Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 03SF0483, James A. Stotler, Judge. Affirmed.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda
Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Tamara Kay Bohler appeals from a judgment after a jury convicted her of attempted murder and murder by means of lying in wait, and found true she inflicted great bodily injury on one of the victims and she personally used a dangerous and deadly weapon, a knife. She argues there was instructional error, evidentiary error, cumulative error, and sentencing error. None of her contentions have merit, and we affirm the judgment.
FACTS
Bohler met Jean-Marc Weber, who was in divorce proceedings with his wife, at a meeting of the Tall Club of Orange County in the fall of 1998. Weber had a daughter named Sara and a son named Alex. They dated a couple times a month for four or five months and their relationship became more serious. In August 1999, Weber bought a condominium in Mission Viejo. From August 1999 to August 2000, Bohler spent nearly every weekend at Weber’s condominium. To this point, their relationship was normal, and she got along with his children.
In August 2000, Weber had a birthday party for his parents at his home. 10-year-old Alex, and Bohler and her 12-year-old son, Danny, attended the party. At some point, Alex told Danny he could not sleep in Sara’s bed. Bohler, who was intoxicated, went upstairs, and with a closed fist swung at Alex who was lying underneath the blankets. Bohler hit the blankets and the bed, and may or may not have hit Alex. Weber and Alex left, and after Weber arranged for Alex to spend the night at his parents’ house, Weber returned home. When he did, he asked Bohler to leave and offered to pay for a taxi cab and motel, but she refused. After Weber called 911, Bohler left. Officers arrived, and Weber told them what had happened. Bohler was arrested and convicted of driving under the influence of alcohol.
A few months later, Weber began seeing Bohler again, but she was angry at him because she blamed him for her conviction. Their relationship was not the same, and they did not see each other as often. In November 2001, Weber told Bohler he could not spend Thanksgiving with her because he was having breakfast with his children and he had to work. She was angry. On Thanksgiving evening, Bohler appeared at Weber’s house visibly upset. When she tried to go upstairs to get a dress, Weber prevented her from doing so, and she broke a vase.
Sometime later, Weber spoke with Bohler on the telephone and told her their relationship was over. Shortly thereafter, Bohler arrived at Weber’s house and pounded on the door. When Weber did not let her in, she kicked and threw garden pots that were on the front porch.
In August 2002, Bohler arrived at Weber’s house with court paperwork. She told him her ex-husband was seeking custody of their son, in part because of her prior conviction, and she blamed Weber. Weber and Bohler engaged in sexual relations from August 2000 to August 2002.
Pursuant to Weber’s invitation, he and Bohler went fishing on July 3, 2003. As they headed back to shore after fishing most of the day, Bohler asked Weber when he was going to tell his family about their relationship, and when things would be “‘normal’” again. Weber responded he was not going to tell his family anything because there was “‘really nothing to tell[]’” and they would never have a normal relationship. When they returned to Weber’s condominium, they had dinner with then 13-year-old Alex; Weber and Bohler shared a bottle of wine. After dinner, Weber and Bohler watched a movie, and Alex played with friends. At approximately 10:00 p.m., after telling Alex he could not spend the night at his friend’s house, Weber told Alex to go to bed because they had to wake up early for a family trip. Weber told Bohler he was going to spend the holiday with his family, and he would take her home early the next morning. Alex went to sleep in his bedroom.
Weber and Bohler went to his bedroom and had sexual relations, and then watched television. At about 12:30 a.m., Weber gave the television remote control to Bohler, who appeared to be wide awake, and he fell asleep.
Weber awoke to a strange sensation on his throat, jumped out of bed, and ran to the bathroom holding his neck. He turned on the bathroom light and saw blood spraying from his neck against the mirror. He looked towards Bohler, who asked him if he was okay. Weber asked what she had done. She walked towards him with the knife in her hand and said, “‘I’ve got nothing to lose. You’ve taken it all away from me.’” Weber tried to get the knife away from Bohler, who was blocking his bedroom doors. During the struggle, Bohler stabbed Weber in the face, chest, and arms. Weber finally wrestled the knife away from her and escaped from the bedroom. Weber looked towards his son’s bedroom, but did not call his name because he did not want to draw attention to him. Bohler pushed Weber down the stairs, and he held on to the knife. Bohler walked down the stairs, and Weber ran outside naked.
