P. v. Huang

Filed 10/2/07 P. v. Huang CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County and petition for a writ of habeas corpus, Susan M. Speer, Judge. Judgment affirmed; petition denied.

Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________

Shane Huang found Ben Wertzberger and Adar NeEman entering his house, accused them of stealing his marijuana, took them captive at knifepoint, killed them, and disposed of their bodies in the desert. Huang was arrested, charged, and ultimately convicted of two counts of first degree murder with a true finding on a multiple murder special circumstance allegation, and sentenced to state prison for two terms of life without the possibility of parole. Huang appeals and petitions for habeas corpus relief, challenging the sufficiency of the evidence and the adequacy of trial counsels representation, and contending there were instructional errors. We reject all of Huangs contentions, affirm the judgment, and deny the habeas corpus petition.

FACTS

A.

In June 2002, Huang rented a four-bedroom house in Canoga Park where he conducted a large scale marijuana growing operation. Huang and Jamil Kharboutli lived in the house (although both also lived elsewhere at various times). Huang hired Wertzberger to tend the plants and gave him a rent-free room in the house as payment.[1]

Wertzberger moved out of the house in October 2002, and went to Las Vegas where he rented a room from Eric Tjemsland. During the last week in November, Wertzberger returned to Los Angeles and from November 25 to November 27 or 28 stayed in North Hollywood at Doron Kochlis apartment. On Friday night, November 29, Wertzberger worked as a D.J. at a Los Angeles party attended by Huang and Kharboutli. NeEman was visiting Wertzberger from Israel and he too was at the party.

B.

On Saturday morning (November 30), Huang called Frandsen and asked him to come to the house. Frandsen and Turner (roommates and former Marines), drove to Canoga Park and found Huang holding a sword and a rifle and acting as though he was afraid for his life. Huang told Frandsen and Turner that he had arrived home to find someone in the house who he thought was trying to kill him. Turner and Frandsen took the weapons to clear the house but did not find anyone, although they did find several overturned and empty marijuana pots. Huang, Turner, Frandsen, and David Shorter went out to breakfast, where Huang angrily complained that he had been ripped off.

C.

At about 10:30 a.m. on Monday, December 2, Wertzberger and NeEman went to Kochlis apartment and told Kochli they were going to Las Vegas, but that Wertzberger first had to repay a loan to Kharboutli. At about noon that day, Huang called Kharboutli, cursing and saying he had caught the people who had ripped him off on November 30. Kharboutli left immediately for the Canoga Park house, followed a bit later by Pistone (who had been with Kharboutli at the time Huang called).

By mid-afternoon, Huang, Kharboutli, Turner, Frandsen, and Pistone were at the Canoga Park house where they were holding Wertzberger and NeEman captive on a couch. Huang was very angry, yelling and . . . doing the things that a guy does who is angry and yelling, using some kind of Japanese sword to threaten Wertzberger and NeEman. Huang told the others that he had caught Wertzberger entering the house through a window, had put a knife to him and walked him back to his car where NeEman was waiting, and then at knifepoint forced Wertzberger and NeEman into the house. Huang said it was Wertzberger and NeEman who stole marijuana from the house on November 30.

In a bedroom where the victims could not hear him, Huang talked to Pistone and Kharboutli (with Turner and Frandsen walking in and out of the room) about killing Wertzberger and NeEman and getting away with it, and leaving their car in another state. Kharboutli responded, Oh, youd have to kill me too, and Pistone said Huang couldnt be serious. At some point, Wertzberger admitted he stole marijuana from Huang, and Huang went to Wertzbergers car to get his wallet. Turner brought the victims luggage into the house and went through it, then repacked it and put it back in the car. Huang gave Frandsen $1,500 or $2,000, and later gave him another $1,500. Wertzberger changed his story and said he hadnt taken any marijuana. Pistone spit in his face.

At about 6:00 p.m., Huang and Frandsen left the house and went to Charles Detorres apartment (Detorre and Huang had been friends for several years). Huang told Detorre he had caught two kids from Israel who broke into his house and said they were still at his house with Turner. When Huang asked Detorre what he should do, Detorre told Huang to beat the shit out of them. Huang and Frandsen left, arriving back at the Canoga Park house with sandwiches and a new shovel and rope from a Home Depot store. Kharboutli told Pistone they wanted to scare the victims (who were kept on the couch while the others ate their sandwiches). Using the new rope, Huang bound the victims hands and feet. At about 7:30 p.m., Pistone and Kharboutli left the house. Turner left the next morning, leaving Huang and Frandsen at the house with the victims (and Turner did not see Frandsen again until December 4 or 5 when Frandsen returned to their apartment).

