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)

APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed as to Gann; affirmed, as modified, as to Hansen.
Doris S. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant Gann.
Athena Shudde, 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.
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[1] section 190.2, subdivision (a)(15). 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 residence after taking an hour-long walk and went into the upstairs bathroom. Two minutes later, MacNeil arrived. Assuming that MacNeil had gone downstairs, Hansen did so as well. When Hansen got downstairs, she saw a masked man, dressed entirely in black, pointing a gun at MacNeil, whose hands were tied behind him with zip ties. MacNeil said that he had to go to the bathroom, and the man pointed the gun at Hansen and told her to take off MacNeil's pants. The masked man then zip-tied Hansen's hands and took her ring, watch and cell phone. He pushed Hansen against the wall near the laundry room. Hansen heard the man ask MacNeil for the combination to the safe, which MacNeil refused to give. Hansen heard a struggle and a gunshot. The man fired at least two more shots at MacNeil before running out the back door.
After the interview, Rivera drove Hansen to the residence of Hansen's uncle and aunt, Richard and Bonnie MacNeil. Rivera returned to Richard MacNeil's residence that evening and talked with Hansen again. This time, Hansen's rendition of the events included a significant deviation from her earlier accounts. Referring to the masked intruder, she said, "Nathan tied my hands." At that point, Rivera wrote "Nathan" in her notebook. Later, Rivera asked Hansen about her reference to the intruder as "Nathan." Hansen initially denied having said "Nathan." When Rivera pressed her on the issue, Hansen said that she remembered that MacNeil had addressed the intruder as "Nathan." After Hansen mentioned the name "Nathan," Rivera retrieved a tape recorder and recorded the rest of her conversation with Hansen. Rivera learned from Bonnie MacNeil that Hansen's older brother's name is Nathaniel.
Hansen told Richard and Bonnie MacNeil's daughter (the daughter) that a composite sketch of the intruder, which had been distributed by the media, was inaccurate. The daughter became suspicious because Hansen had previously maintained that she had not seen the intruder's face. On her own, the daughter telephoned the police and reported the discrepancy. After receiving this information from the daughter, police returned to Richard MacNeil's residence and arrested Hansen at 10:45 p.m.
At the police station, Hansen confessed that she and Gann had planned to kill MacNeil and to make it look like he had been killed during a home-invasion robbery. Gann was arrested early the following morning in Arizona.
Hansen rested without presenting evidence.
In Gann's defense case, he presented evidence that gloves used by MacNeil's assailant were never found, and that Gann's fingerprints were not found on the gun. A police detective demonstrated how a right-handed person typically would lay down the murder weapon. Another detective identified a photograph of Gann's truck. A defense investigator demonstrated that with a zip-tie binding her hands behind her back, she could easily make the binding tighter by herself. Both juries heard this evidence.
Hansen's jury was not present for the testimony of the remainder of Gann's witnesses. These included seven character witnesses who testified that Gann was a nonviolent person, that he had no animosity toward MacNeil, and that he had been physically abused by his mother. Gann also presented witnesses who testified that Hansen was frustrated by MacNeil, resented MacNeil's girlfriend, and had once considered poisoning her own mother.
In rebuttal, the prosecution presented the testimony of Gann's former girlfriend. In surrebuttal, Gann presented four witnesses to impeach the former girlfriend.
The parties stipulated that, among other things, the gun that killed MacNeil was once owned by Gann and Hansen's mother, and that the gun belonged to MacNeil at the time of his death. They also stipulated that Gann is left-handed and that Hansen is right-handed.
B. Procedural background
On January 18, 2008, the district attorney filed an information that charged Gann and Hansen with first degree murder and special circumstances.[8] Gann and Hansen both filed motions to sever their cases for trial. The severance motions were rendered moot on October 9, 2008, when the district attorney announced its intention to try the defendants separately. Also on that day, the court granted Hansen's pending motion for a continuance. This set the stage for Gann's first trial.
On November 5, 2008, jury selection in Gann's first trial began. After seven days of testimony, the jury began deliberating on November 18. On November 20, the jury announced that it was hopelessly deadlocked, and the trial court declared a mistrial.
On December 23, the trial court granted the prosecution's motion for rejoinder, which both Gann and Hansen opposed. The court ruled that the joint case would be tried to two different juries.
On March 16, 2009, jury selection for Hansen's jury began. The following day, a jury was selected and sworn to try the case.
On March 18, a jury was empaneled for Gann's trial. Trial commenced on
March 23.
On April 15, Gann's jury convicted him of first degree murder. The jury also found that the lying-in-wait special circumstance allegation and the personal use of a firearm allegation were not true.
On April 16, Hansen's jury convicted her of first degree murder and found that she had been vicariously armed. Hansen's jury also found true the lying-in-wait special circumstance.
On June 19, the trial court denied Gann's motion for a new trial and sentenced him to 25 years to life in prison. That same day, the trial court denied Hansen's motion for a new trial and sentenced her to life in prison without the possibility of parole. On its own motion, pursuant to section 1385, the court struck the allegation that Hansen had been vicariously armed.
Both Gann and Hansen filed timely notices of appeal.
III.
GANN'S APPEAL
A. Admission of Hansen's prearrest statements in Gann's trial
Gann contends that the trial court erred by allowing his jury to hear evidence of statements that Hansen made prior to her arrest, including the 911 call; the informal interview with Officer Forsey; and the two interviews with Detective Rivera. Specifically, Gann claims that Hansen's prearrest statements were not admissible under any hearsay exception, and that the admission of these statements denied him his Sixth Amendment right to confront a witness against him.
1. Hearsay exception
In her prearrest statements to the 911 operator and to police, Hansen claimed that a masked intruder had held her and MacNeil at gunpoint, and that the intruder had killed MacNeil after a struggle. The trial court found that Hansen's prearrest statements were admissible under the hearsay exception for statements of a coconspirator in furtherance of the conspiracy. (Evid. Code, § 1223.) The trial court's ruling was correct.[9]
Hearsay evidence is generally inadmissible. (Evid. Code, § 1200.) However, a hearsay statement is admissible against a party:
"[I]f (a) [t]he statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; [¶] (b) [t]he statement was made prior to or during the time that the party was participating in that conspiracy; and [¶] (c) [t]he evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b), or, in the court's discretion as to the order of proof, subject to the admission of such evidence." (Evid. Code, § 1223; see People v. Hardy (1992) 2 Cal.4th 86, 139 (Hardy).)

