Filed 7/1/26 P. v. Huang CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B343820
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA048045)
v.
SHANE HUANG,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
Defendant and appellant Shane Huang challenges the
superior court’s denial of his petition for resentencing under
Penal Code section 1172.6.1 A jury convicted Huang of two
counts of first degree murder (§ 187, subd. (a)) with a multiple-
murder special circumstance (§ 190.2, subd. (a)(3)) for his role in
killing Ben Wertzberger and Adar Ne’Eman in 2002. After an
evidentiary hearing, the superior court found beyond a
reasonable doubt that Huang actually killed both victims, and
that even if he did not, the only reasonable inference would be
that he acted with the intent to kill in aiding and abetting his
coconspirator Benjamin Frandsen. In addition, the court found
that Huang was a major participant in kidnapping the victims
and acted with reckless indifference to human life in doing so.
Huang thus remained guilty of murder under current law,
rendering him ineligible for resentencing.
Huang contends the court erred by refusing to admit
testimony from Frandsen’s separate murder trial at the
evidentiary hearing. He also argues that no substantial evidence
supports the superior court’s finding that he remains guilty of
murder under current law. We reject Huang’s argument on
substantial evidence, and we conclude that any error in declining
to admit the testimony from Frandsen’s trial was harmless. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
Huang was tried separately from Frandsen in 2005. Upon
Huang’s conviction, the trial court sentenced him to life in prison
1 Unspecified statutory references are to the Penal Code.
2
without the possibility of parole. We affirmed the judgment on
direct appeal (People v. Huang (Oct. 2, 2007, B192819) [nonpub.
opn.]) and denied Huang’s petition for habeas relief (In re Huang
(Oct. 2, 2007, B196252) [nonpub. opn.]).
On August 2, 2023, Huang filed a petition for resentencing
under section 1172.6. The superior court found he made a prima
facie case for relief and issued an order to show cause why relief
should not be granted. (§ 1172.6, subd. (c).) After an evidentiary
hearing at which both the prosecution and defense offered new
live testimony, the superior court found beyond a reasonable
doubt that Huang remained guilty of murder under current law
and denied his petition.
B. Factual Background
The evidence at the evidentiary hearing included both the
transcripts of Huang’s trial as well as live testimony from Huang
and Frandsen. The following account incorporates both sources
of evidence.
1. Events Prior to the Murders
In the summer of 2002, Huang, a graduate business
student at the University of California, Los Angeles (UCLA),
rented a home in the San Fernando Valley to use in a marijuana
growing business. At the evidentiary hearing, Huang testified he
had three partners: Jamil Kharboutli, who oversaw the
operations, Joseph Pistone, a plumber and electrician who
installed the grow equipment, and Wertzberger, who lived in the
house and took care of the plants. Huang himself paid the rent
and handled the finances.
Wertzberger moved to Las Vegas in October 2002, and
Huang agreed to move into the house and take over
Wertzberger’s role. Wertzberger returned to Los Angeles in
3
November to perform as a DJ, hoping to earn enough money to
pay his December rent. On November 29, he went to the airport
to pick up his friend Ne’Eman, who had just arrived from Israel.
The same night, Huang saw Wertzberger at a club where he was
DJing.
On November 30, 2002, Huang’s house was burglarized and
a large amount of marijuana stolen. Huang believed the thieves
were still inside the house, and he called his friend Frandsen to
come over and help. Frandsen and his roommate, Nicholas
Turner, came over and searched the place, but they found no one
inside. Huang’s UCLA classmate David Shorter also came over
to help. Huang testified that he suspected the culprit was
Wertzberger, who was one of only a few people who knew about
the marijuana growing operation.
At some point in the afternoon of December 2, 2002, Huang
returned home to find Wertzberger’s car outside his garage.
Huang testified that he entered the home and found Ne’Eman,
whom Huang had never met before, in the living room going
through Huang’s possessions. Huang and Ne’Eman saw one
another, and Huang grabbed a martial arts sword and pointed it
at Ne’Eman. Huang also apprehended Wertzberger, who was in
the marijuana growing rooms. Huang called Kharboutli and
Frandsen and told them he had caught two people burglarizing
the house. Kharboutli, Frandsen, Pistone, and Turner all came
over.
