PEOPLE v. MARCUS GANN








Filed 3/24/11





CERTIFIED FOR PARTIAL PUBLICATION^*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. NATHANIEL MARCUS GANN et al., Defendants and Appellants.

D055431 (Super. Ct. No. SCD207862)

STORY CONTINUE FROM PART II….
2. Legal principles
A defendant "has a due process right to an impartial trial judge under the state and federal Constitutions. [Citations.] The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1111.) It is well settled that "[j]urors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials." (People v. Mahoney (1927) 201 Cal. 618, 626-627.) Accordingly, it cannot be overemphasized that trial judges must remain scrupulously impartial and be ever vigilant "not to throw the weight of [their] judicial position into a case, either for or against the defendant." (Id. at p. 627.)
As the United States Supreme Court has explained:
"[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias . . . unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. An example of the latter (and perhaps of the former as well) is the statement that was alleged to have been made by the District Judge in Berger v. United States [(1921)], 255 U.S. 22 . . . , a World War I espionage case against German-American defendants: 'One must have a very judicial mind, indeed, not [to be] prejudiced against the German Americans' because their 'hearts are reeking with disloyalty.' [Citation.] Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display." (Liteky v. United States (1994) 510 U.S. 540, 555-556, original italics omitted, new italics added.)

At the same time, we recognize that there is a presumption of judicial "honesty and integrity." (Withrow v. Larkin (1975) 421 U.S. 35, 47.) "[O]nly the most 'extreme facts' would justify judicial disqualification based on the due process clause." (People v. Freeman (2010) 47 Cal.4th 993, 996.)
3. Analysis
Gann's complaint is based on a claim of an extrajudicial comment that he alleges the trial judge made before the trial. However, Gann has not made a sufficient showing that Judge Link in fact made the comment.
In his motion for new trial, Gann's counsel based his claim that Judge Link made the extrajudicial comment on an e-mail message that Gann's counsel received from attorney Morrison in which Morrison stated that he had information about the case, and on a follow-up telephone conversation with Morrison. According to an investigative report prepared by defense investigator Karen Gould, who had listened in on the conversation via a speaker phone:
"Mr. Morrison informed Mr. Garcia he had just heard the Gann conviction on the news, and learned the judge who heard the case was Judge Link. Mr. Morrison further stated he felt Judge Link might have a personal interest in the case. Mr. Morrison recalled being in the courtroom when Mr. Gann and Ms. Hansen were arraigned. Mr. Morrison noticed Judge Link was in the audience of the courtroom during the arraignment. On the way out of the courtroom Mr. Morrison [heard] Judge Link sa[y] the victim in the case, Tim M[a]cNeil, was a good man and did not deserve what these 'punks' did to him. Mr. Morrison thought the statement was odd, but dismissed it until he learned Judge Link presided over Mr. Gann's trial at which point he felt it important to contact Mr. Garcia."

