People v. Gann CA4/1 ( 2021 )

Filed 9/22/21 P. v. Gann CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077769
Plaintiff and Respondent,
v. (Super. Ct. No. SCD207862)
NATHANIEL MARCUS GANN,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County,
Frederick L. Link, Judge. Reversed and Remanded.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers, Kristen Chenelia and Christopher P. Beesley, Deputy Attorneys
General for Plaintiff and Respondent.
INTRODUCTION
In April 2009, a jury convicted Nathaniel Marcus Gann of first degree
murder in the shooting death of his stepfather but found he did not
intentionally and personally discharge a firearm in the commission of the
murder or commit the murder with the special circumstance of lying in wait.
He was sentenced to a term of 25 years to life.
In January 2020, one year after Penal Code1 section 1170.95 became
effective, Gann filed two petitions for resentencing and requested the
appointment of counsel. Both times, and without first appointing counsel,
the trial court found Gann failed to make a prima facie showing that he was
eligible for relief and denied the petitions. Gann timely appealed both orders,
asserting the court erred by summarily denying the petitions without
appointing counsel and giving the parties the opportunity to file additional
briefing.
While his appeal was pending, the California Supreme Court decided
People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and held that section 1170.95
requires the trial court to appoint counsel “upon the filing of a facially
sufficient petition” and before determining whether the petitioner has made a
prima facie showing of eligibility.2 (Id. at p. 970.) We agree with the
People’s concession that, in light of Lewis, the court’s failure to appoint
counsel for Gann was error. We disagree, however, with the People’s
contention that the error was harmless. Accordingly, we reverse the orders
1 All further statutory references are to the Penal Code.
2 After Lewis was decided, at this court’s request, the parties submitted
supplemental briefing on whether the trial court’s failure to appoint counsel
for Gann before denying his petitions was prejudicial.
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and remand the matter to the trial court with instructions to appoint counsel
for Gann and allow the parties to provide additional briefing on the petition
consistent with section 1170.95.
FACTUAL AND PROCEDURAL BACKGROUND
Gann and his sister, Brae Hansen, were convicted of the murder of
their stepfather, Timothy MacNeil, by separate juries in a joint trial.3 At the
time of the murder, Hansen was living with MacNeil in San Diego, while
Gann was attending college in Arizona. Gann and Hansen’s mother had died
the year before and MacNeil had started a new relationship. MacNeil told
Hansen she needed to prepare to move out when she turned 18. This angered
Hansen, and she and Gann plotted to kill MacNeil. They initially planned to
hire a hitman to stage a home invasion robbery, but were unable to find one
to hire.
Hansen claimed she no longer wanted to go through with the murder
when the hitman plan fell through, but Gann came to MacNeil’s house early
one morning and told Hansen they were going to proceed with a modified
version of the plan whether she wanted to or not. MacNeil was not home
when Gann arrived, but returned later that day and was confronted by Gann
dressed in black and wearing a mask. Hansen claimed she walked
downstairs moments later and saw Gann pointing a gun at MacNeil. Gann
zip-tied Hansen’s hands and took her into another room. She heard a
struggle followed by several gunshots. MacNeil was shot in the back of the
head and died instantly.
3 The relevant facts of the murder are summarized from this court’s
opinion affirming the judgment of conviction in Gann’s direct appeal, People
v. Nathaniel Marcus Gann (2011) 193 Cal.App.4th 994.
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Gann’s cellmate testified at trial that Gann told him that he and
Hansen decided to “ ‘take care of’ ” MacNeil. Gann told his cellmate that he
wore a mask and “ ‘acted like it was a robbery.’ ” Gann tied up Hansen and
MacNeil, but MacNeil managed to get free. As Gann was tying up MacNeil
again, he accidentally fired the gun and hit MacNeil. Gann then shot him in
the head and fled the scene. Gann presented a defense that suggested
Hansen was the actual killer.
Hansen's jury convicted her of first degree murder and found true the
allegations that she committed the murder with the special circumstance of
lying in wait and while vicariously armed with a firearm. Gann’s jury also
convicted him of first degree murder, but found the allegations that Gann
committed the murder while lying in wait or that he intentionally and
personally discharged a firearm in the commission of the murder to be not
true. The trial court sentenced Gann to a prison term of 25 years to life.
