People v. Disa

         Superior Court of Solano County, Super. Ct. No. VCR210260, Hon. Peter B. Foor, Judge

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         COUNSEL

         Jonathan Soglin and Tara Mulay, under appointments by the Court of Appeal, for Defendant and Appellant.

         Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Jeffrey M. Laurence Supervising Deputy Attorney General Aileen Bunney Deputy Attorney General, for Plaintiff and Respondent.

         OPINION

         Miller, J.

         Defendant Adam Wade Disa admitted to police that he killed his girlfriend by putting her in a choke hold, but denied he meant to kill her. A jury found him guilty of first degree murder (Pen. Code, § 187).

         Defendant contends there was insufficient evidence of premeditation and deliberation, and the trial court erred in admitting evidence of defendant’s prior act of domestic violence. We conclude the evidence of premeditation and deliberation-though far from compelling-was sufficient to sustain the first degree murder conviction. Absent error, we would affirm. However, we conclude that it was error to allow the jury to hear extensive evidence of

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defendant’s past act of domestic violence, which involved planning, hours of waiting, and a bloody knife attack on sleeping victims. Given the relative weakness of the evidence of premeditation and deliberation in the current case, we conclude there is a reasonable probability the improper admission of such vivid and inflammatory evidence of defendant’s past conduct affected the verdict. Accordingly, we reverse the first degree murder conviction. We need not reach defendant’s remaining arguments.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant and the victim, Katie Gillihan, worked together at Rasputin Music and began dating in late 2009 or early 2010. In September 2010, defendant moved in with Gillihan in her apartment in Benicia.

         Michelle Gonzales also worked at Rasputin and knew defendant and Gillihan. Shortly before 2:00 p.m. on Friday, February 11, 2011, Gonzales went to check on Gillihan because both defendant and Gillihan had missed two scheduled work shifts in a row. Gonzales found the front door of Gillihan’s apartment unlocked and Gillihan in bed, “like she was just sleeping.” Gonzales tried to wake her. Gillihan appeared very still and straight with the sheets pulled up to her chin. There was dried blood under her nose.

         Gillihan’s mother, Donna Gillihan (Donna), also arrived at Gillihan’s apartment around this time. Gonzales told Donna she could not wake Gillihan up. Donna became very upset and instructed Gonzales to call 911.

         Paramedics arrived at the apartment, and Gillihan was pronounced dead at 2:25 p.m. Her skin had cooled to the temperature of the room, and there were signs of marbling, lividity, and late-stage rigor mortis, indications that she had been dead for many hours.^[1]

         Defendant was arrested the same day Gillihan’s body was discovered. In a videotaped interview with Detectives Rose and Rouse of the Benicia Police Department, he admitted he killed Gillihan using a choke hold.

         Defendant was charged with murder (Pen. Code, § 187, subd. (a); count 1) and corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 2). As to count 2, the district attorney alleged defendant personally inflicted great bodily injury under circumstances involving domestic violence. (Pen. Code, §

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12022.7, subd. (e).) As to both counts, it was alleged defendant had suffered two prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which were also serious felony convictions (Pen. Code, § 667, subd. (a)).

         Defendant’s Interview

         At trial, the prosecution played defendant’s videotaped interview for the jury. In the interview, which lasted about two hours, defendant told the officers Gillihan was his girlfriend and they lived together, but he initially acted as though he was unaware of her death. He claimed he did not know where she was because he had not been home.

         Defendant reported there were some trust issues in the relationship. He said, in the previous three weeks, Gillihan had spent her days off with a friend, Marty Procaccio.^[2] Defendant suspected Gillihan was cheating on him with Procaccio, but she denied it. He mentioned an incident involving Procaccio that occurred three weeks earlier. Defendant came home and found Procaccio there. Defendant told Gillihan he needed to be informed if there was going to be a man in the house, and Gillihan said Procaccio was just a friend. Asked by the detectives how he felt about this, defendant responded, “I was seeing green. Jealous. Um, suspicious, I guess but.”

         Defendant said Gillihan was sleeping when he left their apartment Thursday morning, February 10, and he had been staying with his mother since then “to prevent tension” because Gillihan “wants space.” Defendant texted Procaccio Thursday night and again that day. He asked Procaccio, who he knew lived in Santa Clara, to check on Gillihan in Benicia because Tuesday night she had been sick.^[3]

         About 30 or 40 minutes into the interview, Detective Rouse noted that defendant had not asked why he was being questioned by the police and told him, “I think it’s cause you know why you’re here.” At this point, defendant admitted he killed Gillihan. He said he went home Tuesday night, February 8, and Gillihan “was adamant about [defendant] leaving” the apartment, which

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left him “confused.” She “was texting somebody that whole night, ” and “she was angry because [defendant] was there.” Defendant did not leave the apartment, and instead took a shower and went to sleep.