Gould's report was attached as exhibit B to the new trial motion. The new trial motion did not include a declaration from attorney Morrison. Counsel made no attempt during the hearing on the new trial motion to substantiate the claim that Judge Link had made the remark. Hence, what is before us is double hearsay and establishes nothing. Even Gann's counsel referred to the information that Morrison related as an "allegation" during the hearing on the new trial motion.
We will not presume error on appeal. Rather, Gann bears the burden of presenting a record that affirmatively shows that there was an error below. Any uncertainty in the record must be resolved against him. (People v. Green (1979) 95 Cal.App.3d 991, 1001; People v. Clifton (1969) 270 Cal.App.2d 860, 862.) The record here does not affirmatively demonstrate that Judge Link made the extrajudicial comment at issue.
Further, Gann's counsel never expressed any concern that Judge Link was prejudiced against his client during trial. It is also significant that Gann's counsel has not identified any rulings or comments made by Judge Link at trial that demonstrate bias against Gann. (See, e.g., People v. Tappan (1968) 266 Cal.App.2d 812, 816-817 [following trial judge's allegedly prejudicial pretrial comment, defendant's failure to complain of judge's bias during trial showed defendant's confidence in judge's impartiality].)
We reject Gann's contention that he was denied due process because of judicial bias. There was thus no error in denying the new trial motion.
E. Review of psychiatric records of witness Goodman
Gann requests that this court examine the sealed psychiatric records of prosecution witness Goodman and determine whether the trial court erred by not releasing all or some of the records to Gann's counsel. We have complied with this request and have also reviewed the sealed transcript of the ex parte hearing in which Gann's counsel argued that the records should be disclosed.
Before Gann's first trial, Goodman's psychiatric records from the Maricopa County, Arizona jail facility were sent to the trial court. The trial court reviewed the records in camera. Gann sought release of the records for use in impeaching Goodman on cross-examination. The court ultimately ruled that Goodman's psychiatric records would not be released and ordered the records sealed.
Generally, a witness's psychiatric records in the possession of third parties are not discoverable prior to trial. (People v. Gurule (2002) 28 Cal.4th 557, 592.) In People v. Hammon (1997) 15 Cal.4th 1117, 1119 (Hammon ), the California Supreme Court held that the right of confrontation does not require the trial court, "at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers." At the outset, the Hammon court noted that the right of confrontation is a trial right. (Id. at pp. 1123-1124, construing Davis v. Alaska (1974) 415 U.S. 308.) The Hammon court explained that Pennsylvania v. Ritchie (1987) 480 U.S. 39, in which there was no majority opinion, "called into question" a broader reading of Davis v. Alaska, leaving it unclear " 'whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused.' [Citations.]" (Hammon, supra, at p. 1126, italics added.) The Hammon court rejected the argument that the Sixth Amendment grants criminal defendants a right to pretrial discovery of psychiatric information. The court concluded that there was no
"adequate justification for taking such a long step in a direction the United States Supreme Court has not gone. Indeed, a persuasive reason exists not to do so. When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon, as in Davis, to balance the defendant's need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Before trial, the court typically will not have sufficient information to conduct this inquiry; hence, if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily." (Hammon, supra, at p. 1127.)

Under the authority of Hammon, supra, 15 Cal.4th 1117, the trial court did not err in rejecting Gann's request for the release of Goodman's psychiatric records prior to his first trial.
Gann's counsel did not renew his motion for disclosure of Goodman's records at any time during Gann's first trial. Nor did Gann's counsel revisit the issue before or during the joint trial. Gann's counsel did ask the trial court prior to the joint trial whether the court's rulings on motions would stand. The trial court replied in the affirmative and added, "Unless there has been some, change, some evidentiary change, whatever, yes."
Gann cannot persuasively argue that he relied on the court's response in not seeking Goodman's psychiatric records during the second trial, since this response did not prevent Gann's counsel from revisiting other adverse rulings that the court made during the first trial, such as the admissibility of Hansen's prearrest statements. Absent a stipulation, a trial court's rulings made at a first trial are not necessarily in effect at a second trial. (People v. Friend (2009) 47 Cal.4th 1, 63.) "While it is true the trial judge stated he 'just assumed that rulings [he] made [at the first trial] would be observed by the prosecution' at the second trial, defendant presents no authority that the rulings of the first trial were applicable to the second trial absent a stipulation by the parties to that effect." (Ibid.)
In light of the procedural posture on this issue, we conclude that there was no error with respect to the trial court's ruling concerning Goodman's sealed psychiatric records.
IV.
HANSEN'S APPEAL
A. Admission of Hansen's confession
Hansen contends that the trial court prejudicially erred by admitting her postarrest confession because, she maintains, the confession was induced by promises of leniency and was therefore involuntary.
After arresting Hansen at the home of Richard and Bonnie MacNeil, detectives Jonathan Smith and Brett Burkett drove Hansen to the police station. While en route to the station, Smith made two comments to Hansen that Hansen maintains induced her to confess. The first comment is that, " 'the next hour . . . would be the most important hour of her life,' " and the second is that, " '[Hansen's] behavior would affect how she spen[t] the rest of her life.' "
At the police station, Detective Smith told Hansen that he wanted a "truthful statement." He then advised Hansen of her Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. Hansen waived her Miranda rights, and the interview proceeded. Due to a technical glitch, the audio recording of the interview failed to start immediately. As a result, the initial portion of the interview was not recorded. After Hansen had confessed to her participation in the murder of MacNeil, the detectives, who had discovered the recording problem, asked her whether they had threatened her or promised her anything. Hansen replied that the only thing that she had been promised was that she would be a lot better off if she told the truth--which, Hansen said, she thought was "pretty much common knowledge." When the detectives asked Hansen about her familiarity with the Miranda case, Hansen related that her stepfather was a defense attorney, that she excelled in her government class, and that she aspired to become a judge. When asked if she remembered what Smith had told her was going to happen to her, Hansen said, "It depends on what I say." Smith left the room at this point. When he returned, the following colloquy occurred:
"[SMITH]: . . . [D]o you remember when the first, do you remember what happened the first time or before, just before we ask[ed] you questions? Do you remember what happened?"