In January 2020, Gann filed a petition for resentencing pursuant to
section 1170.95. He averred that he was convicted of first degree murder
pursuant to the felony murder rule or the natural and probable consequences
doctrine and that he could not now be convicted of first degree murder
because of the legislative changes to sections 188 and 189 made effective
January 1, 2019. He further stated that he was not the actual shooter, was
acquitted of that allegation by a jury, and the evidence demonstrated that the
murder took place in a manner of surprise or he was not present and was
determined to be liable in another unknown way. Gann requested the
appointment of counsel to represent him on his petition.
On July 13, 2020, the trial court, without appointing counsel for Gann,
found that Gann failed to make a prima facie showing that he was entitled to
relief because he “was the actual shooter and planned the crime” and denied
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the petition. Approximately one week later, on July 20, 2020, Gann filed
another petition for resentencing, in which he again stated the jury’s finding
on the gun enhancement indicated he was not the actual shooter, and again
requested the appointment of counsel. On August 19, 2020, the trial court
again, without appointing counsel, found that Gann failed to make a prima
facie showing that he was entitled to relief “[b]ased on [the] facts of the case”
and denied the petition. Gann timely appealed both orders denying his
petition for resentencing.
DISCUSSION
Gann’s primary contention on appeal is the trial court prejudicially
erred by summarily denying his petitions without appointing him counsel
and permitting additional briefing. We agree.
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In
addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for
convicted murderers who could not be convicted under the law as amended to
retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
A person convicted of felony murder or murder under a natural and
probable consequences theory may file a petition for resentencing under
section 1170.95 if: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable consequences
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doctrine[;] [¶] (2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder[;] [¶]
[and] (3) The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subds. (a)(1)–(3).) The petition must include a declaration
stating the petitioner is eligible for relief “based on all the requirements of
subdivision (a),” and whether the petitioner requests the appointment of
counsel. (§ 1170.95, subd. (b)(1).)
Pursuant to section 1170.95, subdivision (c), “[t]he court shall review
the petition and determine if the petitioner has made a prima facie showing
that the petitioner falls within the provisions of this section. If the petitioner
has requested counsel, the court shall appoint counsel to represent the
petitioner.” (Italics added.) The parties then proceed with additional briefing
and, “[i]f the petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause” (§ 1170.95, subd. (c))
and “hold a hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any remaining
counts” (id., subd. (d)(1)).
Previously, some courts interpreted section 1170.95, subdivision (c), “to
require two distinct, sequential inquiries,” with the trial court being required
to appoint counsel only once it determined the petitioner was not ineligible
for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 961; see People v.
Verdugo (2020) 44 Cal.App.5th 320, 327.) While Gann’s appeal was pending,
the California Supreme Court decided Lewis and expressly rejected that
interpretation. It clarified that “subdivision (c) does not establish an
internal, threshold barrier to the appointment of counsel and the opportunity
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for briefing.” (Lewis, at p. 967.) Instead, “petitioners who file a complying
petition requesting counsel are to receive counsel upon the filing of a
compliant petition.” (Id. at p. 963, italics added.)
Here, there is no dispute Gann filed a facially sufficient petition. In
light of Lewis, the People concede the trial court erred by failing to appoint
counsel for Gann but argue the error was harmless. We agree with the
People’s concession and conclude the trial court erred by denying Gann’s
petition at the prima facie stage without appointing counsel and permitting
additional briefing. We disagree, however, with the People’s contention that
the error was harmless.
Our high court in Lewis addressed the standard for prejudice and held
the failure to appoint counsel is one of purely state law, subject to the
harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818.
(Lewis, supra, 11 Cal.5th at pp. 957–958.) “More specifically, a petitioner
‘whose petition is denied before an order to show cause issues has the burden
of showing “it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.” ’ ” (Id. at p. 974.)
The People assert Gann’s petitions would have been summarily denied
even with the assistance of counsel because Gann is ineligible for relief as a
matter of law. They argue the jury was not instructed on felony murder or
natural and probable consequences theories of liability and, instead, the court
confined the possible theories of first degree murder to willful, deliberate, and
premeditated murder and lying-in-wait murder. We are not persuaded.
The People are correct that the first degree murder instruction given to
the jury stated: “The defendant has been prosecuted for first degree murder
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under two theories: (l) that the murder was willful, deliberate, and
premeditated, and (2) that the murder was committed by lying in wait.”
However, the jury also received instructions regarding evidence of an
uncharged conspiracy which stated the People contended Gann and Hansen
conspired to commit murder and that Gann could be found guilty of murder
under a conspiracy theory. The jury was further instructed that: “A member
of a conspiracy is also criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that act is a
natural and probable consequence of the common plan or design of the
conspiracy. This rule applies even if the act was not intended as part of the
original plan. Under this rule, a defendant who is a member of the
conspiracy does not need to be present at the time of the act.” (Italics added.)