D.

At about 6:00 p.m. on Tuesday, December 3, Turner called Huangs cell phone, and Huang told him he was in Las Vegas taking care of the kids. At 6:41 p.m., Wertzbergers car was ticketed on a downtown Las Vegas street. At 7:37 p.m., NeEmans credit card was declined for an $8,000 purchase at a Best Buy store in Las Vegas. At 7:42 p.m., NeEmans credit card was used to purchase clothing at a Las Vegas store. At 8:49 p.m., the card was used at an Outback restaurant in Las Vegas.

On Friday evening, December 6, Huang stopped by Frandsens and Turners apartment. When Turner asked what had happened to the Israeli guys at the Canoga Park house, Huang said he had escorted them back to Las Vegas and left them there to make sure they would not call the police about the marijuana operation. Huang showed Frandsen and Turner new clothes he had purchased in Las Vegas, including shoes with a star-type pattern, explaining that he had used NeEmans credit card to buy the clothing.

E.

Meanwhile, NeEmans mother, Sylvia NeEman, had expected him to call her in Israel on December 2. When he didnt call at the arranged time, Mrs. NeEman called Wertzbergers cell phone, which was answered by a man with an American accent who quickly hung up. Mrs. NeEman called again, and when the same man answered she explained who she was and expressed her concern about NeEman. The man told her Wertzberger and NeEman were at the mall. Mrs. NeEman tried several times during the next few days to reach Wertzberger and NeEman, to no avail, and efforts by others to reach Wertzberger by phone were equally unsuccessful.[2]

In mid-December, Mrs. NeEman hired a private investigator, and in January 2003 flew to Los Angeles with Yonna Wertzberger (Wertzbergers mother) to look for their sons. In Los Angeles, Mrs. NeEman contacted the Los Angeles Police Department, which referred her to the Las Vegas Police Department, which conducted an investigation. In February, Mrs. NeEman contacted the FBI, which also conducted an investigation.

F.

During three separate searches of the Canoga Park house, the FBI recovered the equipment used to grow marijuana, a large amount of marijuana and other drugs, about $1,000 in cash, a .22-caliber rifle, ammunition, a small explosive device, a samurai-type sword, $10,500 in cash found in a jacket in Huangs closet, and a pair of shoes with a star-type pattern. FBI agents interviewed Joe Pistone in August and again in September, at which time he told the agents what had happened at the house on December 2, 2002, and agreed to meet with Huang while wear[ing] a wire.

On September 12, Pistone met with Huang at a Starbucks.[3] Pistone said his neighbors had told him that FBI agents were looking for him and asking questions about Kharboutli (who had left the United States). Huang said, Let me tell you about my experience, and said he had told the agents that Wertzberger had asked him to rent the house and had given him $1,500 in cash each month to pay the rent. Huang said he told the agents he had not known about the marijuana operation. When Pistone asked what he should do when questioned, Huang told him, I would say you werent involved, you dont know.

Pistone asked, How can I lie, dude? I mean, I cant lie. You guys -- I mean, what happened to [Wertzberger and NeEman]? I mean . . . we left em at your house. When Pistone reminded Huang that he had seen him with a shovel, Huang at first said he did not remember, then said, Youre right. You did. Youre right. You did. Pistone said he did not want to be involved and that he would not lie when questioned by the FBI. When Pistone asked Huang what he expected him to do, Huang said, I expect you to just be quiet and not implicate yourself in anything, period. When Pistone pressed, Huang responded, Can I just say keep your mouth shut?

Pistone then said, if youre telling me that you had something to do with it, then Im just gonna keep my mouth shut. Huang interrupted him, asking But why cant I just tell you to keep your fuckin mouth shut. Why cant you do that? Huang expressed concern that they were being taped or watched, and told Pistone that he did not completely trust him: What you are asking me for right now . . . is to admit guilt to you right now. They went for a walk and resumed talking. According to the transcript, Huang said, [Unintelligible] imagine [unintelligible] if you were involved in something really bad and you were in my shoes and I showed up and said just tell me whether you did it [unintelligible]. Im telling you to be quiet.

