Second degree felony murder rule is not unconstitutionally vague under Johnson v. United States (2015) _U.S._[135 S.Ct. 2551]. Frandsen and several others held two victims hostage at Huang’s house because they believed the victims had stolen marijuana from Huang. Frandsen and Huang were the only ones present when the victims were killed. After his third trial, Frandsen was convicted of second degree murder and involuntary manslaughter, and sentenced to 19 years to life in prison. He appealed, arguing the second degree felony murder rule is unconstitutionally vague. Held: Affirmed. In Johnson, the U.S. Supreme Court evaluated the residual clause of the Armed Career Criminal Act (ACCA), which provides for more severe punishment for persons with prior violent felony convictions. To determine whether a crime qualified as a violent felony, a court was required to imagine the kind of conduct the crime involved in the ordinary case and to judge whether that abstraction presented a serious potential risk of physical injury. This rendered the residual clause unconstitutionally vague, because it tied judicial assessment of risk to hypothetical facts, rather than real-world facts or the statutory elements of the crime. Implicit in Johnson’s holding is that a crime is not unconstitutionally vague if a court assesses risk by one of two alternative methods: consideration of real-world facts underlying the conviction or consideration of the statutory elements of the crime. In California, the second degree felony murder rule utilizes the statutory elements approach in evaluating risk to determine whether the killing occurred during the course of an inherently dangerous felony. Rather than imagining what an ordinary crime would look like, the court examines the elements of the crime to determine whether the crime could possibly be committed without creating a substantial risk that someone would be killed. This approach avoids the constitutional infirmities at issue in Johnson. [Editor’s Note: In a footnote, the court observed that Senate Bill No. 1437 “brings into question the ongoing viability of second degree felony murder in California.” However, the parties did not raise this issue and the court concluded it “need not address it because it does not appear the Legislature intended for this amendment to apply retroactively.”]

The instruction on kidnapping for extortion did not misstate the law. The jury was instructed that “the crime of kidnapping for extortion continues until a defendant has reached a place of temporary safety.” Frandsen argued this instruction misstated the law because kidnapping for extortion is complete when a person seizes a victim with intent to extort. However, 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. There was no instructional error and, in any event, this claim was forfeited for lack of objection at trial.

There was substantial evidence to support defendant’s conviction for kidnapping for extortion. Frandsen argued there was insufficient evidence he aided and abetted Huang in kidnapping the victims for extortion, as the crime was already in progress when Frandsen arrived at Huang’s house. However, an aider and abettor need not have advance knowledge of the crime or the perpetrator’s intent. Rather, aiding and abetting can be committed on the spur of the moment, instantaneously with the criminal act itself. Thus, even assuming Frandsen had no idea the victims were at Huang’s house when Frandsen arrived, it was undisputed Frandsen participated in intimidating them, guarding them, and keeping them captive. There was also testimony that it was Frandsen’s idea to contact the victims’ families for money. Because the offense of kidnapping for extortion was not complete when Frandsen chose to participate in it, ample evidence showed he aided and abetted the offense.

The prosecutor did not commit misconduct during closing argument. During closing argument, the prosecutor told the jury the evidence showed Frandsen was guilty of two counts of first degree murder, even though the charges were only second degree murder and involuntary manslaughter: “It’s really a murder charged as an involuntary 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.” Because defendant failed to object, he challenged the prosecutor’s remarks through ineffective assistance of counsel. The court concluded there was no ineffective assistance. The prosecutor’s remarks did not imply the charges were reduced or that leniency had been extended to Frandsen and she expressly discussed the reasonable doubt standard in her closing. And, nothing in the record suggested the jury did not follow the court’s reasonable doubt instruction.

The trial court did not abuse its discretion in imposing victim restitution beyond what was imposed after defendant’s previous trials. At sentencing following his third trial, the court imposed additional victim restitution for newly claimed losses by one victim’s family. Frandsen argued that the increase in victim restitution violated double jeopardy. However, for purposes of double jeopardy, direct victim restitution to redress economic loss does not constitute punishment. The court’s order of additional victim restitution was well within its authority.

Defendant forfeited his fines and fees challenge under People v. Duenas (2019) 30 Cal.App.5th 680. On appeal, Frandsen relied on Duenas to challenge the imposition of the court operations assessment (Pen. Code, § 1465.8), court facilities assessment (Gov. Code, § 70373), and $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)) on due process grounds because the trial court did not make an ability to pay finding. Here, the court concluded Frandsen’s challenge was forfeited. Section 1202.4, subdivision (b) expressly contemplates an objection based on ability to pay and, given that defendant is in the best position to know if he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. Frandsen was thus obligated to object to the amount of the restitution fine and demonstrate why he could not pay more than the $300 minimum. His failure to do so was not excused because it would not have been futile under the law in effect at the time of sentencing. As to the court facilities and court operations assessment, nothing prevented Frandsen from making a record of his inability to pay, or making the same request for a hearing that Duenas herself made in the face of these same mandatory assessments. Frandsen’s failure to do so cannot be excused on foreseeability grounds because the Duenas decision was foreseeable, as it was based on old rather than new law.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B280329.PDF