THE PEOPLE v. GILL

Filed 1/22/08

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

APPEAL from a judgment of the Superior Court of San Joaquin County, Cinda Fox, J. Affirmed.

Diane Berley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael Dolida, Deputy Attorney General, for Plaintiff and Respondent.

In January 2004, defendant Andrew Wright Gill and his wife T.G. were having marital problems. T.G. gave defendant until the end of the month to find a job and get help for his depression. On the morning of January 31, 2004, T.G. told defendant to leave the house. Defendant left but returned to break into the house and threaten, assault, sexually abuse and kidnap T.G.

A jury convicted defendant of 10 felonies: kidnapping to commit spousal rape, rape by a foreign object and forcible oral copulation (Pen. Code,  209, subd.(b)(1)^[1]-- count 1), spousal rape ( 262, subd. (a)(1) -- count 2), rape by a foreign object ( 289, subd. (a)(1) -- counts 3 & 4), forcible oral copulation ( 288a, subd. (c)(2) -- count 5), making criminal threats ( 422 -- count 6), attempted rape by a foreign object ( 664 & 289, subd. (a) -- count 7), infliction of corporal injury on a spouse ( 273.5, subd. (a) -- count 8), cutting a utility line ( 591 -- count 9) and residential burglary ( 459 -- count 10). The jury also found true four special allegations relating to the sex crimes ( 667.61, subds. (a) & (d)(2), (d)(4), (e)(1) & (e)(6) & 667.8, subd. (a).) The court sentenced defendant to an aggregate term of 64 years and eight months to life, including the upper term of eight years in count 3.

Defendant makes six arguments on appeal: 1) the court violated his constitutional rights by denying his motion to disqualify the district attorneys office; 2) the court erred in admitting the statements he made to police; 3) the court erred in admitting evidence of prior acts of domestic abuse against T.G.; 4) the court erred in rejecting his claim of prosecutorial misconduct; 5) the court erred in sentencing him to the upper term in count 3; and 6) the evidence was insufficient to support his conviction for residential burglary in count 10. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Mark Gantt had lived next door to the Gills for several years and saw them every day or so. On the morning of January 31, 2004, he met defendant for breakfast at Dennys restaurant around 9:00 a.m. Defendant was very agitated and told Gantt that T.G. would not let him back in the house. Gantt tried to calm defendant and advised him to stay away from the house to avoid causing more problems.

Gantt met defendant later that morning at Home Depot at T.G.s request. T.G. had given Gantt a suitcase, $50 and a note to deliver to defendant. The gist of the note was get a job, be accountable, and talk to me. Gantt collected a set of house keys from defendant and returned them to T.G.

Between noon and 1:00 p.m., Gantt observed that defendant had parked his car in front of the house. Gantt spoke with T.G. on the phone. She told himthat she was afraid of what defendant might do. Gantt went outside and spoke with defendant for 15 or 20 minutes. According to Gantt, defendant was very upset. Gantt spoke with defendant a second time an hour later, describing defendant as very, very upset.

At that point, Gantt advised T.G. to call the police and called the police himself. The police officers arrived around 4:00 p.m. and spoke with both defendant and T.G. T.G. asked for an emergency protective order, but the request was denied. The officers suggested to defendant and T.G. that one of them leave in order to avoid any further problems. Defendant responded that it was unfair for him to leave. He told the officers that he intended to wait in his car until T.G. allowed him back into the house.

Defendant telephoned his house around dinnertime in an attempt to resolve things with T.G., but she did not answer. Defendant left a message indicating that, there was going to be trouble if T.G. did not speak to him.

Gantt met with defendant in front of the house for a third time later that evening. He urged defendant to leave, but gave him a blanket in case he decided to stay. Defendant indicated that he planned to stay at a friends house. Gantt checked around 11:00 p.m. and defendants car was gone.

The Assault and Kidnap of T.G.