At first, Huang and his partners were extremely angry at
Wertzberger and Ne’Eman. Turner and Pistone both said that
when they entered the house, Huang was holding his sword and
threatening the victims, who were sitting on a couch. Pistone
admitted he spat in Wertzberger’s face at one point. Turner
4
testified that Huang, Kharboutli, and Pistone took Wertzberger
into a bathroom, where Turner heard yelling and screaming.
When Wertzberger returned, he looked scared and shaken up.
According to Pistone, Wertzberger kept changing his story,
sometimes admitting he was responsible for the previous
burglary, other times denying it. Pistone testified that at one
point, Huang proposed killing Wertzberger and Ne’Eman.
According to Pistone, he and Kharboutli both talked Huang out of
the idea.
Eventually the anger dissipated, and Huang and Frandsen
went out to get food for everyone, including Wertzberger and
Ne’Eman. Huang and his partners tried to think of a way to
guarantee that Wertzberger would repay them for the stolen
marijuana. Turner testified that they devised a plan to call
Wertzberger’s and Ne’Eman’s families to confirm their identities
and addresses. The idea, according to Turner, was that
Wertzberger came from a prominent family in Israel, and if he
did not pay back the money, Huang and his partners would tell
the victims’ families that they were involved in drugs and
pornography.
Huang and Frandsen went to meet a friend named Ora
Vossen who spoke Hebrew and called Wertzberger’s and
Ne’Eman’s families. Turner testified that during this time,
Wertzberger and Ne’Eman were seated on the couch unbound,
watching movies and smoking marijuana with him and Pistone.
When Huang and Frandsen came back around 10:00 p.m., they
said they had confirmed the parents’ addresses. According to
Turner, Huang said he was going to let the victims leave.
Turner, believing the situation had resolved itself, left.
5
Pistone testified that Huang wanted to scare the victims
one more time in the hope they would reveal where the missing
marijuana was, after which he would let them leave. To this end,
Huang brought a shovel and some rope back from Home Depot
and bound the victims’ feet with it. Pistone testified that he left
the house while Huang was tying rope around the victims’ legs.
At the evidentiary hearing, Huang testified that when he
returned from meeting Vossen, a more tranquil mood prevailed.
Wertzberger and Ne’Eman were no longer detained on the couch,
but were walking around and using marijuana with Frandsen
and Turner. Wertzberger said that he had told his friend Steve
about Huang’s marijuana business, and that Steve must have
committed the first burglary. If Huang and his partners brought
him to Steve’s home, Wertzberger believed he could recover the
stolen marijuana from them. At around 11:00 p.m., Wertzberger
and Ne’Eman left together with Turner and Frandsen. Huang
claimed he did not make a trip to Las Vegas and had nothing to
do with killing the victims.
Two other witnesses testified that they met or spoke with
Huang that evening. Huang’s friend Charles Detorre testified
that Huang called him while he was watching Monday Night
Football and told him he wanted to meet with him. Huang and
Frandsen arrived, and Huang told Detorre that he had caught a
couple of kids who had broken into his home, and that Turner
was holding them at Huang’s home. Detorre advised them to
“beat the shit out of them and let them go.” Detorre saw Huang a
couple of days later, and Huang told him he had followed
Detorre’s advice.
Huang also made two phone calls to his classmate Shorter
at 10:46 and 10:53 p.m. According to Shorter, Huang seemed
6
stressed, and he told Shorter he needed to get out of town, but he
did not say why. Shorter was extremely upset because he and
Huang were scheduled to do an important presentation together
at school in a few days. The prosecution introduced a syllabus
from the class indicating that Huang and Shorter were scheduled
to give their final presentation on December 7.
2. Frandsen’s Testimony on the Murders
There was no direct testimony at Huang’s trial about the
killings of Wertzberger and Ne’Eman. At the evidentiary
hearing, however, the People called Frandsen to testify about the
murders. By the time of the hearing, Frandsen had finished
serving his sentence for second degree murder and involuntary
manslaughter for his involvement in the murders, but the court
granted him immunity under section 1324 to protect him from
potential further prosecution in federal court. Frandsen testified
that he had been diagnosed with post-traumatic stress disorder
and a traumatic brain injury, and was 70 percent disabled as a
result. He had a foggy memory and had difficulty remembering
sequences of events. He did not recall many details of the events
that had happened more than 20 years earlier, and the
prosecutor frequently showed him his testimony in his own trial
in order to refresh his memory.