"HANSEN: You read me my Miranda rights?

"[SMITH]: Correct. So, were there any questions asked of you before that?

"HANSEN: No.

"[SMITH]: No. So, you clearly remember us reading your rights and you told us you understood your rights. And you told us, you want to talk. Correct? And then the other thing I wanted to clear up was, uh, you said, that, uh, well, I asked if or I think [Burkett] asked you if any promises were made to you. You said, 'No.' Right? No promises were made to you, were there?

"HANSEN: No. Other than, just what I said, like . . .

"[SMITH]: He said[] that you'd be better off . . .

"HANSEN: If I told the truth.

"[SMITH]: Right. And what, what did that mean to you?

"HANSEN: That I wouldn't go to jail my whole life.

"[SMITH]: Did you think . . . you wouldn't go to jail if you told us the truth?

"HANSEN: No."

Smith left the interview room again. After Smith returned, he told Hansen that she was mistaken in her belief that her confession would keep her from going to prison for the rest of her life. Smith said that it was possible that she would go to prison for the rest of her life and that he wanted to clarify this because she had told him "that[] that was your interpretation." Smith and Burkett told Hansen that it was up to the district attorney to decide how to handle the case and that her punishment would be determined by the criminal justice system.
In denying Hansen's motion to suppress the confession, the trial court found that the totality of circumstances did not demonstrate that the detectives' statements were "sufficient inducement to be the motivating cause for [her] confession."
A defendant's confession is involuntary, and therefore inadmissible at trial, if it is the product of coercive police activity. (Colorado v. Connelly (1986) 479 U.S. 157, 167; People v. Williams (1997) 16 Cal.4th 635, 659.) The presence of police coercion is a crucial element in determining whether a confession is voluntary. (Withrow v. Williams (1993) 507 U.S. 680, 693; see also People v. Guerra, supra, 37 Cal.4th at p. 1093 [coercive policy activity is a necessary predicate to a finding that the statement was involuntary].) In addition to the crucial element of whether police used coercion to attempt to induce a confession, there must be a causal connection between the police activity and the confession. (People v. Guerra, supra, at p. 1093; see also People v. Vasila (1995) 38 Cal.App.4th 865, 873 [improper promise of leniency does not make statement involuntary unless the promise was motivating factor in giving statement].) Thus, there are two prerequisites to a finding that a confession was involuntary: (1) whether there was police coercion, and, if so, (2) "whether defendant's choice to confess was not 'essentially free' because his will was overborne. [Citation.]" (People v. Memro (1995) 11 Cal.4th 786, 827, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
On a motion to suppress a statement made to police, the prosecution must show by a preponderance of the evidence that the statement was made voluntarily. (People v. Boyette (2002) 29 Cal.4th 381, 411.) When determining whether a statement to police is voluntary, the "totality of circumstances" must be considered, including the details of the interrogation and the characteristics of the accused. (Withrow v. Williams, supra, 507 U.S. at pp. 693-694; People v. Williams, supra, 16 Cal.4th at p. 660.) Among the factors to take into account are: (1) the crucial element of police coercion; (2) the length of the interrogation; (3) its location; (4) its continuity; and (5) the defendant's maturity, education, physical condition and mental health. (People v. Williams, supra, at p. 660.)
It is undisputed that Hansen was not subjected to overt physical brutality. However, this fact is not dispositive, "for 'coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition.' " (People v. Montano (1991) 226 Cal.App.3d 914, 934, quoting Blackburn v. Alabama (1960) 361 U.S. 199, 206.) The question in this case is whether psychological coercion, by means of an implied promise of leniency, occurred. "It is well settled that a confession is involuntary . . . if it is elicited by any promise of benefit or leniency whether express or implied. [Citations.]" (People v. Jiminez (1978) 21 Cal.3d 595, 611, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 409, fn. 17.)
In this context, not all references to potential benefit are improper. Truthful statements that an accused's cooperation might be useful in later plea negotiations, when unaccompanied by threats or promises, will not render a confession involuntary. (People v. Jones (1998) 17 Cal.4th 279, 298.) Similarly, it is not improper for police to tell an accused that it would be better to tell the truth. (Ibid.) When the police merely point out a benefit that flows naturally from truthful and honest conduct, a subsequent statement will not be considered involuntary. (People v. Thompson (1990) 50 Cal.3d 134, 170.) Thus, police comments to the effect that the accused would "feel better" or would be "helping himself by cooperating" do not, by themselves, establish improper inducement. (People v. Jackson (1980) 28 Cal.3d 264, 299, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
However, if the accused "is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one," the statement is deemed to be coerced. (People v. Hill (1967) 66 Cal.2d 536, 549.)
Once police coercion is demonstrated, a causal link between that coercion and the confession must be shown. The due process issue in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." (Rogers v. Richmond (1961) 365 U.S. 534, 544.)
"A confession is 'obtained' by a promise within the proscription of both the federal and state due process guarantees if and only if inducement and statement are linked, as it were by 'proximate' causation. . . . The requisite causal connection between promise and confession must be more than 'but for': causation-in-fact is insufficient. [Citation.] 'If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because so few people give incriminating statements in the absence of some kind of official action.' [Citation.]" (People v. Benson (1990) 52 Cal.3d 754, 778-779; see also People v. Mickey (1991) 54 Cal.3d 612, 647 [coercive activity must be "the 'proximate cause' of the statement"].)

