up. Defendant admitted striking Ne’eman in
the throat and that he may have died because of that blow.
(People v. Frandsen, supra, 33 Cal.App.5th at p. 1138.)
Defendant also admitted “that Huang’s act of placing a bag on his
head might have been ‘redundant.’ ” (Ibid.)
The jury found defendant guilty of second degree murder
and involuntary manslaughter. Defendant was sentenced to
15 years to life on the murder count, plus a consecutive four-year
upper term for the manslaughter count.
On appeal, this court corrected the abstract of judgment
with respect to the restitution award and otherwise affirmed
defendant’s conviction in its entirety. (People v. Frandsen, supra,
33 Cal.App.5th 1126.)
In April 2019, after the passage of Senate Bill 1437 (2017–
2018 Reg. Sess.), defendant filed a petition in propria persona
requesting appointment of counsel and resentencing pursuant to
Penal Code section 1172.6. The court appointed counsel for
defendant and the parties filed briefs.
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The court granted defendant’s request to substitute in new
counsel and to submit supplemental briefing. Defendant’s
supplemental papers included three exhibits: excerpts of the
testimony of Pistone and Turner from Huang’s trial, a June 2016
memorandum from the district attorney’s office summarizing a
phone call with Kharboutli, and the June 2019 transcript from
defendant’s hearing before the Board of Parole.
Defendant’s testimony before the Board of Parole included
admissions similar to his trial testimony about his role in the
deaths of Wertzberger and Ne’eman. Defendant admitted, among
other things, that he “assaulted” Ne’eman and “actually injured
him causing harm” and that he helped Huang cover up the
crimes “to save [his] own skin.”
The evidentiary hearing on defendant’s petition was held
May 7, 2021. Because of the ongoing COVID-19 pandemic,
defendant waived his right to be personally present and appeared
via videoconference. The prosecutor relied on the record of
conviction and did not offer new evidence. Over the prosecutor’s
objection, the court admitted the three exhibits offered by
defendant in his supplemental brief as additional evidence.
After entertaining lengthy argument from counsel, the
court took defendant’s petition under submission. At the
conclusion of the hearing, the court said it would need time to
“review everything” including the relevant “legal standards” and
to “issue a written order” explaining its “determinations relating
to the facts drawn from the evidence in assessing whether the
People have met their burden in this matter.” A month later, the
court issued a detailed, 28-page order denying defendant’s
petition with specific citations to the factual record upon which
the court relied.
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This appeal followed. We grant the People’s request to take
judicial notice of the appellate record from defendant’s direct
appeal from the third trial (case No. B280329).
DISCUSSION
Defendant contends the court exceeded its authority in
determining he was the actual killer because the jury in his third
trial never made any such finding, and the People did not present
any new evidence at the evidentiary hearing demonstrating he
was the actual killer. Defendant further argues there is no
substantial evidence to prove beyond a reasonable doubt that he
acted with implied malice and was the actual killer. Defendant’s
contentions are without merit.
1. The Court Did Not Exceed Its Authority in Finding
Defendant Was the Actual Killer.
Penal Code section 1172.6, subdivision (d)(3) sets forth the
parameters of an evidentiary hearing on a resentencing petition.
It expressly provides that both sides may “offer new or additional
evidence” and that the court acts as an independent factfinder.
(Ibid.)
In discussing the statutory language, the Supreme Court
said “the Legislature authorized the parties to offer new or
additional evidence during the [Penal Code] section [1172.6]
process in order to allow the parties to explore issues they did not
explore under the prior state of the law. The statute
contemplates that such evidence may inform whether a
conviction remains valid despite the ameliorative provisions of
Senate Bill 1437.” (People v. Gentile (2020) 10 Cal.5th 830, 856;
see also People v. Myles (2021) 69 Cal.App.5th 688, 698 [the “clear
legislative intent” is to “allow both parties to locate and introduce
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evidence they did not have a chance to present in the original
guilt proceeding”].)
Defendant acknowledges the statutory language and the
court’s role as an independent factfinder but nevertheless argues
the court exceeded its authority by finding the evidence,
including the new evidence he offered, proved he was the actual
killer of Ne’eman. Defendant offers no persuasive argument or
authority to support his argument the trial court was limited to
considering the theories of guilt relied upon in the former trial
under the law as it existed prior to the statutory amendments.
Such a construction is illogical and contrary to the clear
legislative intent that the trial court is empowered to consider
and resolve new issues that may not have been previously
explored in the prior proceedings. Indeed, even where the parties
rely only on the record of conviction and do not offer new
evidence, the court is required to make new factual findings as to
the defendant’s guilt under the amended murder statutes.
It therefore makes no sense to conclude that the trial court,
tasked with making new factual findings as to guilt, would be
constrained by the former legal theories advanced in prior
proceedings.
