Filed 1/28/15 P. v. Turner CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.



                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



THE PEOPLE,                                                                                  C069089

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF114626A)

         v.

ROBERT ALEXIS TURNER,

                   Defendant and Appellant.


THE PEOPLE,                                                                                  C069380

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF114626C)

         v.

VALERIE NESSLER,

                   Defendant and Appellant.




                                                             1
       Defendants Robert Alexis Turner and Valerie Nessler were jointly tried before
separate juries for killing a victim who died after being stabbed numerous times, shot
with a shotgun, and set on fire. Turner was convicted of (1) first degree murder with
special circumstances of arson and torture (Pen. Code, §§ 187, subd. (a), 190.2, subd.
(a)(17)(H) and (a)(18)) and personal discharge of a firearm causing great bodily injury or
death (§ 12022.53, subd. (d)), and (2) a separate count of arson causing great bodily
injury (§ 451, subd. (a)). (Unless otherwise stated, statutory references that follow are to
the Penal Code.) Nessler was convicted of (1) first degree murder, with personal use of a
knife (§ 12022, subd. (b)(2)), and (2) arson.
       We ordered defendants’ appeals consolidated.
       Turner contends (1) the trial court erred in failing to instruct on the need for
corroboration of an accomplice as to the special circumstances of arson and torture; (2)
there was insufficient corroborating evidence as to the arson count and the murder special
circumstances of arson and torture; (3) he was improperly denied a jury trial on a
restitution fine (§ 1202.4); and (4) the court erred in imposing and suspending a parole
revocation fine (§ 1202.45) where the sentence gave no possibility of parole. We order
the section 1202.45 fine stricken but otherwise affirm the judgment against Turner.
       Nessler contends the trial court erred in allowing into evidence a note Turner sent
to her through a third party while she was in custody. We affirm the judgment against
Nessler.

                                 FACTS AND PROCEEDINGS

       The following evidence was presented to both juries, unless otherwise stated.
       Nessler shared a Stockton residence with the victim, Jeffrey Wheatley, and
witness Drew Pyeatt. They all used drugs, and the victim sold methamphetamine from
the house. Turner was Nessler’s friend and sometimes joined the residents with his
friend, Allen “AJ” Periman (whose trial was severed and whose second-degree-murder


                                                2
conviction we affirmed in a separate appeal (People v. Periman (Aug. 13, 2014,
C071812) [nonpub. opn.]). Turner had been in the garage, where Pyeatt kept gasoline.
       In March 2010, the victim bragged to Nessler about having killed someone in
1994. Nessler told Turner, who probed for details and said it sounded like the
circumstances surrounding the death of his own brother, William “Moose” Phillips, who
had been shot in 1994. Pyeatt testified he “heard the talk around the house” about it.
       On the afternoon of April 6, 2010, Nessler warned Pyeatt it was not safe for him to
be in the house. Turner phoned and told Pyeatt things were going to happen, and if
Pyeatt said anything, he and his parents would be killed. Pyeatt warned the victim, who
thought he could talk his way out of the potential danger. Pyeatt left. Nessler suggested
she was going to leave the house also but instead stayed behind.
       Pyeatt returned home around 11:30 p.m., saw flames, and called 911. The fire was
to an area around a corpse in the entryway, later identified as Wheatley.
       The city’s fire investigator was of the opinion the fire was intentionally set.
       On April 6, 2010 at about 11:15 p.m., Officer Nick Sareeram of the Lodi Police
Department stopped a black Honda Accord in Lodi. He turned on his spotlight and he
then saw a person riding in the front passenger seat get out of the car and run away. He
could only describe him as a male wearing a white shirt and khaki pants. Officer
Sareeram went to the Honda and found that Allen Periman was driving the car and
Valerie Nessler was seated in the middle of the rear seat. When Officer Sareeram
searched the area of the right front passenger seat he found a glass smoking pipe.
       The medical examiner who performed the autopsy of Wheatley testified the victim
suffered shotgun wounds to his head, face, and trunk; blunt force trauma to his head,
face, and trunk; more than 30 stab wounds to his head, face, neck, and trunk; and thermal
burns to 100 percent of his body. Each form of trauma included injury of lethal capacity,
but none of the injuries were instantaneously fatal. The medical examiner believed the
victim was shot first, began bleeding, then sustained the blunt force trauma and stab

