People v. Fredenburg CA2/6 ( 2024 )

Filed 10/16/24 P. v. Fredenburg CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B327710
(Super. Ct. No. VA149931)
Plaintiff and Appellant, (Los Angeles County)
v.
BRETT ROGERS FREDENBURG,
Defendant and Respondent.
Brett Rogers Fredenburg appeals a judgment following
conviction of second degree murder with findings of personal
deadly and dangerous weapon use, and a prior strike conviction.
(Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1), 667, subds.
(b)-(i), 1170.12, subds. (a)-(d).)1
In February 2019, Fredenburg beat and stabbed to death a
homeless man who cheated him in a heroin transaction. On
appeal, Fredenburg raises claims concerning jury instructions not
given, the effectiveness of counsel, and admission of his recorded
1 All statutory references are to the Penal Code unless
stated otherwise.
jail conversations into evidence. We reject his contentions and
affirm.
FACTUAL AND PROCEDURAL HISTORY
Robert Gonzalez and his wife Michelle Gomez lived in a
tent near Shoemaker Avenue in Cerritos. Gonzalez and Gomez
were heroin addicts who bought drugs from Fredenburg and his
father, Jimmy Fredenburg.2
Casey Kehoe and his girlfriend lived in a tent near
Gonzalez. They were also heroin addicts who knew Fredenburg.
Kehoe later informed police officers that Gonzalez did not pay
Fredenburg the full price for heroin by using sleight of hand
when transferring cash.
In February 2019, Reyna Munoz and her boyfriend lived in
a nearby homeless encampment. Munoz later told police officers
that Fredenburg claimed Gonzalez had cheated him in a drug
transaction and that he intended to obtain the money owed him.
On February 6, 2019, Gomez asked Kehoe to buy drugs for
her and Gonzalez. Kehoe used Gomez’s cell phone to call
Fredenburg. That afternoon, two men wearing hoodies and
bandanas walked into the encampment. Gomez recognized
Fredenburg (whom she had seen and spoken with “a number of
times before”) but not the second man. Fredenburg pointed a gun
at Gonzalez, but Gomez could not tell if it was a real gun.
Fredenburg began yelling at Gonzalez, who responded that
he had the money and would pay. Fredenburg appeared
disinterested. He and the other man then attacked Gonzalez,
punching him and throwing him to the ground. Fredenburg and
the other man also struck Gonzalez with sticks. Gonzalez
2 At times we refer to the parties by their first names not
from disrespect, but to ease the reader’s task.
2
attempted to defend himself by blocking the men’s blows. He was
smaller than Fredenburg, however, and the two assailants used
the force of their combined weight against him.
Fredenburg then stabbed Gonzalez with a sharp object,
possibly a screwdriver found lying on the ground. Gomez
screamed for help and saw Kehoe and his girlfriend, but they did
not offer to help. Gomez blamed Kehoe for summoning
Fredenburg. Kehoe responded, “So what. That’s what [Gonzalez]
deserves.” Gomez ran to a nearby warehouse and requested
assistance; a warehouse employee called 911.
The attack and stabbing lasted a few minutes. Fredenburg
and the second man then fled. Police officers later found a
broken black BB gun by Gonzalez’s tent.
Gonzalez suffered a fatal stab wound to his back that
punctured his lung. He also suffered wounds to his upper and
lower extremities that could have been caused by receiving a
punch or throwing a punch. The stab wound was caused by a
sharp object but police officers did not recover the weapon.
Kehoe and his girlfriend testified at trial that they did not
see the attack on Gonzalez. Kehoe saw two men wearing
bandanas walk by his tent but did not recognize them. When
interviewed by police officers earlier, however, Kehoe stated that
Fredenburg was one of the two men (“[I]t looked like
[Fredenburg]. . . . It looked like his body shape”). He recognized
Fredenburg as the assailants fled the crime scene.
Munoz informed police officers that Kehoe and his
girlfriend watched the attack on Gonzalez. Munoz also stated
that she recently lent Fredenburg a black BB gun.
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Surveillance Cameras, DNA, and Cell Phone Evidence
Video surveillance cameras at the nearby warehouse
captured a dark-colored vehicle with a cord across the trunk
arrive near the homeless encampment at approximately 1:20 p.m.
on February 6, 2019. Two men left the vehicle, walked toward
the encampment, and then returned to the vehicle. When
arrested on February 7, 2019, Fredenburg drove a dark-colored
vehicle with a cord securing the trunk. Fredenburg had bruises,
cuts, and sores on his hands when arrested and explained to
police officers that he was a drug user.
Police officers discovered cigarette remains in the area
where the dark-colored vehicle had parked. Fredenburg was a
contributor to the DNA found on the cigarettes.
