California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Orange County No. 11CF1199, Francisco P. Briseño, Judge.
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Law Offices of Alan Fenster, Alan Fenster and Ryan M. Ahern, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Brendon W. Marshall and Kathleen Radez, Deputy Attorneys General, for Plaintiff and Respondent.
RYLAARSDAM, ACTING P. J.
A jury found defendant Annamaria Magno Gana guilty of the first degree murder of her husband Antonio Potenciano Gana, and the willful, deliberate, and premeditated attempted murders of her two sons, Tony Gana and Alfonso Gana. In addition, the jury found defendant committed the murder while lying in wait and that she personally discharged a firearm in committing the murder and one of the attempted murders. The trial court denied defendant’s new trial motion, but granted the prosecution’s request to reduce her conviction on count 1 to second degree murder and to strike the lying in wait finding for sentencing. It then imposed a 40-year-to-life prison term for the murder and lesser, concurrent terms for each of the attempted murders.
Defendant appeals, contending the trial court committed reversible error in denying her requests to instruct the jury on misdemeanor manslaughter and unconsciousness, its failure to modify an instruction on evidence regarding
mental disease or defect, plus its exclusion of testimony by a physician who treated her after the shootings. In addition, defendant argues her trial attorneys failed to provide her with effective assistance. Since we find no prejudicial error, the judgment is affirmed.
One afternoon in May 2011, defendant shot and killed her husband and chased after her fleeing sons, shooting at and striking her eldest son while the younger child hid. Defendant then attempted to shoot herself in the head, but the bullet merely grazed her neck.
At trial, Tony Gana described the shooting as follows: “I hear[d] this loud noise.... Alfonso yells that it was a gunshot. And then my Dad gets up, runs to the [bed]room, Alfonso and I right behind him[.]... I stop at the doorway, my Dad rushes in, and I see my Mom holding a gun[.]... [T]hen [my Dad] tries to grab the gun from her. I see him get shot, and Alfonso and I run away. I reached the kitchen, but then I stopped, because I didn’t believe that it was real[.]... I turn around, I see Alfonso hiding behind one of the couches, and then I see my mother chasing after me with a gun. I yell at her don’t shoot, then she shoots me, and I fall to the ground[.]... I hear another gunshot, I thought it was for me, but it wasn’t[.] [T]hen I see Alfonso taking away the gun from my Mom, and that’s when I run out and called 911.” He described defendant as “look[ing] possessed.... [H]er eyes were wide open, they looked bigger than normal. No emotion on her face.”
Alfonso Gana testified that after defendant shot and wounded his brother, he saw her point the gun at her head and fire it. She then started crying and saying, “‘Whatwhat did I do.’” Alfonso picked up the gun from the floor and left to find his brother.
Responding law enforcement officers found defendant in the master bedroom holding her husband and crying. Antonio Gana was bleeding from a bullet wound on his chest. He was transported to a hospital, but later died. There was no soot, stippling or gunpowder residue found on Antonio Gana’s body, indicating he was more than two feet from the end of the gun’s barrel when defendant shot him. The prosecution presented evidence that the revolver defendant used required the hammer to be cocked before a trigger pull would cause the gun to discharge.
A deputy sheriff testified that when he approached defendant, she was silent and had her eyes closed. He nudged her and she opened her eyes, “star[ing] straight ahead” with what he described as “a thousand mile stare.” He asked defendant “‘who shot, ’” and she responded, “‘I did, I did, please kill me.’”
Defendant did not respond when paramedics asked her a series of standard questions, but merely opened her eyes and stared. They transported her to a hospital with an assessment of having “an altered level of consciousness.”
At the hospital a tube was inserted into defendant’s mouth to assist her breathing. A deputy sheriff guarding defendant testified that when she awoke the next morning, she removed the tube from her mouth and began making statements that she wanted to die. Defendant repeated these statements to attending nurses and a doctor, explaining she had killed her husband and shot her children.
While still at the hospital, defendant was questioned by sheriff’s investigators. The interrogation was audiotaped and the recording played at trial.