                                              3
wounds at about the same time, and then was set on fire. The victim was still alive when
he was set on fire. The medical examiner opined the victim suffered mentally and
physically “the highest levels of pain a human being could experience.”
       A criminalist testified the blood trail showed the attack started in the home’s
utility room; the victim then moved through the kitchen to the entryway, where he fell.
Different blood drop patterns in other rooms suggested a different person had cut
themselves and walked through the house. Police found a plastic bag in the entryway,
containing two bent bloody knives, clothes, and other items. DNA testing of the blood on
the blades was consistent with the victim’s profile, and blood on one handle was
consistent with Turner’s profile. Blood samples from the hallway and the wall near the
garage door were consistent with Turner’s DNA profile. DNA testing on a pair of latex
gloves found in a bedroom excluded Turner, but a swab from inside one glove was
consistent with Nessler’s DNA, and a bloodstain on the other glove was consistent with
the victim’s DNA.
       Only Nessler’s jury heard evidence of statements she made when questioned by
the police. She initially denied knowing anything about the crimes but then, in a third
interview, admitted she was involved but said she participated out of fear that Turner and
Periman would kill her if she did not.
       Turner turned himself in on April 17, 2010. The tip of his right middle finger was
cut but healing. It was consistent with being about two weeks old and with stabbing a
hard surface with a knife, causing the hand to slide down the blade.
       Only Turner’s jury heard evidence of a recorded jailhouse conversation between
Turner and friend Trisha Rivera. Defendant said, “I didn’t kill him. I didn’t. I shot him,
but I didn’t kill him. I, I mean, that’s just being real. I didn’t. He was still alive when
that bitch set him on fire.” Turner said it would be his word against hers. Turner also
said, with apparent reference to his cut finger, “It’s healed now, see it? I can’t feel it.
Dead. . . . Super-glued it back on. . . . [I]t was just hanging like this. Like, this, my nail

                                               4
could touch this. . . . It got caught on fire. . . . [I]t fuckin’ came back and caught the
whole thing on fire, stuck to my hand.” He said he told the “psych,” “you ever had
fuckin’ brain matter all over your face? Have you ever tasted someone else’s brains?”
Turner also said the police knew his body bore the victim’s DNA because it showed up
on tests, even though Turner had bleached everything.
       Nessler’s friend, Gregg Way, testified in front of Turner’s jury only. He visited
Nessler in jail. He did not know Turner. Nessler told Way that Turner wanted Way to
visit and put money on Turner’s “books” in jail. Way did not visit Turner but put $110
on his books. Way never discussed putting $5,000 on Turner’s books.
       A corrections officer testified before both juries that she overheard a conversation
between Turner and Nessler in holding cells waiting to go to the courtroom. Turner
asked if Nessler had read “it.” She said, “I haven’t even read it yet.” Defendant said,
“You need to read it. You need to read it to him over the phone. And then you need to
destroy it because it’s hot.” A deputy heard the exchange and asked Nessler to turn “it”
over. Nessler said she did not have it, she left it on the bus. The officer threatened to tell
the judge. Nessler smirked, put her hand down her pants, and produced a handwritten
note (“kite”). As the female corrections officer walked away, she heard Turner say
“fucking bitch” but did not know if he meant her or Nessler.
       The note, which was read only to Turner’s jury, not Nessler’s jury, said:
        “Gregg, I wish we could have met on different terms, but it is what it is. Thank
you for what you’ve done for me so far. Let me get to the point of this. I’m going to
need you to take care of me, Gregg, if I’m going to get on the stand and take this whole
beef. I love Val. She’s my little sis. But by taking this, my chance of an appeal is gone.
Can you understand that? You are not obligated to take me up on this. I am only
suggesting that if I’m going to willingly spend the rest of my life in prison, and get Val
off, I need to know I’m going to be taken care of. I’m a man of my word, Bro, always
have been. Look, Gregg, I’m going to need a gesture to know we on [sic] the same page.