DNA testing of the broken BB gun found at the crime scene
excluded Fredenburg as a contributor to DNA found on the gun
trigger.
Near the time of Gonzalez’s murder, a cell phone used by
Fredenburg pinged from a cell phone tower near the crime scene.
Jimmy was the cell phone’s subscriber.
Recorded Jailhouse Conversations
In recorded telephone conversations with his wife Jamie,
Fredenburg admitted that he “fucked up,” but stated that he
believed the police had “no evidence” against him. Fredenburg
also asked concerning the whereabouts of his cell phone and
Jamie responded that the police had it.
In a three-way telephone conversation with Jamie and
Jimmy, Fredenburg reiterated that he believed the police lacked
evidence of his involvement in Gonzalez’s murder. Fredenburg
asked Jamie to find “the Buck” in his backpack and “get rid of
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[it].” In a later conversation, Jamie confirmed that she
understood and had complied.
On February 12, 2019, Fredenburg spoke with Jimmy who
offered to “take care of [Gonzalez’s wife].” Fredenburg responded
“Yeah.” On February 25, 2019, Fredenburg telephoned Jamie.
She informed him that police officers had threatened her based
upon the jail conversations. They also had arrested Jimmy.3
Jamie’s Testimony
Jamie testified at trial that they owned a dark-colored
sedan that others, including Jimmy, would use. She explained
that the telephone call references to “Buck” referred to a sunglass
case bearing antlers decoration that contained illegal drugs.
Police officers arrested Jamie shortly after arresting Jimmy. She
later pleaded nolo contendere to accessory after the fact.
Conviction and Sentencing
The jury convicted Fredenburg of second degree murder
and found the personal deadly and dangerous weapon use
allegation true. In a separate proceeding, Fredenburg admitted
suffering a prior serious felony and strike conviction. (§§ 667,
subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The trial court sentenced Fredenburg to 31 years to life,
consisting of a doubled 15-year term for second degree murder
and a one-year term for the great bodily injury finding. The court
struck the section 667, subdivision (a) serious felony conviction
finding. The court also imposed various fines and fees, ordered
victim restitution, and awarded Fredenburg 1,106 days of
presentence custody credit.
Fredenburg appeals and contends that the trial court or
defense counsel erred by: 1) not instructing regarding heat of
3 Jimmy died in custody in 2021.
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passion manslaughter; 2) not requesting a limiting instruction
regarding a witness’s criminal conviction and the witness’s
credibility; 3) not instructing regarding a witness’s out-of-court
statements; and 4) admitting evidence of his recorded jail
conversations.
DISCUSSION
I.
Fredenburg argues that the trial court erred by not
instructing regarding the lesser included offense of voluntary
manslaughter based upon a heat of passion theory. He relies
upon the evidence that Gonzalez had cheated him (as well as
Jimmy on an earlier occasion), that Gomez testified that she
heard yelling, and that Gonzalez’s defensive wounds could have
resulted from him fighting with the two men.
In criminal cases, the trial court must instruct on general
principles of law relevant to the issues raised by the evidence and
necessary to the jury’s understanding. (People v. Nelson (2016) 1
Cal.5th 513, 538; People v. Enraca (2012) 53 Cal.4th 735, 758-
759.) The evidence necessary to support a lesser included offense
instruction must be substantial from which reasonable jurors
could conclude that the facts underlying the instruction exist.
(Ibid.) The substantial evidence requirement is not satisfied by
any evidence, no matter how weak, but evidence from which a
jury could conclude that the lesser offense, but not the greater,
was committed. (Nelson, at p. 538.) We independently review
whether the trial court should have instructed concerning a
lesser included offense. (People v. Dominguez (2021) 66
Cal.App.5th 163, 175.) Doubts regarding the sufficiency of
evidence to warrant a lesser included offense instruction,
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however, must be resolved in favor of the defendant. (People v.
Tufunga (1999) 21 Cal.4th 935, 944.)
The crime of murder may be reduced to voluntary
manslaughter if the victim engaged in provocative conduct
sufficient to cause an ordinary person of average disposition to
act in the heat of passion, i.e., rashly or without due deliberation
and reflection. (People v. Schuller (2023) 15 Cal.5th 237, 252;
People v. Enraca, supra, 53 Cal.4th 735, 758-759; People v.
