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Slayer Not Wrongfully Denied Conjugal Visits, C.A. Holds
By a MetNews Staff Writer
The Fifth District Court of Appeal has affirmed the denial of a writ petition brought by a first-degree murderer who contests the denial by prison authorities of his request for overnight visits from his spouse, rejecting an enterprising argument that the regulation proscribing sleep-overs where an inmate had committed a violent crime against a family member does not apply.
News reports and court opinions had referred to the victim, 63-year-old San Diego criminal defense lawyer Timothy MacNeil, as the “stepfather” of defendants Nathaniel Marcus Gann and his sister, Brae F. Hansen. But in appealing from the writ denial by Madera Superior Court Judge Michael J. Jurkovich, Gann, acting in pro per, asserted that when he fatally shot MacNeil in 2007, MacNeil was no longer his stepfather.
Gann’s mother had committed suicide the year before the shooting. The inmate cited In re Marriage of Williams, decided in 1980 by Div. One of this district’s Court of Appeal, for the proposition that her death effected a dissolution of marriage.
Petitioning Spouse’s Death
In Williams, a woman was divorcing her husband; she was seeking child custody, as was the husband; she entered the hospital and became comatose; her mother and brother brought a motion to join in the dissolution of marriage action, seeking rights as to the children; the petitioning spouse died. Her mother and brother wanted the dissolution action to proceed as a vehicle for a determination of custody, and they appealed from the denial of their joinder motion.
Then-Los Angeles Superior Court Judge Norman Epstein, sitting on assignment, wrote the opinion affirming the denial of the motion. The jurist (later to become a Court of Appeal associate justice, then a presiding justice, and now retired) said:
“When one of the parties dies, dissolution occurs as a matter of law, and there is nothing left for a court to dissolve or annul. ‘The dissolution is final, irrevocable, nonmodifiable, and nonappealable.’”
Inapplicability of Regulations
Under that authority, Gann proclaimed, the rules that the prison authorities are relying upon do not come into play.
California Code of Regulations §3177 provides that “[f]amily visits are extended overnight visits, provided for eligible inmates and their immediate family members as defined in Section 3000,” and §3000 includes stepparents. Sec. 3177 also provides:
“Family visits shall not be permitted for inmates convicted of a violent offense where the victim is a… family member…, which includes but is not limited to the following Penal Code sections: 187 (when the victim is a family member as defined in Section 3000…).” Penal Code §187 is the murder statute.
Given that MacNeil was no longer his stepfather when the crime was committed, Gann maintained, the regulations do not serve to bar the conjugal visits he seeks.
Snauffer’s Opinion
Justice Mark W. Snauffer wrote the opinion rejecting Gann’s argument, saying:
“Whether the victim’s marriage to Gann’s mother dissolved prior to the crime at issue due to the mother’s death is not dispositive. Sections 3000 and 3177 do not require that the natural parent and stepparent both be living to apply the restriction. It was not unreasonable to apply the term ‘step-parent’ to the victim even though Gann’s mother passed away approximately one year prior to Gann’s murder of the victim.” Explaining in a footnote why Gann’s motion for appointment of counsel on appeal was denied, Snauffer said:
“A trial court has discretion to appoint counsel in a civil matter where an indigent prisoner is litigating to protect his or her personal or property rights….Assuming, without deciding, that an appellate court has similar discretion, we conclude Gann’s personal and property rights are unaffected by this litigation. Family visitation is a privilege, not a right.”
The case is Gann v. Acosta, 2022 S.O.S. 1151.
Defendants’ Sentences
Gann and his sister, Brae Hansen, were tried jointly but had separate juries; his jury rejected the special-circumstance allegation of lying in wait, while hers found it to be true. He was sentenced to 25 years in prison to life, while Hansen was initially sentenced to life in prison without possibility of parole.
However, she was 17 at the time the slaying took place—one of the factors causing her to hatch the plot, testimony showed, was that MacNeil had given her notice that when she turned 18, he would kick her out of his house in which she had been residing—and she was tried as an adult. In light of intervening U.S. Supreme Court case law relating to minors tried as adults, she was resentenced in 2015 to a term of 26 years to life.
Hansen’s parole eligibility date is July 2027 and Gann’s is January 2028.
Girl’s Slip-Up
The prosecutor in the case acknowledged in his summation to jurors that the defendants “almost pulled it off.” The glitch was a four-word slip-of-the-tongue by Hansen in talking with police.
The siblings staged a home-invasion robbery. When police arrived, MacNeil was dead, his wrists fastened behind his back with zip-ties, and Gann was likewise bound, though she had managed to place a 911 call.
She was initially regarded as a victim. However, suspicions arose when, in recounting an unknown masked intruder binding her, she said:
“Nathan tied my hands.”
Police determined that “Nathan” referred to her brother, Nathaniel, and, under questioning, she broke down and confessed.
It emerged that Hansen was jealous of time MacNeil was spending with his girlfriend rather than her. There was also the matter of her anticipated inheritance from MacNeil—15 percent of which she promised to her brother in return for committing the murder.
Copyright 2022, Metropolitan News Company