People v. Frazier CA2/3 ( 2020 )

Filed 11/2/20 P. v. Frazier CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B300037
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA128849
v.
JAHMAL LYDEL FRAZIER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
BACKGROUND
In 2013 the People filed an information charging defendant
and appellant Jahmal Lydel Frazier with the murder of
Roshan Bhandari on April 5, 2011. The People alleged special
circumstances of (1) lying in wait (Pen. Code, § 190.2, subd.
(a)(15))1 and (2) that Bhandari was a witness to a crime and
“was intentionally killed because of that fact.” (§ 190.2, subd.
(a)(10).) The People alleged Frazier personally and intentionally
discharged a firearm causing Bhandari’s death (§ 12022.53,
subd. (d)), as well as other firearm enhancements. In August
2014, the prosecution announced it was seeking the death
penalty in the case.
After years of pretrial proceedings, the case went to trial
in February 2019. On April 16, 2019, the jury returned a verdict
finding Frazier guilty of first degree murder. The jury also found
the special circumstances and section 12022.53, subdivision (d)
allegations true.
A day later—before the penalty phase began—counsel told
the court that Frazier, through counsel, had “made an offer to
settle this case regarding a waiver of all appellate issues in
exchange for [the prosecution] taking death off the table.” The
prosecutor said the District Attorney herself had approved the
disposition and the People were “going to accept that offer.”
That afternoon, after some further discussion, the
prosecutor explained to Frazier the terms of the plea agreement
the parties had reached. At the outset, the prosecutor told
Frazier, “If you have any questions and you need to talk to your
counsel, please let me know. . . . If you have any questions of . . .
your counsel and the court, please feel free to ask; okay?” Frazier
responded, “Okay.”
1 References to statutes are to the Penal Code.
2
The prosecutor asked, “Do you waive all legal, factual and
procedural issues on appeal and habeas corpus petitions that
would include appeals to the California appellate court, writ
proceedings to any California appellate court, or any writ and
appeals in the federal court system?” Frazier answered, “Yes.”
Frazier confirmed he had discussed the waivers of his rights
with his counsel and any questions he had had been answered.
The prosecutor asked Frazier, “Do you understand that you are
receiving a substantial bargain from this agreement, meaning,
we are taking death off the table and the court will sentence you
to life without the possibility of parole?” Frazier answered, “Yes.”
The prosecutor continued to advise Frazier of the waivers at
considerable length.
Frazier’s counsel confirmed he had explained to Frazier
“all of his statutory and constitutional rights” as well as his
“appellate and habeas corpus rights,” and he had answered all
of Frazier’s questions. The court found Frazier had waived
his rights freely and voluntarily, with an understanding of the
nature and consequences of the waivers. The court then accepted
the parties’ agreed-upon disposition and stated, “Very well, the
death penalty is off the table and he will be sentenced to LWOP.”
The parties returned to court on June 7, 2019 for
sentencing. The court sentenced Frazier to life in prison without
the possibility of parole. After discussing Frazier’s presentence
custody credits, the court ordered Frazier to pay a $300
mandatory minimum restitution fine and $70 in court
assessments. The prosecutor told the court the People were
requesting “$5,000 plus interest to the victim compensation
board.” Frazier’s counsel objected, stating, “Obviously, Mr.
Frazier is going to be spending the remainder of his life
in custody, will have no access to income. Any efforts to obtain
the limited monies he earns there will deter his participation
3
in normal prison activities. We believe restitution at this time
in these circumstances is inappropriate and we’d request that
the court deny the People’s motion.”
The prosecutor responded, “It’s the People’s position that
he could earn money in prison and also he may inherit money.
We don’t know what will happen in the future, but the restitution
order is something that he caused and he should be responsible
for paying that.”
The court stated it believed there was recent authority on
a “defense . . . assert[ion] that he has no present ability to pay,
that he is indigent.” The court presumably was referring to the
January 2019 court of appeal decision in People v. Dueñas (2019)
30 Cal.App.5th 1157. The court asked counsel if either had “any
authority on that.” The prosecutor said, “I thought that went to
the restitution fine, not the restitution.” The court said, “I think
you’re right. . . . I think that’s correct.” The court then ordered
Frazier to pay restitution “in the amount of $5,000 plus ten
percent interest from today.”2
Frazier’s counsel filed a notice of appeal. Counsel checked
box 2.a.(1) on the Judicial Council form: “This appeal is based
on the sentence or other matters occurring after the plea that
do not affect the validity of the plea. (Cal. Rules of Court,
rule 8.304(b).)” On September 6, 2019, our Administrative
2 At the June 7 hearing, the prosecutor apparently gave
something in writing regarding restitution to the clerk, who told
the judge, “I left a restitution request on the bench.” The record
on appeal does not include a copy of that submission, or of any
proposed or signed order for victim restitution. The Abstract of
Judgment under “[o]ther orders” states, “Restitution payable to
California Victim Compensation Board ($5,000) + 10% interest
from the sentencing date. See attached page.” The attached
page, however, seems to concern the firearm relinquishment.
