California Court of Appeals, First District, Second Division
Superior Court of Solano County, No. VCR210260, Peter B.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Soglin and Tara Mulay, under appointments by the Court of
Appeal, for Defendant and Appellant.
D. Harris, Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Gerald A. Engler, Assistant
Attorney General, Jeffrey M. Laurence and Aileen Bunney,
Deputy Attorneys General, for Plaintiff and Respondent.
by Miller, J., with Richman, Acting P. J., and Stewart, J.,
Cal.Rptr.3d 873] MILLER, J.
Defendant Adam Wade Disa admitted to police that he killed
his girlfriend by putting her in a chokehold, but denied he
meant to kill her. A jury found him guilty of first degree
murder (Pen. Code, § 187).
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
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 [204 Cal.Rptr.3d
874] evidence of defendant's past conduct affected the
verdict. Accordingly, we reverse the first degree murder
conviction. We need not reach defendant's remaining
AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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 chokehold.
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,
§ 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)).
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.
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. Defendant suspected
Gillihan was cheating on him with Procaccio, but she denied
it. He mentioned an incident involving Procaccio that
occurred three [204 Cal.Rptr.3d 875] 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."
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.
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
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.
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."
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
Cal.Rptr.3d 876] 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 chokehold " 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.
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
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 chokehold, 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 chokehold for more
than a minute could eventually cause death.
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. 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.
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,"  and he did not notify anyone else
because, he thought, " it's over for me ... ."
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."  However, he did not talk about the
money with anyone, and he left no note.
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 [204 Cal.Rptr.3d 877] the previous three weeks
about his ...