In reviewing the trial court's denial of a suppression motion, we defer to any factual findings that the court may have made as to the circumstances surrounding the confession, if supported by the record. We independently review the legal issue of whether the prosecution met its burden to prove that the confession was voluntarily given without previous inducement, intimidation or threat. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)
With respect to the two statements by Smith, i.e., that " 'the next hour . . . would be the most important hour of [Hansen's] life' " and that " '[Hansen's] behavior would affect how she spen[t] the rest of her life,' " the first statement is neither an express nor implied promise of leniency. Rather, it appears that Smith was emphasizing the seriousness of the situation. Although one could interpret the statement as implying that now was the time to start being truthful, such an implication does not constitute psychological coercion. (People v. Jones, supra, 17 Cal.4th at p. 298; People v. Williams, supra, 16 Cal.4th at pp. 660-661; People v. Flores (1983) 144 Cal.App.3d 459, 469.)
The second statement is more problematic. That statement arguably implied that Hansen might or might not spend the rest of her life in prison, depending on how she conducted herself during the interview. Smith's postconfession attempts to clarify that he did not intend this implication do not cure the problem, since Hansen had already confessed; an after-the-fact explanation cannot remedy an improper inducement.
The question remains whether, under the totality of the circumstances, the implied promise that if Hansen were to confess, she would not spend the rest of her life in prison, motivated her to confess--that is, whether such inducement was sufficient "to overbear [her] will to resist and bring about [a] confession[] not freely self-determined." (Rogers v. Richmond, supra, 365 U.S. at p. 544.)
The interrogation was recorded on a DVD player. Throughout the interview, Hansen, who was one month shy of her 18th birthday, displayed a calm and rational demeanor. She showed emotion only during breaks and at the end of the interview. Hansen's responses and her level of engagement in the interview indicate that she understood what was being discussed and that she was aware of her predicament. She also told the detectives that she was familiar with her Miranda rights. The interview lasted about 80 minutes, and thus, was not excessive in length. The detectives removed Hansen's handcuffs for the interview. Throughout the interview, the detectives' tone and demeanor were civil and professional. The detectives did not use deceptive practices during the interview. In fact, Hansen remarked during the interview that the detectives were "both very nice," and said, "I think you guys are the most straightforward people I've seen."
The DVD recording of the interview supports the trial court's finding that Hansen did not confess because of coercion applied by the police, but rather, that she confessed freely and voluntarily. After independent review of the interrogation DVD, we agree.
B. Presentation of Gann's defense before Hansen jury
Hansen contends that the trial court prejudicially erred by allowing her jury to hear portions of Gann's defense case. The contention is without merit.
After the prosecution presented its last witness in its case-in-chief, Hansen's counsel stated that Hansen's jury should not be present for Gann's defense case because Gann's witnesses were not relevant to Hansen. In later discussions with the court, Hansen's counsel elaborated that since the prosecution had rested its case as to Hansen, allowing Gann's counsel to present Gann's case-in-chief in the presence of Hansen's jury would effectively mean that Gann's counsel would be acting as an additional prosecutor against Hansen.^[1]