         Defendant described what happened early Wednesday morning, February 9, as follows: “I think it was probably around 5:30 in the morning that um, she did, woken me up. And um, she was telling me you need to get out. You need to leave. And um, I was like why do I need to leave? And she was like so I can take, you know, in her words, a fucking shower. And um, I was like, well I’m not going anywhere. And then that’s when the insults started to happen. Like you’re fucking retarded um, what is it? Um, you’re fucking stupid. Um, what else? She was, it was just like it wasn’t Katie. Like I’m not used to Katie talking to me like that. And I guess she swung at me or something. Oh, before that she said what she was gonna do is she was gonna give herself a black eye and she was gonna tell everybody I like, you know, to have done it. And I mean it was just like one thing after another. It was just like what’s this coming from? And I guess she swung at me and I’m half asleep and after that it’s, all I remember is um, I guess I had her in a choke hold and um. To be honest, man I thought she was sleeping because while I went to um, you know, she was laying there and then um, I went to work. I came back that same night and she, I guess she wasn’t sleeping.”

         Defendant further stated that he and Gillihan had an argument Tuesday night and again Wednesday morning. She woke him up between 5:30 and 6:00 a.m. Wednesday by turning up the television and holding her phone to his face while “it flashe[d]” or was “buzzing.” After Gillihan told him she would give herself a black eye and tell everybody he did it, defendant asked why she would do something like that. Defendant told the officers, “I don’t really remember the explanation because after that, it’s just-we had the-the incident.” He recalled that Gillihan said something like “ ‘You sicken me.’ ”

         Defendant continued, “I just remember seeing rings going towards my face. And I must have blocked it. And after I blocked it, that’s when the choke hold came.” He held her in a choke hold “for about a minute or so. Maybe a little bit longer.” She was trying to scratch his face, and he said, “I just held on until she-she-stopped trying to, you know, induce any pain towards me. And then I let go.” Defendant said he felt Gillihan’s body go limp, and then he kept her in the hold “[m]aybe 15 seconds” after she stopped moving.

         Defendant described how he was feeling: “I was angry prior to the incident when she was, you know, saying all these bad things. That’s what made me angry. But afterwards, it was-I didn’t really feel anything afterwards.... I remember looking at her and then I got the cigarettes.... I just felt a little

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relieved, I guess. Just like everything’s pretty much, you know, when the fight’s over, you know, it’s like I’m calming down, relaxing, I guess.” His “main emotion when she was throwing insults at [him]... was anger.” It was “still anger” when he had her in the choke hold, but defendant denied that he intended to kill her. He told the officers he thought he could “knock her out” or “put her to sleep.” However, he knew keeping a person in a choke hold for more than a minute could eventually cause death.

         Defendant called the hold he used on Gillihan a “figure four or something” and demonstrated the hold. Detective Rose recognized the hold defendant demonstrated was a “carotid restraint hold.” Defendant had been studying kung fu for over a year, but he did not learn the hold in kung fu class.^[4] He stated, “Actually I learned this choke hold from a[n] ex of mine. She put me in it.” He had “never really used it” himself, but when he was in it, “it was pretty bad.” Defendant reported that he and Gillihan had never had any physical confrontation before that day.

         After he released her from the hold, defendant laid Gillihan down. Then he went into another room, smoked a couple of cigarettes, and went to sleep. Later Wednesday morning, he got up, ate some jambalaya that was on the stove from the night before, and went to work without checking on her. After work, he went to kung fu class, and returned home around 9:00 p.m. According to defendant, he only then realized Gillihan was dead when he saw her lying in the same position he had left her. He did not call the police because he was “on probation, ”^[5] and he did not notify anyone else because, he thought, “it’s over for me....”

         Thursday, February 10, defendant packed food and clothes in a bag and went to his sister’s house. He stated, “And then uh, pretty much, you know, [I] came to terms with it’s probably time to say goodbye to everybody.” He took money from his bank account, which he said was “for my family.”^[6] However, he did not talk about the money with anyone, and he left no note.

         Defendant said he then tried to commit suicide by putting rat poison in his soda, but it just made him vomit. He also went to a bridge and thought he would jump “to give [himself] a watery grave.” He told the officers he had been feeling depressed for the previous three weeks about his relationship with Gillihan, and he told her that he was thinking of committing suicide.

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         Other ...