Weber testified that at the time of the incident he was approximately six feet, four inches tall and weighed approximately 220 or 230 pounds, and Bohler was six feet tall and weighed about 190 or 200 pounds.
At approximately 2:50 a.m., Weber ran to his neighbor’s house and rang the doorbell. Amelia Theresa Sustaita opened her upstairs bedroom window and asked who was at the door. Weber told her he had been hurt and to call 911. When Sustaita came downstairs and opened the door, he refused her offer to come in. Sustaita called 911.
Meanwhile, Bohler retrieved another knife and went upstairs to Alex’s bedroom. She stabbed him 13 times as he lay in bed. The fatal wound punctured his left lung, and he bled to death. Law enforcement officers arrived approximately three minutes after the 911 call.
The next day in the late afternoon, Anthony Sosa, a security guard for a homeowner’s association in San Juan Capistrano, was on patrol when he saw Bohler walking barefoot in an alley wearing a black nightgown with a sweater covering her. Sosa asked her if she needed help, and Bohler asked where the train was. Sosa gave her directions. A few hours later, Sosa saw Bohler sitting on the grass in front of a house. Sosa got out of his car and saw she had cuts on her hands. After she refused his offer of first aid, he called the paramedics. When the paramedics were treating Bohler, she apparently said something about going to the train station to step in front of a train.
An officer took Bohler to the hospital where investigators asked her questions. During an examination, a doctor asked Bohler how she got the cuts on her hands, and she responded, “struggling.” The doctor asked her if she remembered what happened, and she said, “Pretty much. It’s not a nice thing . . . .” As an investigator drove Bohler to the police station, Bohler asked what she was “‘being booked for[.]’” The investigator responded murder and attempted murder. She asked who survived, and when the investigator told her Weber, she did not respond further.
Investigators recorded the interview.
An information charged Bohler with attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), and murder by means of lying in wait (§§ 187, subd. (a), 190.2, subd. (a)(15)) (count 2). With respect to count 1, the information alleged she inflicted great bodily injury on Weber within the meaning of section 12022.7, subdivision (a). As to counts 1 and 2, the information also alleged she personally used a dangerous and deadly weapon, a knife (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
Guilt Phase
At trial, the prosecutor offered the testimony of Alice Youngbar, Bohler’s work supervisor. Youngbar stated that after the incident, she went to Bohler’s work station to review her work. Bohler had organized her files in “very neat . . . piles with yellow sticky notes as to what was to be done to those [files].”
Bohler offered the testimony of one of her four sisters, Sheryl Tye. Tye explained Bohler became paranoid during the two years prior to the incident. Bohler had her mail delivered to a post office box because she thought her mail was being intercepted. She did not want to talk on the telephone because she thought her calls were being recorded. Tye stated there were problems with alcohol in the family.
Bohler also offered the testimony of her manicurist, Denise Audet, who had met her in the beginning of 2002 and became her friend. Audet stated Bohler changed from a happy person “to a very depressed person[]” during the year prior to the incident. Audet said that in July 2003, she believed Bohler was suicidal. Audet stated Bohler believed her ex-husband “bugged” her house and people were listening to her conversations. On cross-examination, Audet said Bohler told her drinking alcohol caused her problems. She stated that two days before the incident, Bohler gave Audet her dog. She also gave Audet her house key and said she might need it.