Just after 1:00 a.m., T.G. heard a loud bang on the front door.^[2] She ran to the room of her 10-year-old son D.G. to look out the front of the house. T.G. ran back to her bedroom and heard another loud crash that sounded like glass breaking. She tried to telephone Gantt but the line was dead.

A few seconds later, defendant walked into the bedroom, turned on the lights, and said, [S]urprise. T.G. testified that defendant was really angry, cursing and calling her a f---ing bitch. Defendant grabbed T.G. by the hair and slapped her across the mouth. He hit her again when she tried to get a Kleenex to wipe her bloody lip. Defendant pulled T.G. around the room by her hair and kicked her in the side when she fell to the ground. He dragged T.G. to a futon couch near the window and told her that she had made the biggest mistake of [her] life, and was going to pay tonight, and was going to die tonight.

T.G. testified that it was like defendant had snapped and it was not the first time it had happened. She could recall three incidents where he yelled and hit her.

Defendant dragged T.G. from the bedroom to the garage. Once there, defendant forced T.G. to lie face down on the floor and take off all of her clothes. He put a rag in T.G.s mouth and taped it in place by wrapping duct tape around her head. Defendant threatened to cut off T.G.s right arm with a chainsaw.

Defendant proceeded to sexually abuse T.G. in the garage. First, defendant put his fist up her vagina. He then inserted a flashlight in T.G.s vagina and tried to insert it in her anus. Next, defendant raped T.G. by inserting his penis in her vagina, but he stopped before ejaculating.

Defendant took T.G. back into the house and continued to threaten T.G., stating, Youre going to pay for what you did to me, and Youre dying tonight. Defendant asked T.G. if she wanted to say goodbye to anyone.

Defendant put T.G. in the backseat of the family car, face down, completely naked. He bound her feet together at the ankles and tied her feet to her wrists with rope. Defendant drove toward Sacramento.

Eventually, defendant reached back and removed the duct tape from T.G.s head and the gag from her mouth, tearing out pieces of hair in the process. As they got closer to a snowy area, defendant pulled off the road and got in the back seat with T.G. He forced her to orally copulate him. He ejaculated in T.G.s mouth and told her to swallow it. T.G. cooperated because she was scared to death for [her] life. At that point, defendant allowed T.G. to get dressed and join him in the front seat of the car. However, he tied her hands and feet together to prevent her from doing something stupid up front.

Now that T.G. was sitting upright in the seat, she saw that they were close to Lake Tahoe. It was after 5:00 a.m. As they drove toward Emerald Bay, defendant said, Im obviously going to have to end my life today. He told T.G. that she would have to give something up, like a finger or a hand, so that she would always remember what [she had done] to [defendant]. When they reached an area called Sugar Pine Camp, defendant parked the car and unsuccessfully tried to kill himself with a hunting bow.

Around daylight, defendant drove out of the campground to a small market. He left T.G. in the car while he bought a pack of disposable razors and a banana and bottle of water for T.G. Defendant told T.G. that he was going to take her home, but changed his mind and drove back to the campground. He said, I cant go home, Ill go to jail . . . theres a warrant for me, I cant wait for that.

Defendant and T.G. sat in the campground while defendant tried to kill himself with a disposable razor. He also placed a plastic bag over his head. These attempts at suicide also failed. According to T.G., defendant appeared to realize that he did not want to kill himself. He started toward home again and T.G. encouraged him. As they were driving, defendant cried and apologized to T.G. for causing her so much pain over the years.

Defendant Turns Himself In:

Back in Stockton, D.G., one of defendants and T.G.s sons, knocked at Gantts door between 7:30 and 8:00 a.m. He told Gantt that his mother was gone. Gantt and his adult son hurried to the Gill residence. Finding parts of the house in disarray, signs of forced entry, the family car missing, the outside telephone jack removed, and defendants car parked around the corner, Gantt and his son called the police.

Detective Robert Molthen questioned the children, D.G. and C.G., about what had happened the night before. D.G. told Molthen that he had heard a commotion or arguing in the middle of the night. During the interview with D.G., Molten also learned about a prior incident of abuse. D.G. told the detective that when he was five, he had seen defendant push T.G. onto a couch and throw things at her.

