People v. Gann

• Decision Date: 20 July 2011
• Docket Number: No. D055431.,D055431.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nathaniel Marcus GANN et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

193 Cal.App.4th 994

123 Cal.Rptr.3d 208

11 Cal. Daily Op. Serv. 3592

2011 Daily Journal D.A.R. 4329

The PEOPLE, Plaintiff and Respondent,

v.Nathaniel Marcus GANN et al., Defendants and Appellants.

No. D055431.

Court of Appeal, Fourth District, Division 1, California.

March 24, 2011.

Rehearing Denied Apr. 7, 2011.

Certified for Partial Publication.^*

Review Denied July 20, 2011.^**

Doris S. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant Gann.

Athena Shudde, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Hansen.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Christopher Pratt Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

AARON, J.

I.INTRODUCTION

In a joint trial with separate juries, brother and sister Nathaniel Marcus Gann and Brae F. Hansen were convicted of first degree murder in the shooting death of their stepfather. Gann's jury did not sustain a special circumstance allegation that he committed the murder by means of lying in wait within the meaning of Penal Code section 190.2, subdivision (a)(15)¹. Hansen's jury, however, made a true finding as to the lying-in-wait special circumstance. The trial court sentenced Gann to 25 years to life, and sentenced Hansen to life in prison without the possibility of parole.

In his appeal, Gann claims that the trial court erred in allowing his jury to hear evidence of statements that Hansen made to a 911 operator and to police officers prior to her arrest, and in admitting the rebuttal testimony of a former girlfriend of Gann who claimed that Gann had raped her when they were in high school. Gann argues that the cumulative prejudicial effect of these two evidentiary errors requires reversal. In addition, Gann claims that the trial court erroneously instructed his jury concerning Hansen's prearrest statements. Gann further contends that the trial court was biased against the defendants. Finally, Gann requests that this court review sealed psychiatric records of a prosecution witness to determine whether the trial court abused its discretion in refusing to release the records to Gann's counsel.

In her appeal, Hansen contends that the trial court erred by admitting her postarrest confession because, she claims, she confessed only after police promised her leniency, thereby rendering the confession involuntary. Hansen also contends that the trial court erred in allowing her jury to hear portions of Gann's defense case. Hansen further asserts that because she is ineligible for parole, it was error for the court to impose a parole revocation fine. ²

II.FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

In July 2007, Hansen, who was then 17 years old, lived with her stepfather, Timothy MacNeil (MacNeil), on Marraco Drive in the Rolando area of San Diego. Gann lived in Arizona and attended college there. Gann and Hansen's mother, to whom MacNeil had been married, had committed suicide the previous year. MacNeil had begun dating a woman a few months after the suicide. By July 2007, he was spending most of his time with this woman. Hansen thought that MacNeil was ignoring her, and she began to feel unloved and worthless. MacNeil had recently told Hansen that she needed to prepare to move out when she turned 18. These developments angered Hansen.

1. Events leading up to the crime

Hansen phoned her brother and they discussed killing MacNeil. They agreed on a plan to hire a hit man to kill MacNeil on MacNeil's birthday, July 18. Hansen would take MacNeil out for a birthday lunch, and the hit man would stage either a burglary or a home-invasion robbery and kill MacNeil when MacNeil and Hansen returned to MacNeil's residence after lunch.

Hansen withdrew money from two bank accounts to pay the hit man. She also retrieved a gun that had belonged to her late mother, and made a duplicate house key. Hansen put the cash, gun and key in a box and placed the box on the back porch for the hit man.

The initial plan had to be changed because Gann was unable to hire a hit man, and MacNeil decided to celebrate his birthday with his girlfriend rather than with Hansen. Hansen arranged to take MacNeil to lunch for his birthday on July 19—the day after MacNeil's birthday. After the hit man plan fell through, Gann decided to kill MacNeil himself. He purchased black clothing from a Goodwill store in Arizona and drove to San Diego. Gann parked his truck on a street that was uphill from MacNeil's residence.³

According to Hansen's confession, Gann arrived at MacNeil's residence at 4:30 a.m. on July 19 and entered the house, using the key that Hansen had left on the porch. Once Gann was in the house, he awakened Hansen and told her that they were going to proceed with their modified plan regardless of whether she wanted to or not. During her postarrest interview with police, Hansen claimed that after Gann was unable to procure a hit man, she decided that she did not want to go through with the murder plot.⁴