On rebuttal, the prosecutor offered the testimony of Dr. Veronica Thomas, a psychologist. Thomas testified she reviewed case-related documents and she interviewed Bohler for approximately four and one-half hours. Thomas explained that when Bohler told her she did not want to take any more tests, Thomas decided to rely on the other doctors’ assessments that she had reviewed. Thomas stated she did not see any signs of paranoid ideation, psychosis, or disordered thinking. She opined that at the time of the stabbings, Bohler suffered from borderline personality disorder, including paranoia, and alcohol abuse, but that she did not have bipolar disorder and she was not psychotic. On cross-examination, Thomas testified a person can have a psychotic episode and “recompensate at another time.” She agreed a psychotic person does not remain psychotic permanently.
The jury convicted Bohler on all counts and found true all the enhancements.
Sanity Phase
At the sanity phase of the jury trial, the parties stipulated the jury could consider all evidence admitted during the guilt phase of the trial in making its determination as to Bohler’s legal sanity at the time of the stabbings. We will first discuss some of the testimony presented at the guilt phase of the jury trial that is relevant to the issue of Bohler’s sanity, and then discuss the testimony offered at the sanity phase of the jury trial.
The following testimony was offered at the guilt phase of the jury trial. The prosecutor offered the testimony of Christopher Carnes, a mental health nurse at the Orange County Jail, who assessed Bohler’s mental health for approximately 20 to 30 minutes. Carnes stated Bohler was oriented to purpose, place, and time, but that she might have mild paranoia, which is normal for someone in a strange environment. Carnes did not believe she was psychotic. He referred Bohler for a psychological evaluation because of the high-profile nature of the case.
Tye explained she had four sisters: Bohler, Terry, Sandra, and Mary. Tye admitted she was diagnosed as “bipolar, manic” approximately 20 years ago, but that she received treatment and had no symptoms. She said Terry had been institutionalized and had passed away. Tye explained Mary also suffered from symptoms of paranoia.
Bohler offered the testimony of her case manager, Denise Thomas, a registered nurse at the Orange County Jail. Thomas explained that in the month following the stabbings, Bohler’s mood changed from irritable to depressed. Thomas did not see any symptoms indicating Bohler was psychotic, but she was prescribed anti-psychotic medications.
Bohler also offered the testimony of Richard Lettieri, a clinical and forensic psychologist and psychoanalyst. Lettieri explained he first met Bohler two years after the stabbings, and he met with her five times for a total of 13 hours. Lettieri performed tests on Bohler, reviewed law enforcement and medical records, and interviewed Tye. He opined there was a well-established history of serious depression in Bohler’s family, including Bohler’s mother attempting suicide when Bohler was a teenager. He stated Bohler had a history of alcohol abuse. He opined Bohler had multiple diagnoses with the primary diagnosis being bipolar disorder with psychosis. He explained Bohler manifested delusional and paranoid thinking, and alcohol can exacerbate mental illness. Lettieri opined that on the night of the incident, Bohler was psychotic.
The following testimony was offered at the sanity phase of the jury trial. Bohler offered the testimony of Dr. Reid Meloy, a forensic psychologist. Meloy testified he reviewed documents, including crime records, medical records, and interviews, interviewed Bohler twice for a total of eight hours, conducted psychological tests on Bohler, and reviewed Lettieri’s findings. He stated Bohler’s sister, Terry, had a major mental disorder, and mental disorders “run in families.” He opined that Bohler had a “major mental disorder . . . with major depressive disorder . . . with psychotic features and . . . a generalized anxiety disorder.” And, he opined that on the night of the stabbing, Bohler was psychotic and paranoid. Meloy stated he believed Bohler knew the nature of her acts, but she did not know they were wrong.
Bohler also offered the testimony of Chris Corbett, a public defender investigator. Corbett testified the psychiatric hospital where Terry received treatment was gone and he could not locate her treatment records.
Bohler also offered the testimony of Dr. Ernest Klatte, a forensic psychiatrist. Klatte testified he began seeing Bohler less than one week after the stabbings, and saw her a total of 28 times over approximately 19 months. Klatte was hired to examine and diagnose Bohler, not to provide an opinion whether she was legally insane. Klatte opined Bohler was psychotic and had paranoid delusions, and concluded she had bipolar disorder. Klatte stated he did not make a formal diagnosis concerning whether Bohler was sane. He opined Bohler knew the nature of her act, but he could not state whether she knew the difference between right and wrong.