Frandsen testified that after the others left Huang’s house,
Wertzberger got up to go to the bathroom and said something in
Hebrew to Ne’Eman. Huang followed him down the hallway.
Frandsen heard a noise like a thump from the direction of the
bathroom. Ne’Eman stood up from the couch and looked
agitated. Frandsen and Ne’Eman both yelled out to try to find
out what was going on, and Frandsen took a step toward the
hallway. He heard a noise behind him, looked back, and saw
7
Ne’Eman holding a long silver object over his head. Frandsen
later realized Ne’Eman was holding a bong, but at the time,
Frandsen thought it was a weapon like an axe. Frandsen, who
was trained in martial arts, threw an elbow at Ne’Eman, striking
him in the throat. Ne’Eman coughed and dropped to one knee.
With Ne’Eman incapacitated, Frandsen went back to the
bathroom. At first he could not open the door, but eventually it
opened, and Frandsen found Huang and Wertzberger inside.
Wertzberger was unconscious, and Huang said that Wertzberger
had jumped him. Frandsen went out of the bathroom and saw
Huang hunched over Ne’Eman pressing a plastic bag over his
face.
Huang and Frandsen moved the bodies into the trunk of
Wertzberger’s car. Frandsen drove the car toward Las Vegas,
and Huang followed behind in his car. They pulled off the
freeway along the way, dug a grave, and buried the bodies. Then
they proceeded to Las Vegas, where they left Wertzberger’s car.
During cross-examination, defense counsel asked Frandsen
about statements he made to others shortly after the murders.
Frandsen acknowledged that he told Sean Edmondson, a friend
with whom he had served in the military, that something really
bad had happened, that he found two guys in a hallway, one with
a handgun and one with a knife, and that he reacted as he had
been trained to do. One of the men came at him with a knife.
Frandsen made hand motions indicating that he broke one man’s
neck and turned the other man’s knife against him, killing him.
The next thing he knew, there were two dead bodies.
Frandsen also acknowledged telling another close friend,
Lyndsay Griffin, that he killed someone in self-defense.
Frandsen had spoken and texted with Griffin frequently, but for
8
several days following the murders, he had no contact with her.
When he returned from Las Vegas, he made a strangling gesture
to indicate how he killed a victim.
3. Events After the Murders
Pistone testified that he returned to the house the next
morning with Kharboutli to work on the plumbing. Huang,
Frandsen, and Turner were there, but Wertzberger and Ne’Eman
were not. Kharboutli asked what had happened, and Huang
said, “We let them out last night,” but in the same breath, he said
“but they’re missing in action and [one victim’s] girlfriend[ i]s
looking for him and they found the guy’s cell phone in East L.A.”
On the evening of December 3, Ne’Eman’s credit card was
used in Las Vegas at Best Buy, an Outback steakhouse, and at a
clothing store called Catwalk. A Catwalk employee testified that
she rang up the transaction in question, which included several
pairs of pants and a pair of Demonia brand shoes. The Demonia
shoes were high platform shoes and had stars on them. The store
sold velvety pants of a type later discovered in Frandsen’s
apartment. According to the employee, two men purchased these
items. One was tall and thin with dark hair, the other short and
chubby with curly light brown hair. When the employee asked
the shorter man for identification, he showed her a passport, but
the employee was not sure if the man looked like the picture in
the passport. Four months later, investigators showed the
employee several photos, and she identified Frandsen as the
shorter man who made the purchase. She chose a photo of
Wertzberger as the taller man in the store, and she did not
choose a photo of Huang. An employee at the Best Buy testified
that he asked to see Ne’Eman’s ID as part of the transaction, and
that the photo on Ne’Eman’s passport and international ID card
9
looked like the man making the purchase. He was with two other
men at the time, and he spoke with one of them in a foreign
language that the employee did not recognize. Four months
later, investigators presented the employee with a series of
photographs, and the employee identified Wertzberger’s photo,
noting that he looked familiar. None of the men in the group
appeared to be Asian. An Outback employee told FBI
investigators four months later that he believed the man who
used Ne’Eman’s credit card was a tall, slender European man
who had been accompanied by a woman. The employee testified
that nothing seemed unusual about the transaction, and that he
always asks for a photo ID when a customer pays with a credit
card.