Pistone persisted, saying again that he knew the victims had been at the house. Huang said, Yeah that could cause a lot of fuckin complications. . . . I dont know how to fix it . . . . Pistone asked whether Huang wanted him to lie to the FBI. Huang said, If I were you I would, I dont know. If I were you I would. I really would, I really would. But the alternative is to say look, Im not gonna talk to you, you can talk to my lawyer. Pistone responded, Yo, like I have money for a lawyer, to which Huang replied, Yeah, Ill pay for a lawyer for you. When Pistone asked again whether Huang wanted him to lie, Huang said, I would if I were you. Id be appreciative.

Pistone again reminded Huang that he was at the house when Huang returned from Home Depot with fuckin shovels and fuckin ropes and all kinds of shit. At that point, Huang invited Pistone to his house so he could get into his Jacuzzi and show Huang that there [were] no wires on [him]. Huang added, Thats how Ive been living . . . . I live my whole life now as if Im being listened to and watched at all times. See that? And what youre asking me to do is do something that totally fucks with that and totally makes me have a risk for no reason other than -- I dont know. For you to know information that you really dont wanna know. At that point the FBI arrested Huang.

G.

On September 19, based on information obtained from Frandsen, FBI agents searched a campground about 40 miles north of Barstow. After an extended effort involving shoulder to shoulder agents, two helicopters, and a cadaver-sniffing dog, the victims decomposing bodies were found on September 21. The bodies were clothed except for shoes.[4]

Huang was charged with two counts of first degree murder with a multiple murders special circumstance allegation. (Pen. Code, 187, subd. (a), 190.2, subd. (a)(3).)[5] At trial, the People presented evidence of the facts summarized above. In defense, Huang presented the testimony of four witnesses, one from each of the places in Las Vegas where NeEmans credit card had been used -- in an attempt to show that the victims had been seen alive on December 3. The essence of his defense was that the People had not tied him to the murders by any direct or physical evidence and that he was not the murderer.

Huang was convicted as charged and his motion for a new trial was thereafter denied.

DISCUSSION

I.

Huang contends his murder convictions cannot stand because the People failed to introduce any direct or physical evidence that he was the killer, and relied instead entirely on circumstantial evidence from which the jury could only speculate as to [his] guilt. We disagree.[6]

A.

The question is not whether the People relied on direct or circumstantial evidence but whether the evidence, examined in the light most favorable to the judgment, is sufficient to permit a reasonable jury to conclude beyond a reasonable doubt that Huang committed the murders. (People v. Bloom (1989) 48 Cal.3d 1194, 1208; People v. Ramirez (2000) 79 Cal.App.4th 408, 413-414.) Accordingly, the question is whether substantial evidence establishes the elements of premeditated murder -- that Huang deliberately and with premeditation killed the victims with malice aforethought. ( 187, subd. (a); People v. Memro (1995) 11 Cal.4th 786, 862-863; People v. Perez (1992) 2 Cal.4th 1117, 1123; People v. Bloyd (1987) 43 Cal.3d 333, 348.)

As our Supreme Court has recognized, evidence of a defendants state of mind is almost inevitably circumstantial -- and circumstantial evidence is as sufficient as direct evidence to support a conviction. (People v. Bloom, supra, 48 Cal.3d at p. 1208.) For this reason, premeditation and deliberation are most often shown by evidence of planning activity, motive, and the manner of killing. (People v. San Nicolas (2004) 34 Cal.4th 614, 657-658.)

B.

The evidence against Huang established that he grew marijuana at the Canoga Park house; that he believed the victims had entered the house on November 30 and ripped him off; that he caught Wertzberger entering the house on December 2, and at knifepoint forced Wertzberger and NeEman into the house; that he believed Wertzberger and NeEman were trying to steal more marijuana; that Huang, with help from Frandsen, Turner, and the others held the victims at the house for several hours, during which time Huang brandished a sword and threatened to kill both victims; that Huang went to buy rope and a shovel, and used the rope to bind the victims hands and feet; that Huang and Frandsen were alone with the victims after the other men left; that Huang traveled from Los Angeles to Las Vegas on December 3; that the victims were buried in the desert between Los Angeles and Las Vegas; that Wertzbergers car was abandoned in Las Vegas on December 3; and that Huang told Pistone to lie to the FBI about the events of December 2 and offered to pay for a lawyer for Pistone.