                                               5
I’m not asking you to break yourself. That is not what I’m saying. I’m only saying that I
am not going to walk into this life sentence with nothing to show for it. I do understand -
- I do understand you do feel likewise, but this is my life we’re talking about. Put enough
on my books to get me through Tracy. I will then give you my mom’s info so we can
stay in touch. Five grand will get me through the next few years. I’ll take the stand and
do everything to get Val home. The five is to start my journey. Now that I’ve laid it out
to you, the next move is yours. My word is my bond. I know you do not know me, but
my word is bond. This ain’t personal. It’s business. I love you for loving Val. Thank
you for what you did for Chloe [deceased daughter of Nessler].”
       Turner did not testify at trial.
       Nessler testified in front of both juries. She testified she warned the victim to get
out of the house. Before she could leave, Turner kicked in the front door, carrying a
shotgun, followed by Periman, who told her not to leave. She was scared. She heard two
gunshots and the sounds of a struggle coming from the kitchen. Periman told Turner that
Nessler would “snitch.” Turner grabbed a knife from the kitchen, stabbed the victim
multiple times, then gave the knife to Nessler and told her to stab the victim. She was
afraid. She took the knife and pretended to stab the victim. She denied wearing gloves.
Turner ran to the garage, returned with a gasoline can, poured gasoline on the victim, and
then hit the victim on the head with the gas can and with what appeared to be the butt of
the shotgun. Turner told Nessler to get a match and set fire to the victim. She refused.
At Turner’s command, she grabbed the garbage bag for his clothes, and two lighters fell
out when she dumped the garbage from the bag. Turner lit the victim on fire. Nessler
tried to run, but Turner forced her into a car, and Periman drove them away. She did not
alert the police officer who stopped the car because she was afraid. During transport
from jail to the courthouse for trial, someone other than Turner passed her a note, but she
did not get a chance to read it before it was confiscated. She planned to give it to her
lawyer. She denied that she was cooperating with Turner.

                                              6
       After the juries returned guilty verdicts, the trial court sentenced Turner to life
without possibility of parole for the first degree murder with special circumstances of
arson and torture. The court added a consecutive term of 25 years to life for the gun
enhancement. Pursuant to section 654, the court stayed imposition of sentence on the
arson conviction. The trial court sentenced Nessler to a term of 25 years to life for first
degree murder, plus a consecutive one year for use of the deadly weapon. The court
stayed imposition of sentence on the arson conviction.

                                        DISCUSSION

                                              I

                                      Turner’s Appeal

       A. Instruction on Corroboration of Accomplice for Special Circumstances

       Defendant complains the trial court prejudicially erred in failing to instruct the
jury sua sponte with CALCRIM No. 707, regarding the need for corroboration of
accomplice Nessler’s testimony as to the special circumstances of arson and torture. We
conclude the error was harmless.
       Section 1111 provides in part, “A conviction cannot be had upon the testimony of
an accomplice unless it be corroborated by such other evidence as shall tend to connect
the defendant with the commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the circumstances thereof. . . .”
       The trial court has a duty sua sponte to instruct on the need for corroboration if
accomplice testimony is used to prove a special circumstance based on a crime other than
the murder charged in the case. (People v. Hamilton (1989) 48 Cal.3d 1142, 1177, cited
in Bench Notes to CALCRIM No. 707 (2014) p. 431.)
       Arson and torture are both separate crimes. (§§ 451, 206.) Accordingly, the trial
court erred in omitting CALCRIM No. 707.