On December 4, 2022, Turner saw Frandsen at his
apartment. He was wearing “velvety white pants.” On Friday,
December 6, Turner saw Huang, who told him he had escorted
Wertzberger and Ne’Eman back to Las Vegas and dropped them
off there. He showed off a pair of shoes with distinctive color
patterns that he said he bought in Las Vegas using Ne’Eman’s
credit card. One of Huang’s UCLA professors testified that
Huang was present at his group presentation on December 7, as
well as at preparatory sessions on December 5 and 6. The
professor did not notice anything unusual about Huang’s
behavior at those sessions.
The Las Vegas police impounded Wertzberger’s car on
December 7, 2002 from a metered street parking space where it
had been located for the previous few days with the keys in the
ignition and valuables including music equipment and a laptop
computer in the backseat.
10
A few weeks later, around New Year’s Eve, Huang asked
Turner to take marijuana plants from his home because he feared
the FBI was going to raid his house. The FBI indeed searched
Huang’s residence on April 8, 2003, when agents recovered a
large amount of marijuana, a rifle, and an improvised explosive
device. In a second search on September 12, 2003, officers
recovered a samurai-type sword, some duct tape and twine, and
over $10,000 in cash.
On the same day as the second search of Huang’s home,
Pistone wore an FBI surveillance wire to a meeting with Huang.
Pistone said the FBI wanted to talk to him and said “I can’t
lie. . . . I mean, what happened to those guys?” Huang
responded, “I don’t know.” Pistone continued, “Me and
[Kharboutli], I mean, we left ’em at your house.” Huang
responded, “Yeah. And I . . . . ” Pistone answered, “So what
happened?” Huang replied, “I don’t know.” Pistone continued to
press Huang, saying he had seen Huang with a shovel, and
Huang kept attempting to shut the conversation down. At one
point, Huang said, “If I was to tell you something now . . . and
you’re telling me you cannot lie . . . put the two things together.”
Pistone responded, “What do you expect me to do?” Huang
replied, “I expect you to just be quiet and not implicate yourself
in anything, period.” Later in the conversation, Pistone
recounted that the morning after leaving the victims with Huang,
he saw Huang at his house. “And it seems to me that you guys
were there all night. . . . So it’s like you either . . . tell me you
had something to do with it, I’m gonna keep my mouth shut,
okay. But if you tell me you had . . . nothing to do with it, then I
gotta say the fuckin’ truth.” Huang responded, “Can I just say
keep your mouth shut? Can I just tell you keep your mouth
11
shut?” Eventually, Huang began to suspect that Pistone was an
informant and suggested they go back to his house so Pistone
could “jump in the Jacuzzi, so I know there’s no wires on . . . you.”
On September 14, 2003, officers arrested Frandsen and
found two pairs of pants from Catwalk, including a pair of cream-
colored velvet pants that fit the description of those Turner saw
Frandsen wearing a day or two after the victims disappeared.
Based on information Frandsen gave them, the FBI searched a
campground about 37 miles north of Barstow, where they found
Wertzberger’s and Ne’Eman’s bodies in a shallow grave. The
cartilage in Ne’Eman’s Adam’s Apple had been fractured, as had
his cervical vertebrae, suggesting he had died from blunt force
injuries to his neck. Wertzberger’s body was too decomposed to
allow for a determination of cause of death.
DISCUSSION
A. Background on Resentencing under Section 1172.6
In 2018, the Legislature amended the Penal Code on the
principle that “[a] person’s culpability for murder must be
premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1(g); Sen. Bill No. 1437 (2017-2018
Reg. Sess.).) Under the law as amended, a defendant may not be
convicted of murder solely for participating in a crime during
which a cohort killed someone. (People v. Curiel (2023) 15
Cal.5th 433, 449.) To convict a defendant of felony murder under
the new law, the prosecution must prove that the defendant
either was the actual killer (§ 189, subd. (e)(1)); acted with the
intent to kill in aiding, abetting, commanding, encouraging, or
soliciting the actual killer (id., subd. (e)(2)); or “was a major
participant in the underlying felony and acted with reckless
indifference to human life” (id., subd. (e)(3)).