The jury found Gann guilty of first degree murder, but found the lying-
in-wait special circumstance allegation not true, leaving only the “willful,
deliberate, and premeditated” theory from the first degree murder
instruction. As Gann pointed out in his petitions for resentencing, the jury
also found the allegation that he intentionally and personally discharged a
firearm in the commission of the murder to be not true. That finding is
consistent with a conclusion that the jury did not believe Gann was the
actual shooter—contrary to the trial court’s findings on at least the first
petition.
In light of the jury’s “not true” finding regarding Gann’s personal use of
a firearm, and its determination that he did not kill MacNeil by means of
lying in wait, it is not entirely clear what theory the jury relied upon to find
Gann guilty of first degree murder. Instead, it is at least conceivable that the
jury convicted Gann based on an act undertaken by his alleged coconspirator,
Hansen, that was the natural and probable consequences of the original
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conspiracy. For example, the jury could have concluded Gann originally
agreed and intended to commit the murder by hiring a hitman, that Hansen
then committed the murder on her own once the hitman plan fell apart, and
that Hansen’s act was a natural and probable consequence of the original
common plan or design.4 Liability for first degree murder under a conspiracy
theory is analogous to that of an aider and abettor, and an aider and abettor
can no longer be convicted of first degree murder under a natural and
probable consequences theory. (Lewis, supra, 11 Cal.5th at pp. 958–959, fn.
3; People v. Gentile (2020) 10 Cal.5th 830, 848−849; People v. Rivera (2015)
234 Cal.App.4th 1350, 1356.)
The People argue the only conspiracy on which the jury was instructed
was the conspiracy to commit murder, and that conspiracy to commit murder
requires specific intent to kill. While we agree that a defendant must have
the specific intent to kill to be convicted of conspiracy to commit murder, the
cases the People rely upon each address a charged conspiracy. (See People v.
Garton (2018) 4 Cal.5th 485, 515–516 (Garton); People v. Juarez (2016) 62
Cal.4th 1164, 1167.) Here, Gann was not charged with or convicted of a
conspiracy to commit murder. As a result, the record does not include
findings by the jury specific to the alleged conspiracy and it is not clear that
the jury, as instructed, in this case understood a conviction for first degree
murder based on a conspiracy theory required that Gann had the specific
intent to kill MacNeil. Whether there was a viable theory under which the
jury could have convicted Gann, without determining he had such specific
4 To be clear, we offer no opinion on whether this is an appropriate way
to reconcile the evidence, the instructions, and the verdict, but simply
conclude that Gann is entitled to the assistance of counsel in presenting his
interpretation of an arguably confusing trial record to the superior court
judge who reviews his petition.
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intent, requires a review of the evidence and, thus, should be resolved by the
trial court.
Further, in Garton, upon which the People rely, the California Supreme
Court concluded the jury was improperly instructed with a variant of CALJIC
No. 8.69 that “could potentially lead a jury to find an individual conspirator
guilty without finding that he or she possessed a specific intent to agree or to
kill,” but found the error harmless based on a special circumstance finding
that required intent to kill. (Garton, supra, 4 Cal.5th at pp. 516–517.)
Similarly, here, it is at least conceivable the instructions given permitted the
jury to reach a verdict without concluding Gann had the specific intent to
commit, or to conspire to commit, the actual murder. Here, however, there
was no conviction on conspiracy to commit murder for Gann to address in his
direct appeal, and there was no special circumstance finding to clarify the
verdict.
Considering the full set of instructions given to the jury and the
complex nature of the underlying legal theories of liability, we conclude there
is at least a reasonable probability that Gann’s petition would not have been
denied prior to the issuance of an order to show cause had Gann been
afforded legal counsel. In reaching that conclusion, we express no opinion as
to whether the petition should ultimately be granted and, instead, simply
determine there is sufficient basis to find there is a reasonable probability an
evidentiary hearing may be warranted such that Gann is entitled to counsel
on the petition in accordance with the California Supreme Court’s holding in
Lewis. Accordingly, we reverse and remand the matter to the trial court with
instructions for the court to appoint counsel for Gann and permit additional
briefing in accordance with section 1170.95, subdivision (c).
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DISPOSITION
The orders denying Gann’s petition for resentencing are reversed. The
matter is remanded to the trial court with instructions to appoint counsel and
allow briefing on the most recent petition.
DO, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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