Defendant phoned home while Detective Molthen was at the Gill residence. Molthen told defendant to go to the nearest police station. Defendant allowed Molthen to speak with T.G. Molthen asked T.G. if she was okay and she responded, I dont think so. Molthen then asked T.G. if she was being held against her will, and she said, [N]o.

A few minutes later, defendant arrived at the police station in Jackson. Defendant was still talking with Detective Molthen on the cell phone when he told Jackson Police Officer Curt Campbell that the Stockton police were looking for him. Molthen talked with Campbell on defendants cell phone and told Campbell to detain defendant and T.G. Molthen, his partner Detective Eduardo Rodriguez, and two other officers headed for Jackson.

Meanwhile, Officer Campbell instructed defendant to sit on a bench outside the police station. Campbell noticed fresh and dried blood on defendants neck. When he asked defendant how the injury occurred, defendant did not respond. Campbell also spoke with T.G., who was sitting in the front passenger seat of the car. T.G. told Campbell that defendant cut his neck with the blade from a Bic razor. Campbell also noticed that T.G. had a bloody lip. T.G. told him that defendant had hit her. Campbell retrieved a plastic bag from the car that contained the razor blade and duct tape with brown hair attached to it. Paramedics arrived and began to treat defendants and T.G.s injuries. T.G. stated to the paramedics or Campbell that defendant had raped her.

After the Stockton police officers arrived in Jackson, Campbell gave the plastic bag to Detective Mark Reynolds. The bag contained a 12-foot length of rope in addition to the razor blade and duct tape. Reynolds and another officer transported defendant back to Stockton in their car. They did not question defendant during that trip.

T.G.s Pretrial Statements:

Detective Molthen interviewed T.G. for approximately 30 minutes in the back seat of his police car before they left Jackson. He and Detective Rodriguez continued to interview her during the drive from Jackson to the emergency room at San Joaquin County General Hospital in Stockton.

At the hospital, Rodriguez went through the Adult/Adolescent Sexual Assault Examination questionnaire with T.G., writing down her responses. At no time did T.G. indicate that she had consented to the sexual acts she listed on the form. Under the section marked assault history, T.G. indicated that she had been assaulted that day by defendant. In the section marked methods employed by assailants, T.G. indicated that defendant had: (1) used a flashlight as a weapon during the sexual assault; (2) threatened to kill her; (3) punched and kicked her; (4) grabbed, held, and pinched her; (5) physically restrained her with tape; and (6) caused her injuries including a fat lip, a bruised left arm, a bruised right knee, a bruised left eye and overall body pain. In the section of the form marked acts described by patient, T.G. responded that defendant had penetrated her vagina with his penis, his finger and a flashlight. She also stated that defendant had tried to penetrate her anus with the flashlight. T.G. responded that she had orally copulated defendant and he had ejaculated in her mouth.

Later in the evening, T.G. met for five hours with Susan Sixkiller, a victim advocate with the San Joaquin County District Attorneys Office. T.G. told Sixkiller that defendant had abducted her from the house the night before, thrown her into a car, and raped her. T.G. never stated or implied that the acts were committed with her consent. She also told Sixkiller that defendant had bound her with duct tape around her wrists, head and hair. T.G. described defendant as having a glazed-over, evil look in his eyes that she had never seen before.

Ten days after the incident, T.G. spoke with Deputy District Attorney Michael Mulvihill about the case. T.G. agreed to a taped interview although she was under no obligation to do so. T.G. told Mulvihill that defendant had started abusing her physically in March 1993, a month after they were married. At no time during the interview did T.G. tell Mulvihill that she had consented to any of the sexual acts that occurred on the morning of February 1, 2004.