12
As part of these reforms, the Legislature enacted section
1172.6,2 which allows defendants serving sentences for murder
who could not be convicted under the new version of the law to
petition for resentencing. If a defendant makes a prima facie
case for relief (see id., subd. (c)), the court must hold an
evidentiary hearing at which the People bear the burden “to
prove, beyond a reasonable doubt, that the petitioner is guilty of
murder or attempted murder under California law as amended
by” Senate Bill No. 1437 (§ 1172.6, subd. (d)(3)). “[A] section
[1172.6] hearing is not a criminal trial” (People v. Garrison (2021)
73 Cal.App.5th 735, 746), and in particular, some evidentiary
rules are relaxed. “The admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing
or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.”
(§ 1172.6, subd. (d)(3).)
“On appeal from the denial of a section 1172.6 petition after
an evidentiary hearing, we review the superior court’s factual
findings for substantial evidence and the court’s application of
the law to those facts de novo. (People v. Wilson (2023) 90
Cal.App.5th 903, 916 . . . .) In conducting our review, we consider
the whole record in the light most favorable to the superior
court’s findings (People v. Rivera (2019) 7 Cal.5th 306, 323 . . .),
and we presume ‘ “ ‘every fact in support of the judgment the
trier of fact could have reasonably deduced from the evidence.’ ” ’
(Id. at p. 331.) We ask ‘whether substantial evidence, defined as
reasonable and credible evidence of solid value, has been
2 The statute was originally codified at section 1170.95.
13
disclosed, permitting the trier of fact to find guilt beyond a
reasonable doubt.’ (People v. Vargas (2020) 9 Cal.5th 793,
820 . . . .) And based on this whole record review, we ‘ “determine
whether any rational trier of fact could have found the essential
elements of the crime . . . beyond a reasonable doubt.” ’ (People v.
Montanez (2023) 91 Cal.App.5th 245, 270 . . . .)” (People v. Hill
(2024) 100 Cal.App.5th 1055, 1066.)
B. Substantial Evidence Supported the Superior
Court’s Finding that Huang Remains Guilty of
Murder
The superior court found Huang remained guilty of felony
murder because he actually killed Wertzberger and Ne’Eman,
and even if not, he acted with intent to kill in aiding and abetting
Frandsen, or at minimum was a major participant in kidnapping
the victims and acted with reckless indifference to human life.
Huang argues that no substantial evidence supported these
findings.
Huang acknowledges that substantial evidence is a low
standard, and that “unless the testimony is physically impossible
or inherently improbable, testimony of a single witness is
sufficient to support a conviction.” (People v. Young (2005) 34
Cal.4th 1149, 1181.) In this case, the court found Frandsen
“credible” in his testimony that Huang “killed Wertzberger in the
bathroom of the residence. [Huang] then placed a plastic bag
over [Ne’Eman]’s head and suffocated [Ne’Eman] after Frandsen
hit [Ne’Eman] in the neck. [Ne’Eman] took his last breath as
[Huang] suffocated him.” This finding alone is sufficient to
justify the denial of the petition.
Huang contends this is not the case because “Frandsen’s
testimony at the evidentiary hearing was inherently improbable
14
and did not meet the level required of evidence that is ‘solid,
substantial, and reasonably inspire[d] confidence in defendant’s
guilt’ to support a finding beyond a reasonable doubt that Huang
is guilty of murder under current law. (People v. Ramirez (2021)
71 Cal.App.5th 970, 985 . . . .)” We disagree. We see nothing
inherently implausible or impossible about Frandsen’s claim
that, after he and Huang were left alone with the victims, Huang
killed Wertzberger in the bathroom and then finished off
Ne’Eman by placing a plastic bag over his mouth. Huang claims
the testimony of a medical expert that Ne’Eman died from
“[b]lunt force neck injuries” shows Frandsen was Ne’Eman’s
actual killer, but this is not so. The expert testified that
Ne’Eman’s injury might not have killed him immediately, and
that he might have survived if given immediate medical
attention. Thus, the expert testimony is consistent with a finding
that Huang actually killed Ne’Eman by asphyxiating him with a
plastic bag after Frandsen crushed his windpipe.3
Huang’s remaining arguments attempt to relitigate his
claim at the evidentiary hearing that the victims left his home
unharmed and were killed at some later point. Huang notes that
employees at Catwalk and Best Buy identified Wertzberger as
one of the men in the party that used Ne’Eman’s credit card in
Las Vegas on December 3, 2002, and that an Outback employee
testified that the man who paid using Ne’Eman’s credit card that
night looked like Ne’Eman’s photo on his ID. He also notes that
his business school professor did not notice anything out of the
3 There was no testimony at Huang’s trial that Huang
placed a plastic bag over Ne’Eman’s mouth, and thus the expert
did not address this possibility.