Thomas testified that at the time of the stabbings, Bohler was legally sane. She believed Bohler knew the nature and quality of her acts and what she was doing was morally and legally wrong. On cross-examination, Thomas agreed a paranoid schizophrenic can be insane at a particular moment, but not be permanently insane.
The jury found Bohler was legally sane at the time she committed the offenses.
After the trial court denied Bohler’s motion for a new trial, the court sentenced her to life without the possibility of parole on count 2, life with the possibility of parole on count 1 to be served consecutively, and five-year determinate term for the various enhancements to be served consecutively. Pursuant to section 1202.45, the court imposed a parole revocation restitution fine in the amount of $5,000.
DISCUSSION
I. Exclusion of evidence
Bohler argues that during both the guilt and sanity phases of the jury trial the trial court erroneously excluded evidence that in 1978 her sister, Terry, killed her boyfriend and committed suicide. Bohler claims “this ruling was as wrong as wrong can be.” We disagree.
Relevant evidence is “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Although “‘there is no universal test of relevancy, the general rule in criminal cases [is] whether or not the evidence tends logically, naturally, and by reasonable inference to establish any [material] fact . . . .’” (People v. Freeman (1994) 8 Cal.4th 450, 491.) Evidence that leads only to speculative inferences is irrelevant. (People v. Stitely (2005) 35 Cal.4th 514, 549.)
Evidence Code section 352, however, authorizes a trial court to exclude relevant evidence. “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) For purposes of Evidence Code section 352, prejudice means “‘evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.’” (People v. Heard (2003) 31 Cal.4th 946, 976.) “We review a challenge to a trial court’s choice to admit or exclude evidence under [Evidence Code] section 352 for abuse of discretion. [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Before the guilt phase of the jury trial, the prosecutor moved to exclude any testimony of the homicide/suicide. After hearing extensive argument from both counsel, the trial court ruled evidence of the homicide/suicide was inadmissible because it was remote, speculative, and unduly prejudicial. Although it found evidence of the homicide/suicide was “wrought with problems[,]” the court concluded evidence of mental illness in the family and evidence mental illness is genetically inherited was admissible.
Before the sanity phase of the jury trial, defense counsel revisited the issue of the admissibility of the homicide/suicide evidence, producing a coroner’s report and suicide note. The court stated evidence of the family’s history of mental illness and evidence there is a genetic basis for mental illness is admissible, but evidence of the homicide/suicide was inadmissible because had little probative value as it was remote and unduly prejudicial.
Evidence Bohler’s sister, Terry, killed her boyfriend and committed suicide approximately 25 years before the current incident was not relevant in either the guilt phase or the sanity phase of the jury trial because it did not logically, naturally, and by reasonable inference establish any material fact for Bohler. The homicide/suicide evidence was not relevant to the issue of Bohler’s intent or whether she was legally insane at the time she committed the offenses here, approximately 25 years later, because the evidence was too speculative. The homicide/suicide evidence was too speculative because the jury could improperly infer that because Terry earlier had been institutionalized, she was legally insane when she killed her boyfriend and committed suicide, and therefore, Bohler was legally insane when she attacked Weber and Alex. There was a dearth of evidence concerning Terry’s mental health, and there was evidence Terry used drugs and the family had substance abuse problems. Any connection between the homicide/suicide and the events here was too speculative to properly infer genetically inherited mental illness caused both Terry and Bohler to kill.
Not only was the homicide/suicide evidence irrelevant, it would have also confused the jury. Before concluding Bohler was legally insane when she attacked Weber and Alex, the jury would have had to first decide whether Terry was inflicted with a mental illness that caused her to kill her boyfriend and take her own life. This was a collateral issue that would have only served to confuse the jury. Therefore, we conclude the trial court properly excluded the homicide/suicide evidence.
