Metropolitan News-Enterprise


Wednesday, May 6, 2015


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C.A. Upholds Conviction of Orange County Woman Who Killed Husband on Mother’s Day 2011


By a MetNews Staff Writer


The Fourth District Court of Appeal yesterday affirmed the conviction and sentence of a woman who killer her husband and tried to kill their two sons on Mother’s Day 2011.

In a 2-1 decision, Div. Three agreed with attorneys for Annamaria Gana that Orange Superior Court Judge Francisco Briseno should have given a requested instruction on unconsciousness, but said the error was harmless.

Gana shot her husband, Antonio Gana, at their home near Tustin. Her sons testified at her trial that she fired into the ceiling, and when her husband ran into the room to see what had happened, she shot him in the chest, then chased the two boys, one of whom was hit.

She then turned the gun on herself, but the bullet merely grazed her neck.

Gana, who was struggling with cancer, told police she had planned for weeks to kill her family, then kill herself. Prosecutors said she was selfish, not wanting her family to continue living if she was to die.

She was taking receiving chemotherapy and taking sleep medication, and was under stress as well because the family business was doing poorly and she was afraid she and her husband would be unable to find a buyer for it.

‘Experiencing Delirium’

A defense psychiatrist said she was suffering from depression on the day of the shooting, and that her medications were part of the cause. Gana “was experiencing a delirium, which is a kind of fluctuating level of consciousness,” he testified.

Jurors found Gana guilty of first degree murder, with a lying-in-wait special circumstance, plus two counts of attempted murder. She avoided a life-without-parole sentence when Briseno granted a prosecution motion to dismiss the special-circumstance finding, and reduce the murder conviction to one of second-degree murder, and sentenced her to 40 years to life in prison.

The prosecutor told the OC Weekly that he made the motion in order to give her family the “minimal” hope that she might eventually be free.

Justice William Rylaarsdam, writing for the Court of Appeal, said there was sufficient evidence to support instructions on unconsciousness as a complete defense or as reducing the crime to one of involuntary manslaughter based on voluntary drug intoxication.

He cited Tony Gana’s testimony that his mother’s eyes were wide open and her face lacked emotion when she shot his father, and a deputy sheriff’s statement that she had a “thousand mile stare,” as well as the medical testimony.

Meaningful Defense

Gana, however, was able to present “a meaningful defense based on her medical condition,” the justice said, and although the jury was not told to consider whether the defendant was unconscious when the shootings occurred, it was instructed on the requisite mental state for conviction of the charged crimes, and the impact of mental disease or defect in determining whether she had specific intent to kill and whether she could be found to have been lying in wait.

The jury’s verdict, Rylaarsdam said, clearly indicated that it did not believe she had a diminished mental state that would mitigate her responsibility.

Justice Richard Aronson concurred, but Justice Eileen Moore argued in dissent that the lack of unconsciousness instructions was prejudicial.

She wrote:

“People generally think if an individual undertakes some action—walking, talking, shooting a gun, for example—that action can only be done by someone who is conscious.  Unconsciousness is generally thought of as meaning an individual is comatose or otherwise incapable of movement, but that is not what the law holds.  In fact, when the court and counsel discussed proposed jury instructions, the prosecutor argued there was no evidence of unconsciousness.  In doing so, he urged the fact that defendant opened her eyes when asked questions by a responding paramedic demonstrated she was conscious.  But as CALCRIM No. 626 states, one who is unconscious ‘may still be capable of physical movement but may not be aware of his or her actions or the nature of those actions.’”… Without informing the jury of this fact, the jurors would have no reason to conclude defendant was not conscious during any of her actions.  The conclusion is unavoidable that jurors would fall into the same misconception the prosecutor demonstrated; assuming any action on defendant’s part—including opening her eyes—means she was conscious.  Thus, the jury’s verdict cannot be said to have been the result of the jury’s rejection of an unconsciousness defense.”

The case is People v. Gana, G048644.


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