                                              7
       As noted by the People, the California Supreme Court addressed the prejudice
analysis in People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303-304 (Gonzales):
“ ‘A trial court’s failure to instruct on accomplice liability under section 1111 is harmless
if there is sufficient corroborating evidence in the record.’ [Citation.] ‘Corroborating
evidence may be slight, may be entirely circumstantial, and need not be sufficient to
establish every element of the charged offense.’ [Citation.] The evidence is ‘sufficient if
it tends to connect the defendant with the crime in such a way as to satisfy the jury that
the accomplice is telling the truth.’ [Citation.]” (Id. at p. 303.) The defendant in
Gonzales argued that failure to instruct on corroboration should require the full harmless
error analysis for state law error according to People v. Watson (1956) 46 Cal.2d 818,
836 -- requiring reversal if, after examination of the entire case, it is reasonably probable
defendant would have obtained a more favorable result but for the error. The Gonzales
court rejected the argument, stating the analysis of harmless error in the omission of
accomplice instructions “reflects the idea that sufficient corroboration allays the concerns
regarding unreliability embodied in section 1111. Thus, even in cases where the full
complement of accomplice instructions . . . was erroneously omitted, we have found that
sufficient corroborating evidence of the accomplice testimony rendered the omission
harmless. [Citations.] . . . [T]he evidence of corroboration is ‘sufficient if it tends to
connect the defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.’ [Citation.] Furthermore, we have held that ‘even if there
were insufficient corroboration, reversal is not required unless it is reasonably probable a
result more favorable to the defendant would have been reached.’ [Citation.] In other
words, in the absence of sufficient corroboration we will submit the omission of
accomplice instructions to the harmless error analysis for state law error under [Watson].
[¶] To be sure, we have occasionally engaged in both an analysis . . . under [Watson]
when the full complement of accomplice instructions has been omitted. [Citations.] . . .
[However,] the Watson analysis . . . [is] an alternative harmless error analysis, based on

                                               8
an assumed alternative argument that the corroboration of the accomplice testimony was
insufficient. . . .” (Gonzales, supra, 52 Cal.4th at pp. 303-304.)
       Turner’s reply brief does not address Gonzales but implies it is merely a different
line of precedent than California Supreme Court cases applying the Watson standard.
We disagree, but, in any event, defendant’s contention fails under either standard.
       Though the trial court did not instruct with CALCRIM No. 707, the court did
instruct Turner’s jury with CALCRIM No. 334 on the need for corroboration of
accomplice testimony as to crimes charged: “If you decide that Valerie Nessler was an
accomplice, then you may not convict the defendant of the crimes charged based on her
testimony alone. You may use the testimony of an accomplice to convict the defendant
only if: [¶] 1. The accomplice’s testimony is supported by other evidence that you
believe; [¶] 2. That supporting evidence is independent of the accomplice’s testimony;
[¶] AND [¶] 3. That supporting evidence tends to connect the defendant to the
commission of the crimes. [¶] Supporting evidence, however, may be slight. . . . [¶]
Any testimony of an accomplice that tends to incriminate the defendant should be viewed
with caution. You may not, however, arbitrarily disregard it. You should give that
testimony the weight you think it deserves after examining it with care and caution and in
the light of all the other evidence.”
       Turner cannot possibly have been prejudiced by omission of a specific instruction
on corroboration for the arson special circumstance, because (1) the trial court instructed
on the need for corroboration for the charged crimes; (2) arson was a charged crime
separate from the murder count; and (3) the jury found Turner guilty on the separate
count of arson. The arson special circumstance suffices for the first degree murder
conviction.
       As to the torture special circumstance, there was more than enough corroborating
evidence. During the jail visit Turner admitted shooting the victim. Turner’s blood was
on the handle of a knife that had the victim’s blood on the blade. Turner had a cut finger