Although it is true, as Huang contends, that no physical evidence links him to the killings, the evidence just listed establishes all of the elements of premeditated murder -- motive, opportunity (including physical control over the victims as described at trial by both Pistone and Turner), planning (the trip to purchase a shovel and the rope), a temporal relationship between Huangs control and the victims disappearance, and a consciousness of guilt (by Huangs use of NeEmans credit card to cover his tracks and Huangs effort to persuade Pistone to lie to the FBI agents). No more is required.

II.

On appeal, Huang claims trial counsel was ineffective because (1) he promised the jurors during opening statement that they would hear from two defense witnesses (Lyndsay Griffin and Sean Edmondson) who would testify that Frandsen had admitted that he murdered the victims but then failed to produce those witnesses; (2) his cross-examination of Pistone was inadequate; and (3) during closing argument, he misrepresent[ed] the content of Huangs tape recorded conversation with Pistone. Huang raises the same issues in his habeas corpus petition, and also claims that trial counsel was ineffective (4) for failing to adjust the defense to counteract the prosecutors reliance on a felony-murder theory. None of these claims have any merit.

A.

To obtain relief on a claim of ineffective counsel, Huang must establish both that trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and that it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings (which can be shown when the result of the trial was fundamentally unfair or unreliable). (People v. Lewis (1990) 50 Cal.3d 262, 288; Strickland v. Washington (1984) 466 U.S. 668, 694.) When the record sheds no light on why counsel acted or failed to act in the manner challenged, the presumption in favor of the judgment usually prevails and the defendant is left to his remedy by way of habeas corpus. (People v. Pope (1979) 23 Cal.3d 412, 426.)

B.

We reject Huangs claim that trial counsel was ineffective because he promised to but did not call two witnesses who would have testified that Frandsen had admitted that he murdered Wertzberger and NeEman. Although a trial lawyers failure to present promised evidence may support claim of ineffective counsel (People v. Corona (1978) 80 Cal.App.3d 684, 719; McAleese v. Mazurkiewicz (3d Cir. 1993) 1 F.3d 159, 166), it is not error per se (People v. Burnett (2003) 110 Cal.App.4th 868, 885) and will not result in a reversal where, as here, the failure to fulfill the promise could not possibly have affected the outcome of trial (Strickland v. Washington, supra, 466 U.S. at p. 694). Had Griffin and Edmondson testified as promised -- that is, that Frandsen admitted his involvement in the murders -- it would not have affected the outcome of this trial.

Frandsen did in fact admit to his involvement in the crimes (as noted above, he was the one who told the FBI where to find the bodies). Because Frandsens statements to the FBI implicated Huang, Huangs trial lawyer succeeded in his pretrial efforts to exclude any reference to Huang -- indeed, it was due to trial counsels efforts that the trial court rejected the prosecutors claim that Frandsens statements were wholly admissible, and that the parties ultimately stipulated that the jurors would be told only that, after the FBI agents talked to Frandsen, the agents received information that led them to the bodies (and an FBI agent testified to those limited facts). Insofar as the appeal is concerned, the record is clear that everyone, including the jurors, understood that Huang and Frandsen were the prime actors in the capture of the victims, their murders, and their burials and that, whichever one actually killed the victims, the other was guilty as an aider and abettor. As to the appeal, no error is shown.

The habeas corpus petition makes it clear that, in fact, trial counsel made a tactical decision not to call the witnesses. In a supporting declaration, Huangs appellate counsel states that he spoke to trial counsel by telephone on December 15, 2006; that he asked trial counsel why he had failed to call Lyndsay Griffin and Sean Edmondson as witnesses to testify about Benjamin Frandsens confessions to the charged murders; that trial counsel said that he was concerned if he introduced this evidence, the trial court might admit other out-of-court statements Mr. Frandsen made which could harm the defense. In our view, trial counsel made the right decision -- and the most that he can be faulted for is making the promise in the first instance, a promise that we do not believe could possibly have affected the outcome in this case.[7]