Although we conclude the trial court properly excluded this evidence and, therefore, Bohler suffered no prejudice, we also note the court allowed, and Bohler offered significant evidence establishing mental illness was genetically inherited and her family had a substantial history of mental illness. There was evidence Bohler’s three sisters suffered from mental illness, and her mother attempted suicide when Bohler was a teenager. Additionally, the jury heard expert witnesses testify mental illness can be genetically inherited.
As we explain above, Klatte testified Bohler’s sister committed suicide. The trial court admonished the jury to not consider this testimony. The prosecutor relies on Klatte’s stricken testimony to suggest Bohler was not prejudiced. As the Attorney General is fully aware as the rule often accrues to its benefit, “‘We presume that jurors understand and follow the court’s instructions’ [citation][.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1005.)
Finally, there was overwhelming evidence Bohler was legally sane when she attacked Weber and Alex. Bohler had a history of violent behavior towards Weber and Alex, she blamed Weber for her conviction and her ex-husband’s attempts to gain custody of their child in part because of that conviction, and Bohler arranged her personal and work affairs days before the attack. On the day of the attack, Weber told Bohler they would never have a normal relationship, but he continued to engage in sexual relations with her. He again refused to spend a holiday with her. With respect to the attacks, Bohler waited until Weber was asleep to stab him, and then after he woke up and ran to the bathroom, she asked him if he was okay, attacked him again, and chased him out of the house. After Bohler chased Weber from the house, she got another knife, went upstairs, and stabbed Alex 13 times as he lay in bed. Finally, there was expert witness testimony that at the time of the attacks, Bohler was legally sane.
II. Jury instruction
Bohler contends the trial court erroneously instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 3450, “Insanity: Determination, Effect of Verdict” because it directed a verdict of legally sane. Not so.
CALCRIM No. 3450 states: “You have found the defendant guilty of each of the charges, enhancements, and special allegations alleged in the [i]nformation in this case. Now you must decide whether she was legally insane when she committed the crimes. [¶] The defendant must prove that it is more likely than not that she was legally insane when she committed the crimes. [¶] The defendant was legally insane if: [¶]
1. When she committed the crimes, she had a mental disease or defect; [¶] AND [¶]
2. Because of that disease or defect, she did not know or understand the nature and quality of her act or did not know or understand that her act was morally or legally wrong. [¶] None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts. [¶] You may consider any evidence that the defendant had a mental disease or defect before the commission of the crimes. If you are satisfied that she had a mental disease or defect before she committed the crimes, you may conclude that she suffered from that same condition when she committed the crimes. You must still decide whether that mental disease or defect constitutes legal insanity. [¶] If you find the defendant was legally insane at the time of her crimes, she will not be released from custody until a court finds she qualifies for release under California law. Until that time she will remain in a mental hospital or outpatient treatment program, if appropriate. She may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for her crimes. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crimes. You must not speculate as to whether she is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way. [¶] If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that she was legally sane when she committed the crimes. [¶] If you conclude that the defendant was legally sane at the time she committed the crimes, then it is no defense that she committed the crimes as a result of an uncontrollable or irresistible impulse. [¶] If, after considering all the evidence, all [12] of you conclude the defendant has proved that it is more likely than not that she was legally insane when she committed the crimes, you must return a finding of not guilty by reason of insanity.” (Italics added.)
In People v. Thomas (2007) 156 Cal.App.4th 304, 309 (Thomas), the court addressed the same issue we have here—whether the above italicized language directed a verdict in favor of legal sanity. The court agreed with defendant that viewed in isolation, the italicized language could be misleading because there is a “risk the jury might read the [language] to mean the assumption is irrebuttable.” (Id. at p. 310.) But after reciting the proper legal standards—the correctness of jury instructions is to be determined from the entire charge and the test on review is whether there is a reasonable likelihood the jury applied the challenged instruction in violation of the constitution—the court opined when CALCRIM No. 3450 is read as a whole, a reasonable juror would not have been misled. The court explained: “As indicated, the thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses. This is consistent with section 25, subdivision (b). The instruction states that if the jury determines the defendant had a mental disease or defect at any time before he committed the offenses, the jury may conclude that same condition existed at the time of the offenses. It concludes by stating that, if the jury decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity. Thus, even if the jury was directed to ‘assume’ the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. An assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.” (Id. at pp. 310-311.)