                                              9
consistent with having hurt himself while using the knife. Turner’s blood was on the wall
next to the door to the garage where the gasoline can had been stored. The victim
suffered excruciating mental and physical pain before he died.
       Thus we find both that there was sufficient corroboration of Nessler’s testimony as
to the special circumstance allegation and that, if there was not, it is not reasonably
probable that defendant would have obtained a more favorable result if the court had
instructed the jury as set forth in CALCRIM No. 707.
       Under a separate heading, Turner argues that permitting a jury to convict based on
uncorroborated accomplice testimony violates not only state law, but also federal due
process, triggering the question whether error was harmless beyond a reasonable doubt
under Chapman v. California (1967) 386 U.S. 18, 24. Here, however, the jury did not
convict based on uncorroborated accomplice testimony.
       We conclude omission of CALCRIM No. 707 was harmless error.

                         B. Sufficiency of Corroborating Evidence

       Turner argues there was insufficient independent evidence to corroborate Nessler
as to the arson count, as well as the arson and torture special circumstances.
       “[E]vidence of corroboration is ‘sufficient if it tends to connect the defendant with
the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’
[Citation.]” (Gonzales, supra, 52 Cal.4th at p. 304.) “To corroborate the testimony of an
accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that
‘tends to connect the defendant with the crime charged’ without aid or assistance from
the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to
implicate the defendant and thus relates to some act or fact that is an element of the
crime. [Citations.] ‘ “[T]he corroborative evidence may be slight and entitled to little
consideration when standing alone.” [Citation.]’ ” (People v. Avila (2006) 38 Cal.4th
491, 562-563 (Avila).)


                                              10
       Turner’s appellate brief acknowledges the independent evidence “amply
corroborated Ms. Nessler’s testimony as to Mr. Turner’s involvement in a murder.” His
argument is that, without Nessler’s testimony, the jury knew nothing about Turner’s
alleged motive to hurt the victim but instead knew only that Turner shot the victim,
Turner had a healing cut on his finger, and he left blood on a knife and in the house.
Turner’s reply brief says the only item corroborated is that he stabbed the victim. Turner
also maintains there is no independent evidence that he was the one who flicked the
lighter and held it to the gasoline. Turner says the jury was not presented with a “natural
and probable consequence[]” theory to hold Turner responsible for arson and torture
committed by Nessler. Turner suggests the prosecutor relied on the act of setting fire as
the “core” of the torture special circumstance, and there is insufficient corroborating
evidence that he lit the fire.
       As to who lit the fire, Turner told Rivera at the jailhouse that the fire caused
something to stick to his hand. This indicated his proximity to the fire, which an expert
testified did not spread much beyond the victim’s body, because liquefied body fat acted
like a candle wick keeping the flame confined. Plus, the trial court instructed the jury on
aiding and abetting, and that it could find true the arson special circumstance if the
defendant perpetrated or aided and abetted the perpetrator, and the jury could convict of
arson if the defendant set the fire or helped set the fire. Even assuming insufficiency of
independent evidence that defendant lit the lighter and held it to the gasoline, his blood
on the wall next to the garage door provided ample evidence he aided and abetted arson
by fetching the gasoline can.
       As to motive, the court instructed the jury the prosecution did not need to prove
motive. Even so, there was corroborating evidence of Turner’s motive for torture,
because (1) the prosecution in this case presented testimony of law enforcement officers
who investigated, and a witness who was present at, the 1994 death of defendant’s
brother “Moose”; (2) some of the stab wounds to the current victim penetrated only skin