As the trial court noted when it denied Huangs motion for a new trial, a defendant is entitled to a fair trial, not a perfect trial -- and Huang certainly had a fair trial. As the court put it, trial counsel, one of the finest defense attorneys in the country, did an outstanding job with a very difficult case. His representation was vigorous, thorough and effective. He conducted a thorough investigation and discovery. He conducted an effective voir dire and opening statement. He presented an effective defense. He kept out a lot of very damaging evidence and he effectively cross-examined the Peoples witnesses and diminished their credibility in many regards. His closing argument was excellent and compelling. He created plausible alternative theories for the perpetrators of the murders, including one suspect [the court] believe[d] was a complete fabrication. . . . The defendant in no way was denied effective assistance of counsel or a fair trial . . . . Nothing suggested in the . . . motion, if done, would have potentially changed the outcome of the case.

The appellate record and habeas corpus petition together show that trial counsels decision to skip the promised witnesses was tactical, and that the decision in no way deprived Huang of a fair trial. Evidence that Frandsen had confessed would have done nothing more than confirm the circumstantial evidence that he and Huang were the primary culprits (which is why the jury was instructed about Huangs criminal liability as an aider and abettor). Moreover, the presentation of that evidence by the defense would almost certainly have cost the defense the favorable ruling excluding Frandsens statements, the admission of which would have further implicated Huang, not absolved him from the murders.

C.

According to Huang, trial counsel should have highlighted the recency [sic] of Pistones story that Huang had said he used a knife to force the victims into the Canoga Park house. Had this been done, claims Huang, the jurors might have rejected the prosecutors felony-murder theory. We disagree.

1.

The prosecutors argument offered the jurors two different ways to get to first degree murder: felony murder for a kidnapping or willful, deliberate, premeditated first degree murder. You do not have to be unanimous as to which theory, but you have to be unanimous as to the degree of first degree murder in this case. He then argued that the evidence showed that Huang had kidnapped the victims when he used a knife to move them from Wertzbergers car into the house, and suggested that felony murder was the simplest way to show first degree murder -- but then discussed premeditated murder in detail and explained to the jurors how the evidence supported both theories. As noted above, Huangs defense challenged the Peoples proof, suggesting the witnesses against him were not credible. The jury deliberated a little more than one full day before reaching its verdicts (from 11:30 a.m. one day, to 3:45 p.m. the next day).

2.

It is inconceivable that further cross-examination could have accomplished anything. Trial counsel thoroughly cross-examined Pistone (filling more than 70 pages of the reporters transcript) and challenged his credibility on a number of grounds -- that Pistone knowingly worked for and befriended the people involved in the marijuana growing business, that he had lied to the FBI agents, that he was involved in the capture of the victims, and that his testimony was inconsistent with Turners testimony. Questions about recent fabrication would not have added anything -- particularly since the jury almost certainly accepted both of the prosecutors theories and found Huang guilty of premeditated murder as well as felony murder.

D.

Huang contends trial counsel made a misrepresentation to the jury during closing argument and that it adversely affected the outcome of the trial. We disagree.

1.

Trial counsels closing argument began one afternoon and continued over to the next morning. He highlighted the absence of any direct or physical evidence linking Huang to the killings and extensively attacked the credibility of the Peoples witnesses. He argued that the victims were alive in Las Vegas at a time the People claimed they were already dead. In the middle of all this, he discussed the transcript of the tape recording made of Huangs conversation with Pistone, stated that the transcript had been edited up to the time of trial, and then argued:

First thing I want to tell you is this: You got an instruction on this. The transcript that you have is not the evidence. . . . Pistone said that the transcript was pretty accurate. Okay? Thats what he said. [] The tape is the evidence. And I want to point out one thing to you and I think this is very, very important and Im going to ask you to consider this when you go back into the jury room. [] The transcript -- and its in evidence, I want you to look at it -- is only a guide. Okay? Its to help you. But if theres something on the tape thats different than on the transcript, of course you are going to go by the tape. . . .

And theres one big glaring error here and I would like if some of you would care to write this down, I think this is very, very important. This on page 14 -- actually it starts on page 13 -- . . . . Pistone says, Dude, come on, dude. I mean you think -- I mean its pretty obvious, I mean it , isnt it? I mean I saw you with the shovel and shit and all that. [] . . . Huang says, Huh? Im sorry, . . . Huang says, Dude. Pistone says, What do you mean, dude? Come on. And then the transcript has . . . Huang saying at line two, You are right, you did, you are right, you did.