Defendants Pretrial Statements:

After they returned from the hospital, Detectives Molthen and Rodriguez interviewed defendant at the police station. At the start of the interview, defendant told the detectives that they could ask him any question they wanted, but he was not going to be very forthcoming. He admitted that he flipped out when T.G. asked him to leave the house and that he did her wrong. However, defendant stated multiple times that it was unfair for her to kick him out of the house. Defendant indicated that he had wanted to resolve things with T.G. that night and couldnt handle it when she stopped answering the telephone.

Defendant stated that he would not talk about the specifics of what happened because he did not want to put it together for the police. Defendant told Molthen and Rodriguez that he left a really wide trail that night and admitted that he was one hundred percent wrong. He continued, [Y]ou guys got the story and anything I add to it is just going to screw me even more. Later, defendant added, The whole picture is there, you know it as well as I do.

The detectives continued to question defendant about specifics. When Rodriguez suggested that defendants silence about the details of what happened might cause people to think that he was trying to get away with his crimes, defendant responded that he would be happy to corroborate [T.G.s] deposition so that the kids [would not] have to participate. Defendant told Molthen and Rodriguez that [T.G.] [was] an honest person . . . and uh . . . she gives it straight up.

Eventually, defendant described details of the events of the night before. He told the detectives about: (1) parking his car down the street from the house so that T.G. and the neighbors would not know he was there; (2) borrowing a screwdriver from a friends house so that he could open the telephone box; (3) disconnecting the telephone and calling from a nearby pay phone to make sure the line was dead; (4) returning to the house and trying to break down the front door; (5) removing the screen and entering through a window on the side of the house; (6) screaming at T.G., saying this is what [you] get; (7) pushing T.G. around and hitting her in the bedroom; (8) dragging T.G. by her arm or hair into the garage; (9) tying her up; (10) forcing her to have sex and sticking the flashlight into her vagina; (11) threatening to cut off her body parts; (12) putting a gag in her mouth; (13) using the computer while T.G. lay face down on the carpet; (14) putting T.G. face down in the back seat of the car, hog-tying her, and driving away to get out of the county; and (15) having T.G. orally copulate him. At the end of the interview, defendant stated, Ive been honest with you, straight up. He was comfortable with the fact that he had corroborated T.G.s description of what had happened.

Defendants Testimony:

At trial defendant testified that he never forced T.G. to have sex against her will. He explained that he and T.G. had an agreement that [they] would try anything. According to defendant, they trusted each other not to hurt the other and if T.G. ever said uh-uh or stop, defendant would immediately stop what he was doing. Defendant testified that the sex acts that occurred on February 1, 2004, were the same sexual things that they had always done. He stated that he and T.G. often inserted objects into each other, took joy rides, had sex in different places, ripped clothes off each other, and had sex out in the warm sun. Defendant testified that they engaged in acts of bondage in the garage and the rope found in the Volvo was purchased for that purpose.

Defendant acknowledged that he was angry and yelled at T.G. when he found her trying to make a phone call from their bedroom early on the morning of February 1, 2004. He cried after striking her and they exchanged forgiveness. Defendant testified that while he and T.G. were talking, she started touching him in a sexual manner. According to defendant, they went to the garage to engage in a typical sexual game. Defendant stated that T.G. did a striptease for him, and consented to being gagged and tied up. He maintained that she consented to the subsequent sexual acts and to leaving the house with him for a joy ride.

When questioned about his statements to police, defendant testified that he just told [the detectives] what they wanted to hear because he was frustrated, tired, hungry, and just wanted it to be over. He denied coercing T.G. into testifying in a certain way.

T.G.s Testimony:

T.G. testified for the defense, stating that defendant did not force her to go anywhere with him, did not force her to have sex against her will, and did not threaten her in any way on February 1, 2004.

DISCUSSION

I.