                                             11
and soft tissue, supporting an inference of intent to inflict non-lethal pain; and (3)
Turner’s jailhouse conversation with Trisha Rivera supports an inference that Turner kept
the victim alive while shooting, stabbing, and beating him, in order to extract information
about the death of defendant’s brother. Turner told Rivera: “There’s just so much I
wanna talk to everyone about and I can’t right now, dude. That mother fucker told me
everything, dude. That mother fucker told me . . . Dolly [one of the witnesses to Moose’s
death], Dolly didn’t set Moose up, dude. They set Dolly up. [¶] . . . [¶] . . . That dude
told me everything, dude. Everything. Yup. I kinda want to apologize to her . . . [f]or
the way I treated her, you know? But she didn’t have nothing to do with that shit. She
really didn’t.” Independent evidence that supports an inference of guilt can suffice as
corroboration of accomplice testimony. (Avila, supra, 38 Cal.4th at p. 563.)
       Though the evidence presented in this case was that Moose accidentally shot
himself and that current victim Jeff Wheatley was not even there, there is no evidence
that Turner adopted this view.
       The jury instruction on the torture special circumstances required the jury to find
that the defendant did an act inflicting the pain. However, the prosecutor did not rely on
the act of lighting the fire as the sole basis for torture. The prosecutor argued to the jury:
“[W]e know that throughout this entire ordeal, inflicted upon [the victim] at the hands of
Robert Turner and his colleagues, [the victim] was alive. . . . Clearly [the victim] was
alive when he was lit on fire at the hands of Robert Turner and his colleagues. So we
know that certainly [the victim] was alive when this inflicted [sic] the extreme prolonged
pain. [¶] . . . [¶] That Robert Turner intended to inflict such pain and killed for the
purpose, calculated purpose of revenge, extortion, persuasion . . . or any other sadistic
reason. And, of course, you don’t stab somebody 32 times without trying to inflict
extreme pain, okay. [¶] And while the injuries to [the victim’s] head . . . these little
inflictions here above his left ear, you can only imagine that, you know, [the victim] is
dying. And he’s got to know it. I mean, Dr. Omalu testified as much. Yet Robert Turner

                                              12
wants to get information out of him. And you can just imagine Robert Turner taking that
knife and just, stay awake buddy, stay awake, we need to get a little bit more information
out of you, okay. He’s stabbing him to inflict pain, to get . . . information, because he
wants to take his revenge on him, because he wrongfully thinks that [the victim] is
responsible for his brother. [¶] Now how do we know that? Again, look at his . . . visit
with Trisha Rivera.” The prosecutor argued the torture was the cause of death, and the
shotgun, the stabbing, and the burning all contributed to his death. The prosecutor argued
that, even if the jurors found Turner did not “flick the match,” he aided and abetted the
person who flicked the match. The prosecutor argued, “how can it be any other way
[than intent to inflict extreme pain] when you take a knife, after having shot a man twice
in the chest and -- or in the shoulder and the face, and then take this knife and plunge it
into his body upwards of 32 times? And again, some of those were very shallow. That’s
somebody just messing with somebody. That’s just somebody who is pissed off and I’m
gonna . . . mess you up, all right. . . . [¶] [Turner] intended to inflict such pain and
suffering on [the victim] for the calculated purpose of revenge.”
       We conclude there was sufficient independent evidence to convict defendant of
arson and to find true the special circumstances of arson and torture.
       Under a separate heading, Turner argues the instructional error together with
insufficiency of the evidence deprived him of his right to due process under the 14th
Amendment to the United States Constitution. Since there was sufficient evidence, we
need not address the matter.

                    C. Claimed Right to Jury Trial for Restitution Fine

       Turner argues that, because the $10,000 restitution fine imposed under section
1202.4, subdivision (b), is punitive, the Sixth and 14th Amendments entitle him to a jury
trial with proof beyond a reasonable doubt.