I want you to listen to it. You know what . . . Huang actually says. You know what he really says? He says, You are lying. Listen for it. He doesnt say, You are right. He says, You are lying. [] And he says in this transcript, this Pistone transcript several times that he doesnt know what happened to these people and, yeah, hes concerned about it, hes concerned about it, concerned what happened. Nobody would want to be around with two people missing because you are going to be the object of scrutiny. They are going to find out about the marijuana. [] This is a guy who is going for his M.B.A. He doesnt need this. But every time hes asked what happened to . . . these young men, he says he doesnt know.

So even if hes telling Pistone to stick with the story, it doesnt mean he had anything to do with the killing of these people. I want you to please listen to this tape and look for the important things on the transcript because if you do that, youll see that there are really no admissions, there are only denials about his liability with regard to these young men. And theyre on many, many places so this is important for you to listen to.

2.

In response, the prosecutor argued to the jury this way:

And remember you were told [by defense counsel that the transcript contains] a big error. It doesnt say youre right, it says, youre lying. And I thought, Oh my God, could I be wrong? . . . I better take this tape and listen to it. [] So I took it down and I gathered my agents and we got a tape recorder and we listened to it. And we listened to it again and again and again. And, in fact, . . . the tape is cued right up so you can turn to the transcript, its the bottom of pages 13 to 14, and you can listen to it yourselves.

And I will submit to you that what you will hear is not youre lying, youre lying, but, as the transcript says, youre right, you did, youre right, you did. Because . . . would it even make sense if it said, youre lying, you did, youre lying, you did? That wouldnt even make sense. [] And then like do you rely on the transcript or not? I guess if its admissions of [Huang] about the crime or Pistone telling his story, its not true, but if it has to do with Kharboutli and the Russian mob, then you believe the transcript because then on those parts its very telling. [] The tape corroborates the core version of events: the victims being held, the trip to Home Depot and most importantly that Pistone and Kharboutli leave and the victims are still there with Huang.

3.

We simply cannot see how this argument could possibly have affected the outcome of the trial. Defense counsel did not misrepresent the content of the tape -- all he said was that the transcript was incorrect. He offered his own opinion about what Huang had said. We flatly reject Huangs suggestion that the jurors thought trial counsel was trying to dupe them (and thus rejected all of his argument). Given how little he had to work with, it is a wonder that defense counsel was able to do as much as he did.[8]

E.

Finally, Huang contends in his habeas corpus petition that trial counsel did not adequately adjust the defense to address the prosecutors felony-murder theory. We disagree.

In his declaration supporting the habeas petition, appellate counsel states that during their December 2006 telephone conversation, trial counsel acknowledged that the prosecutions kidnapping-based felony-murder theory had caught him completely off guard. He said that he did not realize the prosecutor was pursuing this theory of first degree murder until the jury instruction conference after the close of evidence when the prosecutor requested instructions on felony-murder occurring during the perpetration of a kidnapping. [Trial counsel] also told me that because this felony murder theory took him by surprise, he failed to focus on requesting any favorable instructions to counteract this theory of culpability.

Noticeably absent from Huangs petition is any suggestion about what it is that trial counsel could or would have done differently had he not been surprised. Would he have changed Huangs defense? To what? What other or different instructions would have been requested? Appellate counsel doesnt even speculate about what more could have been done -- and this is because it is plain that, on these facts, all that could have been done was done. Huang conveniently ignores the fact that it was at trial counsels express request that the jury was not instructed on any lesser included offenses -- not second degree murder or manslaughter. The trial court accepted his tactical decision to stand by his defense -- that the prosecutor had not proved his case beyond a reasonable doubt because there was no direct evidence linking Huang to the murders. Given this decision and the fact that it was apparent from the outset that the prosecutor was proceeding on alternative theories, we are satisfied that Huang was not deprived of the effective assistance of counsel.

III.

Huang contends the judgment must be reversed because the trial court failed to sua sponte instruct the jury that no kidnapping occurs where the movement of a person is for purposes of a lawful arrest, and that, to be liable under a theory of felony murder, the kidnapping and act causing death must be part of one continuous transaction. We disagree.