Gutierrez (2009) 45 Cal.4th 789, 826 [“ ‘The provocation must be
such that an average, sober person would be so inflamed that he
or she would lose reason and judgment’ ”].) “Heat of passion” is a
state of mind created by legally sufficient provocation causing a
person to act not from rational thought, but from an
unconsidered reaction to the provocation. (People v. Nelson,
supra, 1 Cal.5th 513, 539 [legally sufficient provocation eclipses
reflection and causes a person to act without deliberation or
judgment]; People v. Beltran (2013) 56 Cal.4th 935, 942 [a person
who acts without reflection in response to adequate provocation
does not act with the mental state required for murder].)
“ ‘Adequate provocation and heat of passion must be affirmatively
demonstrated.’ ” (Gutierrez, at p. 826.)
The heat of passion element of voluntary manslaughter has
an objective and a subjective component. (People v. Enraca,
supra, 53 Cal.4th 735, 759.) “Objectively, the victim’s conduct
must have been sufficiently provocative to cause an ordinary
person of average disposition to act rashly or without due
deliberation and reflection.” (Ibid.) Subjectively, the accused
must be shown to have killed while under the actual influence of
a strong passion induced by such provocation. (Ibid.) The
passion aroused need not be anger or rage, but can be any intense
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emotion other than revenge. (People v. Dominguez, supra, 66
Cal.App.5th 163, 175.)
The trial court did not err by refusing the instruction
because substantial evidence and reasonable inferences
therefrom do not support it. (People v. Thomas (2012) 53 Cal.4th
771, 813 [lesser included offense instruction not required where
there is no evidence that offense is less than that charged]; People
v. Dominguez, supra, 66 Cal.App.5th 163, 175 [“A trial court must
instruct on lesser included offenses when there is substantial
evidence that the defendant committed the lesser offense instead
of the greater”].)
Fredenburg offers only speculation as to provocation or a
killing executed in rage. (People v. Sakarias (2000) 22 Cal.4th
596, 620 [speculation insufficient to warrant lesser included
offense instruction].) There is no evidence or reasonable
inferences therefrom that Gonzalez was the initial aggressor,
that he argued with Fredenburg, or that he provoked Fredenburg
immediately prior to the killing. Fredenburg borrowed a BB gun
from Munoz and, accompanied by another man, approached
Gonzalez. Gomez testified that Fredenburg began yelling at
Gonzalez and was not interested in his offer to pay the debt.
Fredenburg and his crime partner then attacked Gonzalez,
punching him and beating him with sticks. Gonzalez attempted
to defend himself but was physically smaller than Fredenburg.
There is no substantial evidence that Fredenburg committed
voluntary manslaughter rather than the greater offense of
murder.
Failure to instruct on a lesser included offense that is not
supported by sufficient evidence does not constitute fundamental
unfairness or loss of verdict reliability resulting in federal
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constitutional error. (People v. Schuller, supra, 15 Cal.5th 237,
243, 260, fn. 7; People v. Holloway (2004) 33 Cal.4th 96, 141.)
II.
Fredenburg argues that the jury should have received a
limiting instruction that it was not to consider Jamie’s nolo
contendere plea to accessory after the fact as evidence of his guilt.
He asserts that he did not receive the effective assistance of
counsel due to counsel’s failure to request such a limiting
instruction. Relying on federal cases, Fredenburg claims that he
was denied a fair trial for this reason.
Jamie testified at trial in her husband’s defense. Defense
counsel questioned her regarding her arrest, confinement
pending trial, and eventual plea. The trial court sustained the
prosecutor’s objection to counsel’s question regarding why she
pleaded nolo contendere.
The jury was correctly instructed regarding the effect of a
felony conviction and a witness’s testimony. The court instructed
with CALCRIM No. 316 that a witness’s felony conviction or
commission of a crime may be considered “only in evaluating the
credibility of the witness’s testimony.” Further, the jury must
decide the weight of the felony conviction or crime commission
and whether that fact makes the witness less believable.
Our Supreme Court has rejected the argument that the
trial court has a sua sponte duty to include specific instructions
as to the effect of a co-participant’s conviction. (People v.
Williams (2013) 56 Cal.4th 630, 668 [“Because defendant cites no
authority that the trial court had a duty to give a limiting
instruction on its own motion, and because trial counsel failed to
object to the admission of the pleas and failed to request a
limiting instruction, we find no merit in this claim”].) The court
9
has affirmed this holding in People v. Dalton (2019) 7 Cal.5th
166, 254.
Moreover, Fredenburg has not established prejudice from
the lack of a limiting instruction. (Strickland v. Washington
(1984) 466 U.S. 668, 687, 691-692 [80 L.Ed.2d 674]; People v.
Mackey (2015) 233 Cal.App.4th 32, 119.) The prosecution
introduced evidence of Fredenburg’s telephone conversations
from jail and Jamie’s involvement in concealing evidence. The
conversations were incriminating as to both Fredenburg and
Jamie. Eyewitness Gomez knew Fredenburg and identified him
as the assailant who killed Gonzalez. It is not reasonably
probable that Fredenburg would have obtained a more favorable
result had the limiting instruction been given. (Mackey, at
p. 119.)