                                              13
       Section 1202.4, subdivision (b), at all pertinent times has provided: “In every case
where a person is convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.” The statute provides a range from a minimum
amount that has changed over time to a maximum of $10,000. (§ 1202.4, subd. (b)(1).)
At all pertinent times, the statute has provided that, in setting the amount in excess of the
minimum, “the court shall consider any relevant factors, including, but not limited to, the
defendant’s inability to pay, the seriousness and gravity of the offense and the
circumstances of its commission, any economic gain derived by the defendant as a result
of the crime, the extent to which any other person suffered losses as a result of the crime,
and the number of victims involved in the crime. . . . Express findings by the court as to
the factors bearing on the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.” (§ 1202.4, subd. (d); Stats. 2009, ch. 454, § 1; Stats. 2011,
ch. 45, § 1, eff. July 1, 2011.)
       Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) held:
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (Id. at p. 490.) The statutory maximum for Apprendi
purposes is “the maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington
(2004) 542 U.S. 296, 303 [159 L.Ed.2d 403] (Blakely), some italics omitted.) The
statutory maximum is not the maximum the court may impose after finding additional
facts, but the maximum the court may impose without any additional findings. (Id. at
pp. 303-304.)
       Turner cites Southern Union Co. v. United States (2012) 567 U.S. _ [183 L.Ed.2d
318] (Southern Union), which held Apprendi applies to the imposition of criminal fines.
The statutory fine in Southern Union was a daily fine of $50,000 for each day the

                                             14
defendant violated a statute. The trial court there made a specific finding as to the
number of days the defendant violated the statute. The United States Supreme Court held
this violated Apprendi. (Southern Union, supra, 567 U.S. at pp. __ [183 L.Ed.2d at
pp. 325-329].)
       Southern Union, Blakely, and Apprendi do not apply where, as here, the trial court
exercises its discretion within a statutory range and does not make any factual findings
that increase the potential fine beyond what the jury’s verdict allows. (People v. Kramis
(2012) 209 Cal.App.4th 346, 351-352.)
       After completion of briefing in this appeal, the United States Supreme Court held
that any fact increasing the mandatory minimum sentence for a crime is an element of the
crime, not a sentencing factor, and must be submitted to a jury. (Alleyne v. United States
(2013) 570 U.S. __ [186 L.Ed.2d 314] (Alleyne).) That case does not apply. It involved
a statutory crime -- using or carrying a gun during a violent crime -- that carried a five-
year mandatory minimum sentence that increased to a seven-year minimum if the gun
was “brandished.” The jury verdict indicated only that the defendant used or carried a
gun. Alleyne held the seven-year sentence violated Apprendi. However, Alleyne
specified: “Importantly, this is distinct from factfinding used to guide judicial discretion
in selecting a punishment ‘within limits fixed by law.’ [Citation.] While such findings of
fact may lead judges to select sentences that are more severe than the ones they would
have selected without those facts, the Sixth Amendment does not govern that element of
sentencing. [Citation.]” (Id. at p. __, fn. 2 [186 L.Ed.2d at p. 328, fn. 2].) Alleyne added
its ruling “does not mean that any fact that influences judicial discretion must be found
by a jury. We have long recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment. [Citations.]” (Id. at p. __
[186 L.Ed.2d at p. 330].)
       Turner was not entitled to a jury trial on the section 1202.4 fine.



                                             15
                                D. Parole Revocation Fine

       Turner argues the trial court erred in imposing and suspending a $10,000 parole
revocation fine under section 1202.45, because the court sentenced him to life in prison
without possibility of parole. The People concede the point, and we agree.
       Section 1202.45, subdivision (a), provides that “In every case where a person is
convicted of a crime and his or her sentence includes a period of parole, the court shall, at
the time of imposing the [section 1202.4] restitution fine . . . assess an additional parole
revocation restitution fine in the same amount . . . .”
       The parole revocation fine is inappropriate where the defendant’s overall sentence
does not anticipate a period of parole. (People v. Petznick (2003) 114 Cal.App.4th 663,
687.) Petznick cited People v. Oganesyan (1999) 70 Cal.App.4th 1178, where the
sentence included both life without possibility of parole for one murder and 15-years-to-
life for another murder. (Id. at p. 1184.) Oganesyan held the section 1202.45 parole
restitution fine was inapplicable because the defendant’s sentence “does not presently
allow for parole and there is no evidence it ever will.” (Id. at p. 1185.)
       Here, the sentence was life without possibility of parole for murder, plus 25-years-
to-life for the firearm enhancement, and the court stayed imposition of sentence on the
arson count. The section 1202.45 fine was improper.