A trial courts duty to instruct sua sponte exists only with regard to general principles of law relevant to the issues that are supported by substantial evidence. (People v. Blair (2005) 36 Cal.4th 686, 745; People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) Because there is no evidence at all (and Huang does not point to any) suggesting that he held the victims for purposes of a lawful arrest, the trial court was not required to instruct the jury that no kidnapping occurs when a victim is held for a lawful arrest. (People v. Barnett (1998) 17 Cal.4th 1044, 1150-1152 [defendant is not entitled to a lawful arrest instruction when there is no evidence from which a reasonable juror could infer that the defendants actions were undertaken pursuant to a claimed arrest].) The kidnapping evidence shows that Huang and his cohorts held the victims at knifepoint for several hours, threatening them with bodily harm and death because they had stolen some marijuana plants.

We reject Huangs other claim of instructional error for the same reason -- if, as the jury found, Huang was involved in the murders, there is no evidence at all that the kidnapping terminated before the murders occurred. To the contrary, all of the evidence suggests that it was one long and violent course of conduct or one continuous transaction. (CALJIC No. 8.21.2; CALCRIM No. 549; People v. Cavitt (2004) 33 Cal.4th 187, 204.)[9]

IV.

We summarily reject Huangs challenge to the trial courts order that he pay $11,794.20 to the Victim Compensation Board. ( 1202.4, subd. (f).) Given Huangs failure to question the order or the amount in the trial court, there is no basis for his challenge on appeal. As always, we presume the trial courts orders are correct (People v. Davis (1996) 50 Cal.App.4th 168, 172) and will not reverse unless the record affirmatively shows otherwise.

V.

By a supplemental letter brief filed with our permission after oral argument, Huang contends the trial court should have sua sponte instructed the jury according to CALJIC No. 8.80.1 that a nonkiller must have harbored an intent to kill before the jury [could] find a multiple-murder special circumstance allegation true. As the Attorney General properly concedes, the instruction should have been given because the prosecutor presented the case on alternate theories -- that Huang personally committed the two murders and that he was guilty as an aider and abettor who was not the actual killer. ( 190.2, subds. (c), (d).)[10] The question, then, is whether the error was harmless under the Chapman standard. (Chapman v. California (1967) 386 U.S. 18, 24; Yates v. Evatt (1991) 500 U.S. 391, 402-403 [the question is whether it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained].) We agree with the Attorney General that the error was harmless.

We presume that the jury -- which was instructed properly about the presumption of innocence and the burden of proof (CALJIC No. 2.90), and that it could not find the special circumstance allegation true unless it found Huang guilty of at least two counts of murder and did so based on something other than the mere testimony of an accomplice (CALJIC Nos. 8.81.3, 8.83.3) -- faithfully followed the courts instructions and applied them to the special circumstance allegation as well as the murders. (People v. Smith (2007) 40 Cal.4th 483, 517-518.) More to the point, overwhelming evidence established not just Huangs status as an aider and abettor, but that he was one of two major participants whose only possible intent could have been to murder both victims (or, at a bare minimum, that he acted with a reckless indifference to human life). ( 190.2, subds. (c), (d); Tison v. Arizona (1987) 481 U.S. 137, 158 [major participation and reckless indifference to human life often overlap].)

The prosecutors closing argument shows the intent requirement was plainly presented to the jury. After discussing the reasons the jurors should find that Huang was guilty of two murders as the actual killer, the prosecutor continued thus: However, theres a few more steps if the person is not the actual killer. If you find that [Huang] himself was not an actual killer, you cant find the special circumstance to be true unless you are satisfied beyond a reasonable doubt [of] one of two things: that [Huang] with the intent to kill aided and abetted . . . the first degree murder or with reckless indifference to human life and as a major participant aided and abetted the kidnapping which resulted in death. (Emphasis added.) In effect, the prosecutor told the jurors the requirements spelled out in the omitted instruction.

As explained above, this was not a close case. Huang forced Wertzberger and NeEman at knife-point into the Canoga Park house where the victims were held captive while Huang and Frandsen went out to buy rope and a shovel. Huang bound the victims hands and feet, then asked his cohorts whether anybody [had] a problem if [he] kill[ed] these guys. In Las Vegas, Huang used NeEmans credit card to make it appear that NeEman was still alive on December 3. Back in Los Angeles, Huang told Pistone to lie to the FBI and Huang offered to pay for Pistones lawyer. In short, Huangs active involvement in every step of the murders, from planning to execution to flight, leaves no doubt whatsoever about his specific intent to kill the victims.