2. The murder of Timothy MacNeil

MacNeil, who had spent the previous night at his girlfriend's residence and then attended morning appointments, arrived at his residence at 12:15 p.m. on July 19 to pick up Hansen for their lunch. When MacNeil arrived at the residence, he called out his arrival to Hansen, who responded that she was in the bathroom. As was his habit, MacNeil went downstairs to check telephone messages in his home office. Before he reached his office, MacNeil was confronted in the downstairs game room by Gann, who was dressed completely in black and wearing a mask that had only eye slits. Within minutes, Hansen walked downstairs, where she saw Gann pointing a gun at MacNeil. The disguised Gann ordered her at gunpoint to tie MacNeil's hands with zip-ties. After Hansen complied, Gann tied her hands behind her back with zip-ties.

At one point, MacNeil asked to use the bathroom. Gann cut Hansen's zip-ties and told her to pull down MacNeil's pants. After Hansen complied, Gann retied Hansen's hands with zip-ties, took her to the laundry room area where he placed her facing the wall, and told her not to turn around. Hansen heard a struggle followed by a gunshot. The bullet entered the right side of MacNeil's body, just above the hip bone, causing him to fall down. The first gunshot was followed by three more: a shot that hit MacNeil in the face; a shot that grazed MacNeil's scalp, entered his shoulder and lodged just above the elbow; and a shot to the back of MacNeil's head, which killed him instantly.

According to Goodman's testimony, Gann related that Hansen had contacted him after MacNeil told her that she would have to move out of his house when she turned 18. Gann and Hansen decided to “take care of” MacNeil. They initially planned to hire a hit man to kill their stepfather, but the hit man who Gann contacted failed to show up. Goodman also testified that Gann purchased black clothing at a Goodwill store before driving to San Diego. When Gann arrived at MacNeil's house, Hansen was there, and they discussed their plans. When MacNeil arrived home, Gann put on a makeshift mask and “acted like it was a robbery.” Gann directed Hansen to tie up MacNeil; Gann then tied up Hansen. However, MacNeil was not tied up well and he managed to get free. When Gann went to tie MacNeil again, the gun accidentally fired, and the bullet hit MacNeil. MacNeil said, “Why are you killing me, Nathan?” and “Why are you doing this to me, Nathan?” Gann then began to shoot at MacNeil. After shooting MacNeil in the head, Gann fled the scene. Gann discarded the gun and the black clothing after he left the house, and drove back to Arizona.

Several neighbors told police that they saw a young man running away from the MacNeil house. A witness saw the young man run to a truck that was later identified as Gann's, and drive away. Another witness testified that he was 90 percent sure that it was Gann whom he had seen fleeing.

After Gann left, Hansen, who was still bound, called 911 to report a home-invasion robbery and the shooting of her stepfather. Hansen told the 911 operator that she and MacNeil had entered the house together and said that they had been confronted downstairs by an armed masked man who was dressed entirely in black. Hansen said that the robber had taken her watch and a ring. ⁵ Hansen told the operator that the robber had demanded the combination to the house safe, and that MacNeil had refused to reveal it. At that point, the robber shot MacNeil, killing him. Hansen made the 911 call at 12:30 p.m.

When police arrived, they found MacNeil lying face down on the floor in a pool of blood. He was naked from the waist down.⁶ Hansen was cowering in a corner on the other side of a pool table. Hansen's hands were bound behind her with a plastic zip-tie. Hansen was crying and complained that her wrists hurt because the zip-tie was too tight. Officer Colin Forsey took Hansen outside and removed the zip-tie.

Police found no signs of forced entry. On the back porch, police discovered a .347 caliber revolver at the top of stairs that led to the backyard. Police later found a black shirt in a five-foot-tall tree along the masked man's escape route.⁷

While Hansen was sitting in an ambulance at the scene, she told Officer Forsey that a masked man had surprised MacNeil in the downstairs game room and bound his hands. The masked man also bound her hands and took her ring and cell phone from her. The man then placed her in another room, returned to MacNeil in the game room, and demanded the combination to the safe. MacNeil refused to give the man the combination, and a struggle ensued. The struggled ended with gunshots.

Detective Maria Rivera drove Hansen to the police station, where she interviewed the 17–year–old who, at the time, police considered to be a victim. Hansen told Rivera that she returned to the Marraco Drive...