The trial court rejected these arguments and ruled that Hansen's jury would be present during portions of Gann's defense case. The court found that the evidence was relevant to both defendants, that there was no Aranda-Bruton issue,^[2] and that Hansen's counsel had been given sufficient time to prepare for this eventuality.
After the prosecution rested its case-in-chief against both defendants, Hansen rested without presenting any evidence. Gann's counsel then presented his defense case. Both Hansen's jury and Gann's jury were present during the testimony of four of Gann's witnesses. Detective Robert Donaldson demonstrated how a right-handed person typically would lay down the murder weapon. Lisa Dimeo, a forensic investigator, testified that two sets of fingerprints were found on the murder weapon, and that neither set was from Gann. Dimeo also said that she could not exclude MacNeil's right ring finger as a source in one of the sets of fingerprints. Detective Smith identified a photograph of Gann's truck, which had been impounded in Arizona. Karen Gould, a defense investigator, demonstrated that with a zip-tie binding her hands behind her back, she could easily make the binding tighter by herself. On cross-examination by Hansen's counsel, Gould admitted that she did not suffer from rheumatoid arthritis, as Hansen did. The Hansen jury was excused after Gould's testimony, and did not hear the testimony of the remainder of Gann's witnesses.
The law has a preference for joint trials of jointly charged defendants. (People v. Mitcham (1992) 1 Cal.4th 1027, 1049.) Section 1098 provides that criminal defendants charged jointly with a crime must be tried jointly unless the court orders separate trials. The need for multiple juries in joint trials arises because of the holdings in Aranda, supra, 63 Cal.2d at pages 529 to 531, and Bruton, supra, 391 U.S. at pages 126 and 137--namely, that extrajudicial statements of a nontestifying codefendant implicating the other defendant are inadmissible against the other defendant in a joint trial. "[T]he problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence." (People v. Jackson (1996) 13 Cal.4th 1164, 1207-1208.) The use of dual juries is not a basis for reversal on appeal in the absence of either "identifiable prejudice" resulting from the manner in which it is implemented or " 'gross unfairness' " that deprives the defendant of a fair trial or due process. (People v. Cummings (1993) 4 Cal.4th 1233, 1287, citation omitted.)
The testimony of the four witnesses that Hansen's jury heard constituted relevant evidence, and did not implicate Hansen's rights under Aranda and Bruton. Further, the fact that the prosecution had rested did not render the testimony of these four witnesses "inadmissible evidence" as to Hansen. (People v. Jackson, supra, 13 Cal.4th at p. 1208.) The issue is not whether the testimony would have been precluded in a separate trial under the rules governing the order of proof (see §§ 1093, 1094), but rather, whether the evidence was in fact admissible as to Hansen in her joint trial with Gann.
Hansen argues that if she had been separately tried, her jury would not have heard the prejudicial testimony of these four witnesses. Hansen claims that the testimony of these witnesses decimated her defense, i.e., that she had withdrawn from the conspiracy, because the evidence implied that she--and not Gann--had fatally shot MacNeil. Specifically, Hansen claims that
"the jury would [] have been left with the impression: (1) [Hansen] could have been the shooter because [Dimeo] did not test the latent fingerprints lifted from the weapon against [Hansen's] known prints and her counsel apparently did no such testing; (2) [Hansen] also could have been the shooter because the orientation of the gun on the ground was consistent with that of a right-handed person and Gann was not right-handed; and (3) [Hansen's] extrajudicial statements regarding zip-ties were fabrications. More importantly, [Hansen's] jury would not have seen a live demonstration on placement of a firearm on the ground by a right-handed person. Nor would it have seen the use of the zip-ties."