A conspiracy is an agreement between two or more persons, with specific intent, to achieve an unlawful objective, coupled with an overt act by one of the conspirators to further the conspiracy. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402.) The conspiracy itself need not be charged in order for Evidence Code section 1223's hearsay exception to apply to statements by coconspirators. (See People v. Jourdain (1980) 111 Cal.App.3d 396, 404; People v. Wallace (1970) 13 Cal.App.3d 608, 617-618.) Further, only prima facie evidence of a conspiracy is required to permit the trial court to admit evidence under Evidence Code section 1223; the conspiracy may be shown by circumstantial evidence and the agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute. (People v Herrera (2000) 83 Cal.App.4th 46, 58-64; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)
While a conspiracy is usually deemed to have ended when the substantive crime for which the coconspirators are being tried is either attained or defeated (Leach, supra, 15 Cal.3d at p. 431), it is for the trial court to determine precisely when the conspiracy has ended. (Id. at p. 432.) " 'A conspiracy is not necessarily a single event which unalterably takes place at a particular point in time when the participants reach a formal agreement; it may be flexible, occurring over a period of time and changing in response to changed circumstances.' [Citation.]" (People v. Vargas (2001) 91 Cal.App.4th 506, 553.) Further, there may be "a situation where a conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy." (People v. Saling (1972) 7 Cal.3d 844, 852.)

TO BE CONTINUED AS PART II….

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