15
ordinary in Huang’s performance leading up to his group
presentation five days after the murders.
In making these arguments, Huang ignores the evidence
against his position. Pistone testified that as they were
deliberating what to do with Wertzberger and Ne’Eman, Huang
suggested killing them and leaving their bodies in another state.
Both Pistone and Turner testified that they left Huang and
Frandsen alone with the victims on the evening of December 2,
and Pistone testified that Huang and Frandsen were still there
when he returned the following morning, but the victims were
not.
Of course, Pistone and Turner had an incentive to blame
Huang for the murders in order to exculpate themselves, but
additional evidence corroborated their accounts. During their
recorded conversation, Pistone told Huang basically the same
story he later gave in court. When he said that he and
Kharboutli had “left [the victims] at your house,” Huang did not
deny the claim, but responded, “Yeah.” Although Huang did not
confess to the murders, his insistence that Pistone “keep [his]
fuckin’ mouth shut” evinced a consciousness of guilt. In addition,
Huang’s classmate Shorter, who had no reason to lie to
incriminate Huang, testified that Huang called him shortly
before he was scheduled to take part in a very important school
presentation, that Huang “seemed stressed,” and that he told him
without explanation that he needed to get out of town. Phone
records suggested this conversation took place just before
11:00 p.m. on December 2, 2002, near the time when the murders
might have occurred.
A factfinder could reasonably infer that the employees who
identified Wertzberger and Ne’Eman as shopping in their stores
16
on December 3, 2002 were mistaken about people whom they had
met only once in an unremarkable encounter months earlier. The
testimony of Huang’s professor only confirms what other evidence
shows—that Huang successfully led a double life as a part time
criminal without compromising his progress toward his MBA.
Nothing in Frandsen’s testimony is so implausible or impossible
as to overcome our deference to the superior court’s finding that
Huang actually killed both Wertzberger and Ne’Eman.
Substantial evidence also supports the superior court’s
finding that Huang remains guilty of murder because he was a
major participant who acted with reckless indifference to human
life in kidnapping Wertzberger and Ne’Eman. The court
analyzed major participation and reckless indifference according
to the standards our Supreme Court established in People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522. It found Huang was a major participant because he
“initially kidnapped the victims for his own motives and was thus
directly responsible for setting the events in motion that led to
the victims’ deaths. [Huang] certainly did not call for help after
force was used by Frandsen against [Ne’Eman], but rather acted
to ensure that the victim was dead. (Banks, supra, . . . at p. 803
. . . .)” The court found Huang acted with reckless indifference to
human life under the standard enunciated in Clark because he
“was present at the scene of the kidnappings, was armed, and
used a weapon to intimidate and threaten the victims. [Huang]
brought Frandsen into the scheme as ‘muscle.’ [Huang] was
present throughout most of the over 11-hour restraint of the
victims, was the main instigator and made no effort to minimize
the risk of violence during the kidnapping. To the contrary, he
escalated the risk of violence by his actions.” Huang’s argument
17
against the court’s finding relies on his claim that Wertzberger
and Ne’Eman did not die at Huang’s home. As we have already
discussed, the superior court reasonably found otherwise, and it
is not our function to reweigh the evidence. We agree with the
court that Huang’s actions during the 11-hour kidnapping, and
his presence at the scene of the killings, makes him a major
participant who acted with reckless indifference to human life
even if he did not personally kill either Wertzberger or Ne’Eman.