After being advised of her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), defendant told the investigators that in late 2010, she had been diagnosed with breast cancer. At the time of the shooting she was receiving chemotherapy and also taking Ambien to help her sleep. In addition, she was under stress from the financial problems of operating a business that was not doing well. She and her husband were attempting to sell the business, but she was concerned the sale would not occur. Defendant claimed to be overwhelmed with everything that needed to be done.
For weeks before the shooting, she claimed to have had suicidal thoughts and developed a plan to kill her husband and children before taking her own life. Defendant told the investigators she heard a voice in her head telling her that she needed to carry out her scheme. The morning of the shooting she loaded the gun. Some friends visited their home that afternoon. After the friends left, defendant went to the bedroom, retrieved the gun, and fired a shot into the ceiling. She recocked the weapon and when her husband entered the bedroom, she aimed at his heart and shot him. She then ran after her sons and shot her older son. Defendant also thought she shot at her younger son before turning the gun on herself. She recalled Alfonso grabbing the gun as it discharged. When the police arrived, defendant acknowledged telling them she wanted to die.
The defense called medical experts to testify about defendant’s physical and mental condition before the shooting. The oncologist treating defendant testified that she had been diagnosed with an aggressive form of breast cancer. After undergoing a double mastectomy, defendant was placed on a chemotherapy regimen that involved four separate drugs. The drugs can cause patients to suffer memory loss, fatigue, difficulty remaining focused, as well as exhaustion. Because defendant developed a rash caused by the cancer
medications, she was also given steroids that had side effects, including psychosis, mood disorder, and insomnia. The Ambien prescribed for her insomnia also had the potential to cause psychosis in rare circumstances. However, the oncologist’s notes indicated that while defendant complained of loss of appetite, fatigue, a skin rash, and losing her hair in addition to insomnia, she did not mention suffering from depression, mood changes, or psychosis.
Dr. Michael Tramell, a psychiatrist who interviewed defendant, expressed the opinion that defendant was suffering from a psychotic depression on the day of the shooting. He claimed this condition resulted from a “combination of factors, including both her depression as well as the medications she was taking. It appears she was experiencing a delirium, which is a kind of fluctuating level of consciousness, due to medical illness that caused her to... have worsening symptoms of depression and worsening psychoses.”
The defense also called Dr. Kevin Booker, a psychologist. He said defendant was “suffering from... a clinically significant... major depression” when he interviewed her. Booker concluded that at the time of the shooting, defendant’s “‘thoughts/beliefs and actions [were] related to a severe mental state-specific psychiatric condition and not to asocial psychopathological character traits.’”
Defendant testified in her own defense. She claimed that she began feeling depressed during the second cycle of her chemotherapy. When she developed a rash from the medications, she found it difficult to sleep. The oncologist prescribed Ambien to help her sleep and some medication for her rash. Defendant also lost her appetite. She felt weak, fatigued, and had difficulty reading.
On the day of the shooting, defendant claimed she was sad, depressed, tired, and did not feel normal. She recalled having breakfast with her family, the arrival of friends for a visit, and trying to handle business paperwork. Defendant went to her bedroom to get some sleep and to be alone. She testified she was “feeling helpless, feeling depressed, feeling like every single problem was a major problem.”
On direct examination, defendant said she recalled retrieving the gun, recognizing what it was, seeing bullets, and wanting to die. But she could not remember loading the weapon. Defendant also recalled hearing a gunshot, seeing her husband and children enter the bedroom, being in the living room with her elder child, and hearing her younger son call her name. But she did not remember aiming and firing the gun at any of them. Defendant claimed her next recollection was hugging her husband in the bedroom, then seeing people, being in an ambulance, and waking up in a hospital.
On cross-examination, the prosecutor asked defendant about an entry in Tramell’s report where she told him that “‘she began to plan how she might kill herself’” at lunchtime on the day of the shooting and loaded the weapon shortly thereafter. Defendant said she could not recall making this statement. The prosecutor also questioned her about Tramell’s claim she expressed the belief that her family “‘wouldn’t be able to live without [her], ’” and thus she “‘need[ed] to kill them so we can all die together and no one has to suffer.’” Again, defendant denied ...