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People v. Frandsen

Court of Appeal of California, Second Appellate District, Division Eight

April 4, 2019, Opinion Filed

B280329

Opinion

 [**662]  BIGELOW, P. J.—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 [***2]  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 was 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.  [**663]  Wertzberger lived with Huang in the summer of 2002, and took care of the marijuana plants in exchange for a place to stay. 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 [***3]  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.

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33 Cal. App. 5th 1126 *; 245 Cal. Rptr. 3d 658 **; 2019 Cal. App. LEXIS 309 ***; 2019 WL 1486863

THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN FRANDSEN, Defendant and Appellant.

Subsequent History: Time for Granting or Denying Review Extended People v. Frandsen, 2019 Cal. LEXIS 4927 (Cal., July 1, 2019)

Review denied by People v. Frandsen, 2019 Cal. LEXIS 5296 (Cal., July 17, 2019)

Prior History:  [***1] APPEAL from a judgment of the Superior Court of Los Angeles County, No. LA046248, Eric P. Harmon, Judge.

People v. Frandsen, 196 Cal. App. 4th 266, 126 Cal. Rptr. 3d 640, 2011 Cal. App. LEXIS 691 (Cal. App. 2d Dist., June 6, 2011)

Disposition: Affirmed as modified.

CORE TERMS

felony, kidnapping, killed, residuary clause, felony-murder, marijuana, second degree, extortion, restitution fine, sentencing, murder, bodies, trial court, victim restitution, charges, unconstitutionally vague, statutory elements, inability to pay, arrived, inherently dangerous, contends, remarks, rape, second degree felony murder, convictions, subdivision, real-world, violent felony, perpetrator, misconduct

Constitutional Law, Fundamental Freedoms, Judicial & Legislative Restraints, Overbreadth & Vagueness of Legislation, Criminal Law & Procedure, Crimes Against Persons, Kidnapping, Elements, Murder, Felony Murder, Accessories, Aiding & Abetting, Standards of Review, Substantial Evidence, Sufficiency of Evidence, Counsel, Effective Assistance of Counsel, Tests for Ineffective Assistance of Counsel, Appeals, Reversible Error, Prosecutorial Misconduct, Sentencing, Restitution, Appealability, Fines