DISPOSITION

The judgment is affirmed. The petition is denied.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, P.J.

JACKSON, J.*

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] A few details about the participants: In addition to his marijuana business, Kharboutli booked D.J.s for parties and Wertzberger, an Israeli citizen also known as Ben Berger, worked as a D.J. Krista Augius lived with Wertzberger at the Canoga Park house during September but moved out when she found out about the marijuana crop. NeEman, an Israeli citizen and resident, was visiting Wertzberger in Los Angeles. Joseph Pistone regularly did plumbing and electrical work at the Canoga Park house and had known Kharboutli for several years. Daniel Aeberhard and Doron Kochli were friends of Huang and Kharboutli and both visited the house at various times. Nick Turner and Benjamin Frandsen had been friends since childhood, and both were friends with Huang. Frandsen was charged in the same information as Huang, but Frandsen admitted his involvement, the cases were severed, and Frandsen was tried separately -- but the result was the same; he was convicted of both murders, and the multiple murders special circumstance allegation was found true as to him. For reasons having nothing to do with the issues in our case, Division Eight of our court recently reversed Frandsens convictions. (People v. Frandsen (Sept. 11, 2007, B191189) [nonpub. opn.].) Turner was also charged but he pled guilty to two counts of false imprisonment and testified against Huang.

[2] During the first week in December, Daniel Aeberhard (a friend) tried to call Wertzberger every day but could only reach his voice mail. The last time Aeberhard called, a man answered and said he had found the phone in East Los Angeles. Two or three days after Wertzberger and NeEman had told Kochli they were going to Las Vegas, Kochli tried twice to reach Wertzberger on his cell phone; the second call was answered by a person who said the number was no longer assigned to Wertzberger and who told Kochli to check a website, djbenberger.com. When Kochli checked the website, he learned Wertzberger was missing.

[3] The conversation was recorded, and both the tape and a transcript of the tape were presented to the jury.

[4] Autopsies revealed blunt force trauma to the front of NeEmans neck that could have been fatal, and a split and fractured vertebrae in his neck. There were no detectible injuries on Wertzbergers body but a forensic pathologist explained at trial that they could have disappeared with the decomposition of the body. Both deaths were homicides.

[5] All section references are to the Penal Code.

[6] Our conclusion that substantial evidence supports the convictions on the premeditated murder theory makes it unnecessary to consider the Attorney Generals alternative theory that the convictions can be sustained under the felony-murder rule with kidnapping as the underlying felony. For the record, however, we note that substantial evidence supports the convictions on both theories.

[7] According to appellate counsel, trial counsel agreed to give him a declaration confirming the statements made during their telephone conversation but then refused all of appellate counsels requests to do so.

[8] Huangs habeas petition adds nothing to this argument. In appellate counsels supporting declaration, he says that trial counsel told him he had mistakenly failed to cross-examine Joe Pistone on the recency of his claim to the FBI that Mr. Huang told him he had brought Ben Wertzberger and Adar NeEman into the house at knife point after catching Mr. Wertzberger entering through a window. As explained in the text, further cross-examination would not have added anything meaningful.

[9] We summarily reject Huangs related contention that the trial court should have sua sponte instructed the jury on the lesser offense of involuntary manslaughter. As noted above, the trial court accepted trial counsels decision to go for broke, an approach that is perfectly understandable in light of the defense presented. (People v. Hernandez (2003) 111 Cal.App.4th 582, 590; People v. Lang (1989) 49 Cal.3d 991, 1031-1032; People v. Valdez (2004) 32 Cal.4th 73, 115-116; People v. Russell, supra, 144 Cal.App.4th at p. 1424; People v. Hardy (1992) 2 Cal.4th 86, 182-183.)

[10] As relevant, subdivisions (c) and (d) of section 190.2 provide: (c) Every person, not the actual killer, who, with the intent to kill, [aids and abets] the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole . . . . [] (d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, [aids and abets] in the commission of [an enumerated] felony . . . which results in the death of some person or persons, and who is found guilty of murder in the first degree therefore, shall be punished by death or imprisonment in the state prison for life without the possibility of parole . . . .