We find Thomas persuasive and agree with its holding that when CALCRIM No. 3450 is viewed as a whole, a reasonable juror would not have been misled. Because we find CALCRIM No. 3450 is proper and did not direct a verdict of sanity, we need not address Bohler’s related claims a court may not direct a verdict in a sanity trial or a court may not direct a verdict in a sanity trial where a defendant has offered sufficient evidence of insanity. Additionally, we need not address Bohler’s contention her Special Jury Instruction No. 2 did not cure any error.
The instruction stated: “Temporary insanity as a defense is as fully recognized by law as permanent insanity. If the defendant, at the time of the offense was insane under the two-prong test, it makes no difference whether the period of insanity lasted several months, or merely a period of hours.” To the extent, if at all, Bohler claims her special instruction conflicted with CALCRIM No. 3450, we are not persuaded.
III. Cumulative error
Bohler contends the cumulative effect of the evidentiary and instructional errors requires reversal. We have concluded there were no errors, and therefore, this claim has no merit.
IV. Restitution Fine
Bohler argues the trial court erroneously imposed a parole revocation restitution fine pursuant to section 1202.45 because she was sentenced to life in prison without the possibility of parole. The Attorney General agrees imposition of the fine was improper. In her reply brief, Bohler notes that the day she filed her opening brief, the California Supreme Court issued its opinion in People v. Brasure (2008) 42 Cal.4th 1037 (Brasure).
In People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181 (Oganesyan), defendant was sentenced to life without the possibility of parole for a first degree special circumstance murder and an indeterminate life sentence for second degree murder. The court opined that where defendant was sentenced to life in prison without the possibility of parole, a parole revocation restitution fine pursuant to section 1202.45 was improper regardless of whether defendant was also sentenced to an indeterminate term. (Id. at pp. 1183-1186; People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
In Brasure, supra, 42 Cal.4th at page 1075, defendant was sentenced to death and determinate prison terms on multiple counts under section 1170. The court explained that pursuant to section 3000, subdivision (a)(1), the determinate terms must include a period of parole. Pursuant to section 1202.45, a parole revocation fine was required. The court distinguished Oganesyan, supra, 70 Cal.App.4th 1178, explaining it involved no determinate term of imprisonment under section 1170. (Brasure, supra, 42 Cal.4th at p. 1075.) The court reasoned that similar to Oganesyan, defendant was unlikely to serve any part of the parole period on his determinate sentence, but nevertheless, “such a period was included in his determinate sentence by law and carried with it, also by law, a suspended parole revocation restitution fine.” (Id. at p. 1075.)
Section 3000, subdivision (a)(1), states: “A sentence pursuant to [s]ection[s] 1168 or 1170 shall include a period of parole, unless waived, as provided in this section.” Section 1168 is the indeterminate sentencing law.
Here, the trial court sentenced Bohler to two indeterminate sentences: life without the possibility of parole on count 2, and life with the possibility of parole on count 1 to be served consecutively. The court also sentenced her to a consecutive five-year determinate term for the various enhancements. As to count 1, the court ordered Bohler to serve a minimum of seven years before being eligible for parole. (§ 3046, subd. (a)(1).) Therefore, under the count 1 sentence and the enhancements, Bohler was eligible for parole in 12 years. As in Brasure, Bohler is unlikely ever to serve any part of the parole period. Nevertheless, such a period was included in her sentence by law and carried with it a parole revocation restitution fine. Therefore, based on Brasure, we conclude the trial court properly imposed the parole revocation restitution fine pursuant to section 1202.45.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.