Where defendant participated in ongoing imprisonment of victim who tried to escape, trial court correctly instructed jury that defendant was not entitled to claim imperfect self defense. Defendant Huang grew marijuana plants in his Conoga Park house. Victim Wertzberger lived in Huang’s house rent-free in exchange for plant care, but left his job when he moved to Las Vegas. Several months after Wertzberger moved out, Huang discovered his plants had been removed and was convinced Wertzberger took them. He summoned associates, including Frandsen, to extract a confession and reparations. Huang detained Wertzberger and his childhood friend, Neeman, at his house. Over a number of hours, Wertzberger was “interrogated” in the bathroom by Huang while Frandsen sat with Neeman. When Neeman heard a snapping sound coming from the bathroom, he grabbed a metal object and charged the door in an effort to escape. Frandsen hit Neeman in the neck, after which Neeman was strangled. The bodies of Wertzberger and Neeman were found months later in a desert grave. Frandsen’s first conviction for two counts of murder was reversed for instructional error. In a retrial, he was found guilty of the second degree murder of Neeman and the involuntary manslaughter of Wertzberger.
The trial court’s imperfect self-defense instruction was correct. Frandsen maintained he was defending himself against Neeman’s charge when he hit Neeman in the neck; he did not intend to kill him. After the jury asked whether, as the aggressor, Frandsen was entitled to invoke imperfect self defense, the court instructed regarding an aggressor’s right to imperfect self defense in a mutual combat situation — i.e., if the defendant started the fight and the opponent responded with sudden and deadly force such that the defendant could not withdraw from the fight, then defendant could defend with deadly force. Regarding imperfect self defense, the court instructed it did not apply if a defendant’s conduct creates circumstances in which the adversary is legally justified in resorting to self defense against the defendant. Frandsen contended the imperfect self defense instruction erroneously excluded the “sudden escalation” exception applicable to the mutual combat instruction. However, it was not Neeman who escalated matters, it was Huang, murdering Wertzberger; Neeman sought to defend himself. By guarding Neeman, Frandsen was participating in ongoing criminal acts. Further, the “sudden escalation” exception has never been applied to imperfect self defense. Because Frandsen was the initial aggressor and Neeman’s response was legally justified, Frandsen could not rely on imperfect self defense as a ground for voluntary manslaughter.