III.
Fredenburg argues that the trial court did not completely
instruct regarding evaluation of out-of-court inconsistent
statements uttered by witnesses Gomez and Kehoe. He also
asserts his counsel was ineffective for failing to propose
modifying or clarifying instructions.
The trial court properly instructed with CALCRIM Nos.
226 [“Witnesses”], 315 [Eyewitness Identification”] and 318 [Prior
Statements as Evidence”]. As Fredenburg acknowledges, our
Supreme Court has rejected the argument that a jury would
believe that the standard instruction on evaluating witnesses
does not apply to statements made out of court. (People v.
Livingston (2012) 53 Cal.4th 1145, 1167-1168 [defendant who
believes clarifying instructions are necessary to inform jury how
to evaluate out-of-court statements should request them].) “No
reasonable jury would interpret [the instructions regarding
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witnesses] in such a way as to preclude their applying [them] to
their evaluation of all the evidence including the out-of-court
statements.” (Id. at p. 1168.) The court affirmed this holding in
People v. Lucas (2014) 60 Cal.4th 163, 293, overruled on other
grounds by People v. Romero and Self (2015) 62 Cal.4th 1, 53-54,
footnote 19.
No reasonable jury would interpret the instructions as a
whole to preclude the credibility evaluations of the witnesses’
out-of-court inconsistent statements. Moreover, Gomez and
Kehoe were witnesses at trial and we presume the jury applied
the witness credibility instructions to all of their statements. The
jury specifically received instruction from CALCRIM No. 318:
“You have heard evidence of a statement that a witness made
before the trial. If you decide that the witness made those
statements, you may use those statements in two ways: [¶] 1. To
evaluate whether the witness’s testimony in court is believable;
[¶] AND [¶] 2. As evidence that the information in those earlier
statements is true.” Fredenburg has not established prejudice
from counsel’s failure to propose modifying instructions.
IV.
Fredenburg contends that the trial court abused its
discretion by admitting evidence of portions of his recorded jail
telephone conversations with Jamie. He asserts that the
conversations are irrelevant and unduly prejudicial pursuant to
Evidence Code section 352. Specifically, Fredenburg points to
conversations regarding his efforts to obtain private counsel and
his plan to shield his children from knowledge that he was in jail.
Fredenburg acknowledges that his counsel did not object to
the jail conversations on the grounds of relevance and prejudice.
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He asserts that he did not receive the effective assistance of
counsel for this reason.
Fredenburg has forfeited these claims because he did not
object in the trial court. (People v. Gurule (2002) 28 Cal.4th 557,
602 [because defendant failed to assert this theory below, “ ‘the
trial court had no opportunity to resolve material factual disputes
and make necessary factual findings’ ”]; People v. Jones (1998) 17
Cal.4th 279, 299, fn. 1 [we will not reverse a judgment for error
the trial court did not commit and that was not called to its
attention].)
Forfeiture aside, Fredenburg has not established that he
received the ineffective assistance of counsel. Decisions
regarding evidentiary objections are tactical decisions to which
courts will defer to trial counsel. (People v. Lopez (2008) 42
Cal.4th 960, 972 [deciding whether to object is inherently tactical
and failure to object will rarely establish ineffective assistance of
counsel]; People v. Lancaster (2007) 41 Cal.4th 50, 82 [defense
counsel cannot be faulted for failing to object, a tactical decision
that rarely establishes ineffective assistance]; People v. Catlin
(2001) 26 Cal.4th 81, 165 [decision whether to object, move to
strike, or seek admonition regarding testimony is highly tactical
and depends upon counsel’s evaluation of the gravity of the
problem and whether objection or other responses would serve
only to highlight the undesirable testimony].) Here counsel may
have reasonably decided that objecting to Fredenburg’s
conversations with Jamie would serve to highlight the
conversations. Counsel’s decision was inherently tactical and
does not constitute ineffective assistance of counsel.
Moreover, the conversations regarding retaining a private
attorney and shielding the children from knowledge that he was
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in jail could not have unduly prejudiced Fredenburg. Evidence at
trial established that Fredenburg sold and used drugs and he
admitted to police that he was a drug user. He informed Munoz
that he intended to recover the funds that were owed to him and
asked to borrow her BB gun. His claim of ineffective assistance
of counsel must fail.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
BALTODANO, J.
CODY, J.
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Raul A. Sahagun, Judge
Superior Court County of Los Angeles
______________________________
Sandra Gillies, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
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