C. Any Error in the Refusal to Admit Transcripts from
Frandsen’s Trial Was Harmless
Huang argues the superior court erred by refusing to admit
transcripts of testimony from Frandsen’s 2016 trial at the
evidentiary hearing. The testimony at issue came from
Frandsen’s friends Griffin and Edmondson, who claimed that
shortly after the murders, Frandsen made statements suggesting
he killed one or both victims.
Huang contends these statements were admissible under
two separate hearsay exceptions: one for prior inconsistent
statements (Evid. Code, § 1235), and a second one specific to
section 1172.6 evidentiary hearings. Section 1172.6, subdivision
(d)(3) provides that the parties may introduce any evidence
ordinarily admissible under the Evidence Code, as well as
“evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed.” (§ 1172.6,
subd. (d)(3).) One court has interpreted this language as
“creat[ing] a new hearsay exception applicable specifically to
merits hearings in section 1172.6 resentencing proceedings.”
(People v. Davenport (2023) 95 Cal.App.5th 1150, 1158.) In
People v. Ramos (2025) 112 Cal.App.5th 174, the court
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interpreted this language broadly, reasoning that the
Legislature, by allowing without qualification the introduction of
evidence from “ ‘any prior hearing or trial,’ ” did not intend to
limit the provision to prior proceedings where the petitioner was
a party. (Id. at p. 408.) Huang argues that under this
interpretation, the transcripts of Griffin’s and Edmondson’s
testimony were admissible.
The People contend Huang forfeited this issue by failing to
refer specifically to either Evidence Code section 1235 or to the
relevant language in section 1172.6, subdivision (d)(3) in urging
the admission of the transcripts. The People also argue Ramos
was wrongly decided. They note that the original version of
section 1172.6, then-codified at former section 1170.95, allowed
“[t]he prosecutor and the petitioner [to] rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens” at the evidentiary hearing (former § 1170.95,
subd. (d)(3)), and that the Legislature’s subsequent amendments
to the statute were intended to restrict the scope of admissible
evidence, not to expand it. (See People v. Davenport, supra, 95
Cal.App.5th at pp. 1159-1160.) Because the transcripts of
Frandsen’s trial are not part of the record of Huang’s conviction,
the People contend those transcripts were not admissible.
Finally, the People argue the transcripts were not admissible as
prior inconsistent statements because Frandsen did not deny that
he had made the statements at issue to Griffin and Edmondson,
but claimed only that he could not remember details of the
conversations.
We need not decide these issues because any error in the
refusal to admit the testimony from Frandsen’s trial was
harmless under any standard of review for two reasons. First,
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Huang’s attorney impeached Frandsen extensively with Griffin’s
and Edmondson’s testimony, asking him if he really said what
those witnesses claimed. Frandsen acknowledged that the core of
Griffin’s and Edmondson’s testimony was true. He admitted he
made a gesture to Griffin that Griffin interpreted as meaning
Frandsen choked or strangled someone to death. He also
admitted he spoke with Edmondson about the murders and made
gestures suggesting he turned one person’s knife against him and
broke the neck of a second victim. We do not see how the
introduction of the transcripts themselves would have changed
the superior court’s view of who killed the victims.
Second, the testimony at issue does not exonerate Huang.
Griffin did not claim that Frandsen told her he acted alone, or
that Huang was not present. In addition, her claim that
Frandsen made a strangling or choking gesture is generally
consistent with Frandsen’s testimony at the evidentiary hearing
that he struck Ne’Eman’s throat. Edmondson’s testimony
supported an inference that Frandsen actually killed
Wertzberger and Ne’Eman, but it also implicated Huang.
According to Edmondson, Frandsen said the killings took place at
Huang’s house in Huang’s presence, that it was Huang’s idea to
bury the bodies in the desert, and that Frandsen was afraid of
Huang and believed he might kill Frandsen’s family.
Thus, even if the superior court had admitted Edmondson’s
testimony and found it wholly credible, it would have had no
effect on the superior court’s conclusion that Huang remained
guilty of murder because he was a major participant who acted
with reckless indifference to human life in kidnapping the
victims.
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DISPOSITION
The superior court’s order is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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