Gana

Concurring and Dissenting. — I agree with most of the majority opinion. The majority found the trial court erred in failing to instruct the jury on the defense of unconsciousness as a result of defendant taking drugs to combat her cancer (chemotherapy) and to overcome the effects of chemotherapy. (Maj. opn., ante, at p. 609.) I concur in that decision. I respectfully dissent, however, from the conclusion that the error was harmless. I also would find the court prejudicially erred in failing to instruct on unconsciousness without reference to voluntary intoxication.

Defendant’s oncologist, Dr. Andreea Nanci, described defendant’s chemotherapy regimen. She pointed out one of the drugs in her treatment is known to cause potential neurotoxicity. Exactly how the drug causes the neurotoxicity is subject to ongoing research. One side effect of the chemotherapy treatment defendant received is known as “chemo brain.” A doctor testified “most chemotherapy agents can result in significant . . . incidence of . . . delirium, agitation, psychoses, [and] fluctuating levels of consciousness.” (Italics added.) When side effects occur, they last “at least several weeks, usually more, months, in…

A jury found defendant Annamaria Magno Gana guilty of the first degree murder of her husband, Antonio Potenciano Gana, and the willful, deliberate, and premeditated attempted murders of her two sons, Tony Gana and Alfonso Gana. In addition, the jury found defendant committed the murder while lying in wait and that she personally discharged a firearm in committing the murder and one of the attempted murders. The trial court denied defendant’s new trial motion, but granted the prosecution’s request to reduce her conviction on count 1 to second degree murder and to strike the lying-in-wait finding for sentencing. It then imposed a 40-year-to-life prison term for the murder and lesser, concurrent terms for each of the attempted murders.

Defendant appeals, contending the trial court committed reversible error in denying her requests to instruct the jury on misdemeanor manslaughter and unconsciousness, its failure to modify an instruction on evidence regarding *602 mental disease or defect, plus its exclusion of testimony by a physician who treated her after the shootings. In addition, defendant argues her trial attorneys failed to provide her with effective assistance. Since…

FACTS

One afternoon in May 2011, defendant shot and killed her husband and chased after her fleeing sons, shooting at and striking her eldest son while the younger child hid. Defendant then attempted to shoot herself in the head, but the bullet merely grazed her neck. At trial, Tony Gana described the shooting as follows: “I hear[d] this loud noise. . . . Alfonso yells that it was a gunshot. And then my Dad gets up, runs to the [bed]room, Alfonso and I right behind him[.] . . . I stop at the doorway, my Dad rushes in, and I see my Mom holding a gun[.] . . . [T]hen [my Dad] tries to grab the gun from her. I see him get shot, and Alfonso and I run away. I reached the kitchen, but then I

2 stopped, because I didn’t believe that it was real[.] . . . I turn around, I see Alfonso hiding behind one of the couches, and then I see my mother chasing after me with a gun. I yell at her don’t shoot, then she shoots me, and I fall to the ground[.] . . . I hear another gunshot, I thought it was for me, but it wasn’t[.] [T]hen I see Alfonso taking away the gun from my Mom, and that’s when I run out and called 911.” He described defendant as “look[ing] possessed. . . . [H]er eyes were wide open,…