4
Presiding Justice issued an order that this appeal is limited
to issues that do not require a certificate of probable cause.
We appointed counsel to represent Frazier on appeal.
Counsel filed an opening brief under People v. Wende (1979) 25
Cal.3d 436. Counsel stated Frazier “is appealing the sentencing
after waiving all of his post-conviction rights in return for the
prosecution agreeing not to seek the death penalty.” In an
accompanying declaration, counsel stated, “I have reviewed the
entire record on appeal.” Counsel declared he had written to
Frazier, sent him a copy of the Wende brief, and “explained [his]
evaluation of the record on appeal and [his] intention to file this
pleading.” Counsel informed Frazier he could file a supplemental
brief. Counsel declared he had “previously sent [Frazier] the
transcripts of the record on appeal.”
On July 1, 2020, we also sent a notice to Frazier that his
counsel had been unable to find any arguable issues and had
filed a Wende brief. Our notice advised Frazier that he could
file a supplemental brief or letter within 30 days, raising any
contentions or argument he wished this court to consider. We
have received no supplemental brief or letter from Frazier.
DISCUSSION
The trial court sentenced Frazier to life without the
possibility of parole in accordance with the parties’ plea
agreement. The only item to which Frazier, through counsel,
objected, was the $5,000 in victim restitution to the California
Victim Compensation Board. This restitution order appears to be
the only item “occurring after the plea” to which the parties did
not expressly agree.
Section 1202.4, subdivision (f) (1202.4(f)) provides “the
court shall require” a defendant to make restitution to the victim
“in every case in which a victim has suffered economic loss as
a result of the defendant’s conduct.” (§ 1202.4, subd. (f).) In
5
enacting section 1202.4(f), our Legislature “implement[ed] the
state constitutional mandate that ‘all persons who suffer losses
as a result of criminal activity shall have the right to seek and
secure restitution from the persons convicted of the crimes
causing the losses they suffer.’ ” (People v. Evans (2019) 39
Cal.App.5th 771, 777 (Evans), quoting Cal. Const., art. I, § 28,
subd. (b)(13)(A).) As the Evans court noted, a restitution
payment like this one—to the victims to make them “reasonably
whole” economically—is “fundamentally different from the
[restitution] fine and assessments in [People v.] Dueñas
[(2019) 30 Cal.App.5th 1157].” (Evans, at pp. 776-777.)
“As Dueñas explains, the court facilities and court
operations assessments are intended to maintain funding for
California courts. [Citations.] A restitution fine is intended
to be additional punishment for a crime.” (Evans, supra,
39 Cal.App.5th at p. 777.) By contrast, “victim restitution is
intended ‘as a civil remedy rather than a criminal punishment.’ ”
(Id. at p. 776.) Section 1202.4, subdivision (g) expressly states,
“A defendant’s inability to pay shall not be a consideration
in determining the amount of a restitution order.” (§ 1202.4,
subd. (g); Evans, at p. 777 [“a defendant’s ability to pay victim
restitution is not a proper factor to consider in setting a
restitution award under section 1202.4, subdivision (f)”].)
Nor does it matter that in this case, the victims have
already received compensation through the California Victim
Compensation Board. “As explained in [People v.] Holman
[(2013) 214 Cal.App.4th 1438], ‘[t]he Restitution Fund is in the
State Treasury Department, and is used to compensate victims
for certain kinds of “pecuniary losses they suffer as a direct result
of criminal acts.” (Gov. Code, § 13950, subd. (a).) Crime victims
may apply to the Restitution Fund as one avenue to recover
monetary losses caused by criminal conduct.’ (Holman, at
6
p. 1452, citing § 1202.4, subd. (f)(2).) Then, ‘when direct victim
restitution has been satisfied by the victim’s application to
the victim compensation program, the amounts a defendant is
ordered to pay as direct victim restitution are instead paid to
the Restitution Fund.’ (Holman, at p. 1452.)” (Evans, supra,
39 Cal.App.5th at p. 778.)
In short, the trial court did not err by ordering Frazier to
reimburse the fund for the amount it had provided to the victims,
presumably Bhandari’s family.
We are satisfied that Frazier’s counsel has fully complied
with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 109-110; Wende, supra,
25 Cal.3d at pp. 441-442.)
DISPOSITION
We affirm Jahmal Lydel Frazier’s judgment of conviction,
his sentence, and the trial court’s restitution order.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
7