The court’s order reflects that it understood it was required
to assess the evidence anew and make new findings as to
defendant’s guilt. The court set forth in detail the evidence upon
which it relied, with citations primarily to the testimony received
at trial—a trial over which the court presided. Nothing in the
court’s order or in the court’s statements on the record at the
hearing suggest the court misunderstood its role or held the
prosecution to some other, lesser standard. Nor is there any
evidence, as defendant appears to suggest, that the court
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somehow usurped the role of the prosecutor. The prosecution
argued several theories of guilt, including that defendant was the
actual killer of Ne’eman, based on the totality of the evidence, the
pathologist’s testimony, the circumstantial evidence of intent,
and defendant’s own admissions both at trial and before the
Board of Parole.
We are also not persuaded by defendant’s contention the
court improperly relied on the factual summary from the prior
appellate opinion. The argument is without any basis in the
record. Other than acknowledging that it read the prior opinion
and that it contained an accurate summary of the trial evidence,
the court otherwise did not cite to or make any material reference
to the opinion. The court’s order makes clear its focus was on the
trial record and the new evidence offered by defendant.
Before explaining the bases for its denial, the court stated
that, “[i]n addition to presiding over the jury trial in this matter,”
the court had reviewed the entire record of conviction, including
the “entire ten-volume set of trial transcripts, and the trial
exhibits,” the parties’ briefs and exhibits, and the arguments of
counsel from the hearing on the petition. Throughout the 28-
page order, the court cited specifically to the trial testimony and
the new testimony offered by defendant from his hearing before
the Board of Parole—not the appellate opinion.
2. Substantial Evidence Supports the Court’s Denial.
We apply the substantial evidence test in assessing the
court’s order. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022
[applying substantial evidence review to factual findings made
after evidentiary hearing that petitioner was not entitled to
resentencing under Pen. Code, § 1172.6]; see also People v.
Williams (2020) 57 Cal.App.5th 652, 663 [“ ‘ “Where the trial
9
court applies disputed facts” ’ to a statute, ‘ “we review the
factual findings for substantial evidence and the application of
those facts to the statute de novo.” ’ ”].)
In amending Penal Code section 188 and section 189, the
Legislature sought “ ‘to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959.)
Notwithstanding the statutory changes made to the felony
murder rule and the natural and probable consequences doctrine,
implied malice remains a valid theory of murder liability for a
direct perpetrator or aider and abettor.
Penal Code section 188, as amended by Senate Bill 1437,
provides that “(a) For purposes of Section 187, malice may be
express or implied. [¶] . . . [¶] (2) Malice is implied when no
considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.”
The court wrote 17 pages detailing the evidence from the
trial record upon which it based its conclusion that defendant
was guilty beyond a reasonable doubt of second degree implied
malice murder. The court cited the evidence relevant to both
defendant’s physical actions and his mental state.
For instance, the court cited the testimony of the forensic
pathologist who testified with considerable detail about the blunt
force trauma to Ne’eman’s neck and her opinion that he died as a
result of those injuries. The court quoted the pathologist’s
opinion that the blows to the victim’s neck (which defendant
admitted he inflicted) caused such severe injury that it would
have required “immediate medical attention and securing of the
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airway for a person to survive that injury.” The court also cited
to the testimony of Lindsey Devore, Sam Edmonson and Rogelio
Flores, all friends of defendant’s, who all said defendant
“admitted the killings” to them in the days and weeks afterward.
The court also cited defendant’s admissions made at trial
and before the Board of Parole, in addition to the evidence
demonstrating the victims were extremely vulnerable as captives,
defendant’s willing participation as the “tough guy” in the
terrorizing of the victims, defendant’s expertise in martial arts,
and defendant’s extensive assistance in covering up the crimes.
The court explained it did not find credible defendant’s efforts to
“minimiz[e] his violence” by describing the blows inflicted as
merely reflexive.
Defendant points to other evidence in the record
purportedly showing Huang killed Ne’eman by placing a plastic
bag over his head. The court called this evidence an
“uncorroborated assertion” that, even if accepted as true, did not
detract from defendant’s actions being a substantial factor, if not
the most important factor, in Ne’eman’s death. The trial court
was tasked with assessing the credibility of the evidence and
determining its weight. Defendant is asking us to reweigh that
evidence and the credibility determinations made by the trial
court. That is not our function on appeal and we decline to do so.
We find there is ample evidence supporting the court’s
conclusion that defendant is guilty of second degree implied
malice murder. (See People v. Cravens (2012) 53 Cal.4th 500, 508
[implied malice murder requires evidence of the performance of
an act by the defendant, the natural consequence of which is
dangerous to life, defendant’s knowledge of the dangerousness
and acting in conscious disregard of that knowledge].)
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DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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