Hansen's arguments are based on conjecture. During Gann's first trial, the defense called Donaldson and Dimeo. If Hansen had been tried separately, it is possible, if not likely, that the prosecutor would have chosen to present testimony from Donaldson and from a fingerprint expert who examined the gun. However, because this was a joint trial, the prosecutor may have anticipated that Gann would call such witnesses and, for tactical or strategic reasons, chose to cross-examine the witnesses when Gann called them rather than calling them during the prosecution's case-in-chief. Hansen's speculative claims as to possible prejudice from the use of dual juries do not establish the "identifiable prejudice resulting from the manner in which it is implemented" that is required for reversal. (People v. Harris (1989) 47 Cal.3d 1047, 1075.) Further, there was no constitutional violation because the evidence that Gann presented in the presence of Hansen's jury is evidence that the prosecutor could have presented, but did not. (People v. Jackson, supra, 13 Cal.4th at p. 1208.) Hansen's due process rights were not infringed because Gann, rather than the prosecutor, introduced admissible evidence against her. (Ibid.) Third, Hansen had no right to a separate trial. (See People v. Baa (1944) 24 Cal.2d 374, 377; People v. Wallace (1970) 13 Cal.App.3d 608, 616.)
Even if a jury at a separate trial would not have heard the testimony of these four witnesses, it does not follow that it was reversible error for Hansen's jury to have been present during the testimony of these witnesses at this trial. (See Zafiro v. United States (1993) 506 U.S. 534, 540.) "[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." (Ibid.)
There was no error in allowing Hansen's jury to hear these four witnesses testify. Hansen has failed to demonstrate either prejudice or gross unfairness that deprived her of a fair trial or due process.
C. Imposition of parole restitution fine
Hansen contends that the trial court erred by imposing a parole restitution fine of $1,000 pursuant to section 1202.45 because her sentence was life in prison without the possibility of parole. She is correct. The fine must be stricken.
As the Attorney General acknowledges, a parole restitution fine under section 1202.45 does not apply to a defendant who has been sentenced to a term of life in prison without the possibility of parole. (People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183-1186.)
V.
DISPOSITION
As to Gann, the judgment is affirmed.
As to Hansen, the trial court is directed to (1) strike the $1,000 parole restitution fine under section 1202.45; (2) prepare an amended abstract of judgment; and (3) forward the amended abstract to the Department of Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.

AARON, J.

WE CONCUR:



HALLER, Acting P. J.



McINTYRE, J.



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