                                Summary of Turner’s Appeal

       The section 1202.45 fine must be stricken. Turner otherwise fails to show grounds
for reversal.

                                              II

                                      Nessler’s Appeal

       Nessler’s sole contention on appeal is that the trial court violated her state and
federal rights by allowing evidence of the circumstances surrounding the note she



                                              16
received while in custody. She claims the case against her was “closely balanced,” and
the evidence “over-persuaded” the jury that she was in cahoots with Turner.
       We reiterate the contents of the note were not read to Nessler’s jury.
       Nessler objected to use of the note or surrounding circumstances at trial, arguing
the evidence was irrelevant and she could not cross-examine Turner about it. The
prosecutor argued the circumstances supported an inference that Nessler was cooperating
with Turner and did not fear him. After an evidentiary hearing, the trial court ruled the
circumstances surrounding discovery of the note were admissible, but the contents of the
note were inadmissible against Nessler unless Turner testified.
       Nessler testified she never read the note and was not cooperating with Turner in
any way. She told Way about Turner threatening her on the bus to court and Way took it
upon himself to put money on Turner’s books only to get Turner off her back. She
continued to receive threats from Turner during transport and from his girlfriend who was
also in jail. She reported the threats but was still transported to court on the same bus as
Turner.
       On appeal, Nessler argues the evidence was irrelevant under Evidence Code
sections 350 and 351, because the prosecution failed to establish a “foundational
prerequisite” that she knew about the note in advance and intended to respond to it. We
review the trial court’s evidentiary ruling for abuse of discretion. (People v. Benavides
(2005) 35 Cal.4th 69, 90.) The trial court did not abuse its discretion. Nessler’s response
to Turner that she had not yet read “it” supported an inference that Nessler knew the note
came from Turner. Turner’s unexplained direction that she “read it to him [Way] over
the phone” supports an inference that Nessler knew what the note was about. Nothing
more was required. The evidence was relevant.
       Nessler argues the evidence should have been excluded as more prejudicial than
probative under Evidence Code section 352, because the evidence prejudiced her duress
defense. We disagree. Prejudice under that statute refers not to damage that flows

                                             17
naturally from adverse evidence, but rather evidence that tends to evoke an emotional
bias against the defendant while having very little effect on the issues. (People v. Karis
(1988) 46 Cal.3d 612, 638.) Evidence is more prejudicial than probative under the statute
when it poses an intolerable risk to the fairness of the proceedings or the reliability of the
outcome. (People v. Waidla (2000) 22 Cal.4th 690, 724.) The circumstances
surrounding the note neither tended to evoke an emotional bias against Nessler nor posed
an intolerable risk to fairness. Her supposition that the jurors may have been inclined to
acquit her but for the note is fantasy.
       There was no evidentiary error.
       Nessler argues the evidence transcended a state law violation and constituted a
federal due process violation subject to reversal unless the error was harmless beyond a
reasonable doubt. However, there was no state law violation, and application of ordinary
rules of evidence such as Evidence Code section 352 generally does not implicate the
federal Constitution. (People v. Abilez (2007) 41 Cal.4th 472, 503.) Nessler’s opinion
that the case was close -- because it hinged on credibility and the jury during
deliberations reviewed her police interviews -- does not state a constitutional claim.
       We conclude Nessler fails to show evidentiary error.




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                                        DISPOSITION

      In Turner’s case, the section 1202.45 fine is stricken, but the judgment is
otherwise affirmed. The trial court shall prepare a corrected abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.
      Nessler’s judgment is affirmed.



                                                       HULL                  , Acting P. J.



We concur:



      BUTZ                 , J.



      HOCH                 , J.




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