Defendants Motion To Recuse The District Attorneys Office Was Properly Denied

Before trial, defendant moved to disqualify the entire San Joaquin County District Attorneys Office from prosecuting his case and to appoint the Attorney General to assume prosecutorial duties in its stead.^[3] Defendant argued that two deputy district attorneys -- Michael Mulvihill and Kristine Reed -- ha[d] taken a personal interest in the case and ha[d] made a concerted effort to influence the testimony of the alleged victim. Defendant maintained that after T.G. informed them that she consented to the acts charged, Mulvihill and Reed responded . . . by threatening her, demeaning defense counsel and making other inappropriate statements. Citing this conduct, defendant asserted that a conflict of interest existed which made it unlikely that [he would] receive a fair trial. The court denied the motion. On appeal, defendant contends that Deputy District Attorneys Mulvihill and Reed conducted a pretrial interview of [T.G.] in which she was misled as to what was in her best interests and that of her family, resulting in a conflict of interest that makes it unlikely that [defendant] received a fair trial. Thereis no merit in defendants contention.

A.T.G.s Pretrial Interview At The District Attorneys Office:

Defendants claim of conflict arises from Mulvihills and Reeds meeting with T.G. and her father at the district attorneys offices on February 10, 2004.^[4] Mulvihill testified that he spoke with T.G. informally before he and Reed conducted the recorded interview that the prosecution played for the jury at trial. Mulvihill stated at the start of the recorded interview, [W]e talked for about an hour with you and your dad downstairs, just about, not about the facts or anything right? We were just talking about general . . . . [] . . . [] [p]rocedures and whats going on in the case right now. Its my understanding that youre up here today of your own free will and you dont . . . you [sic] freely volunteering to talk to . . . us. Were not forcing you to, is that right? T.G. responded, Thats correct.

Defendant filed T.G.s handwritten notes about the informal meeting as an exhibit in support of his motion to disqualify. T.G.s notes read:

*I was advised not to speak with the public defender

*I was told public defender may show up at my door calling himself PD -- I need to be careful

*I was told the public defender will twist my words in court

*I was told I had norights as [defendants] wife to do anything regarding this case

*I was told that I had better hope that [defendant] takes the D.A.s first offer because they would just keep adding time if he did not

*I stated that I donot want our boys [D.G. and C.G.] to be put on the [witness] stand Mr. Mulvihill told me that if they had to, they would double [defendants] time

*I stated I didnot want the [criminal protective order]

Mulvihill also prepared a memorandum of his informal meeting with T.G. and her father on February 10, 2004, which differed from T.G.s account. Mulvihill indicated that he explained the criminal procedure process (arraignment, preliminary hearing, arraignment on the Information, pre-trial conference, readiness conference and trial). He also explained [their] offers and how they are arrived at and how they go up usually after each appearance. After T.G. stated she wanted to help defendant, Mulvihill spoke at length emphasizing that it was the District Attorneys Office, and not her, that filed charges against defendant, but they wanted to hear whatever she had to say.

Mulvihill testified that he told T.G. that she [had] the right to speak with and not speak with whoever [sic] she [wanted], and that his office was only interested in the truth. He told her that she could talk to the defense attorney or his investigator but did not have to talk with them. Mulvihill informed her they have different interests and in [his] experience often twist the statements of witnesses to suit their needs. However, Mulvihill assured T.G. that he would not hold it against her if she chose to speak with the defense team.

When T.G. asked that the criminal protective order be lifted, Mulvihill explained his opposition. He also informed T.G. that she could attend at the next court appearance and explain her position to the judge.

Story continues as Part II .

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, and VI.

^[1]Hereafter, undesignated statutory references are to the Penal Code.

^[2]T.G.s account of the events is taken from her trial testimony, her interview with police detectives on February 1, 2004, and her interview with the deputy district attorneys on February 10, 2004.

^[3]Defendant acknowledges that although he sought recusal of the entire San Joaquin County District Attorneys Office in his motion in the trial court, his argument on appeal focuses on the actions of the two deputies and compels the conclusion that they should have been recused from the case, requiring reversal.

^[4]Defendant also separately argues, after the fact, that the manner in which District Attorney Reed questioned him at trial revealed a deep personal bias against [defendant] that reinforced the fact that the trial court should have disqualified both her and Mulvihill prior to trial. We address this issue post.