People v. Schulz

• Decision Date: 31 March 1992
• Docket Number: D013364,Nos. D013329,s. D013329
• Citation: 7 Cal.Rptr.2d 269,5 Cal.App.4th 563
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicholas Kenneth SCHULZ, Defendant and Appellant. In re Nicholas Kenneth SCHULZ, on Habeas Corpus.

Page 269

7 Cal.Rptr.2d 269

5 Cal.App.4th 563

The PEOPLE, Plaintiff and Respondent, v. Nicholas Kenneth SCHULZ, Defendant and Appellant In re Nicholas Kenneth SCHULZ, on Habeas Corpus.

Nos. D013329, D013364.

Court of Appeal, Fourth District, Division 1, California.

March 31, 1992.

Certified for Partial Publication. ^*

As Modified April 13, 1992.

Review Denied June 25, 1992.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Frederick R. Millar, Jr. and Janelle B. Davis, Supervising Deputies Atty. Gen., for plaintiff and respondent.

Handy Horiye, San Diego by appointment of the Court of Appeal, for defendant and appellant.

WORK, Associate Justice.

Nicholas Kenneth Schulz appeals separate judgments convicting him of attempted murder (PEN.CODE, §§ 187¹, 664), while personally using a firearm (§ 12022.5) and personally inflicting great bodily injury (§ 12022.7); possessing a flammable or explosive device (§ 453, subd. (a)); and possessing a firebomb (§ 453, subd. (b)). Schulz's convictions arise from two trials, during which he represented himself. At the first trial, the jury hung on the great bodily injury enhancement, and Schulz was sentenced to eleven years, eight months. The second trial involved only the great bodily injury enhancement which this time was found true. After this finding, the trial court resentenced Schulz--staying the two-year sentence on the firearm use enhancement and imposing the three-year sentence on the great bodily injury enhancement, for a total sentence of twelve years, eight months. By petition for writ of habeas corpus, Schulz raises jurisdictional issues identical to those raised in his appeal from case no. D013364.

Regarding the first trial resulting in the attempted murder conviction, Schulz contends the trial court (1) erroneously excluded evidence the victim was a commercial grower of marijuana, and that an attorney representing the victim in a civil action to recover benefits from Schulz's insurer had obtained a favorable settlement by asserting the shooting may have been accidental, and therefore not an excluded intentional act; (2) abused its discretion in first allowing, and then limiting evidence of Schulz's prior felony conviction for threatening a witness; and (3) erred in denying his motion for new trial based on juror misconduct. Regarding the retrial resulting in a finding of great bodily injury, Schulz contends (1) it was improper to try the enhancement after he had already begun serving his sentence on the underlying offense; (2) the jury was erroneously permitted to use his attempted murder conviction to find his specific intent to inflict great bodily injury; (3) the court improperly instructed that the great bodily injury could be based on aggravation of the relatively minor initial injury by post-shooting medical treatment; (4) the court improperly defined great bodily injury; and (5) the court erroneously denied his request for a continuance when his multiple court-ordered transfers between jail and prison, the jail's loss of all his accumulated trial materials, his deprivation of any meaningful access to his assigned legal assistant, and the trial transcript of the victim's treating physicians' testimony at the first trial was never provided to permit him to prepare for cross-examination at the second trial.

Because the People concede it was error to convict Schulz of both possessing a combustible substance (§ 453, subd. (a)) and possessing a firebomb (§ 453, subd. (b)), we do not address this issue further. For the following reasons, we affirm the judgment in case no. D012033 as modified, but reverse the judgment in case no. D013364, and deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

We briefly summarize the facts from this lengthy trial, expanding on them as necessary during our analysis below.

Schulz, an engineer, shot the ex-husband (John) of a woman (Janice) he had been dating. During the course of their romantic relationship, Schulz and Janice jointly purchased a home for Janice to live in. When Janice broke off the relationship stating she still loved her ex-husband, she agreed to refund Schulz's money used for the purchase of the house.

According to John, on October 29, 1985, Schulz appeared at his house claiming he had a package for him. When he opened the door, Schulz shot him with a gun hidden in a box. He fled into the house with Schulz following with the gun aimed at him. The gun jammed, Schulz left the house, and John called 911.

Thirty minutes later, a deputy sheriff stopped Schulz driving a rental car with its license plate partially covered with cardboard. A gun found in the car was jammed with a bullet in the chamber. On the back seat, there was a box with a pillow inside, with a bullet hole at the end of the box, characterized by the deputy sheriff as a homemade gun silencer. ²

John stated he had never met nor talked to Schulz before the shooting. Beginning three days before the shooting, John had been receiving annoying hang-up and cursing phone calls from an unknown caller. Schulz's telephone bill showed 17 telephone calls to John's number during that time period, some during the early morning hours.

Schulz claimed John had called and invited him to his home to talk about Janice, and he fired the gun only after John struck him to the ground and was leaning over him. Schulz claims he pulled back the hammer and shot John from a reclining position, but never followed him into the house when he fled. Instead, Schulz picked up personal items which had fallen from the box where the gun had been placed, and sped away because he was afraid John had retrieved a weapon inside the house.

The bullet entered and exited John's body, penetrating fatty tissue and ricocheting off abdominal muscles without penetrating the abdomen. The treating trauma surgeon, Dr. Savin, opened the wound from entrance to exit, in order to clean out the wound to prevent infection, and to check if the wound had penetrated the abdomen, leaving a 10-inch scar and resulting in a 12-day hospital stay.

At the first trial resulting in a hung jury on the great bodily injury enhancement, a forensic pathologist (Dr. Guard) testified for the defense the wound was minor and superficial, since it did not penetrate the abdomen and could have been treated merely by dressing and covering it. However, he stated Dr. Savin's surgery was appropriate to clean out the injured fatty tissue, to determine the extent of interior damage, to prevent infection and to speed healing. At the second trial where the jury found the great bodily injury allegation to be true, Dr. Guard did not testify.

CASE NO. D012033

A.-E. ^**

CASE NO. D013364

A.

Schulz next argues it was improper to retry the great bodily injury enhancement separately from the attempted murder count, pointing out the enhancement and the offense require adjudication of the same facts and the enhancement is not a distinct offense, but an added punishment. He contends when the jury hung on the enhancement, the prosecution should have been given the choice of either accepting the attempted murder verdict and requesting dismissal of the enhancement, or requesting a mistrial as to the attempted murder count as well and retrying both the attempted murder charge and its enhancement. Further, he asserts that since based on the attempted murder conviction he had begun serving his sentence and an appeal had been filed, the trial court was without jurisdiction to render the modified judgment based on the enhancement.

A similar argument has been rejected in the context of a trial which results in a conviction of one offense and a hung jury on another. Section 1160 expressly allows a retrial of charged offenses as to which the jury cannot reach a verdict. ¹⁵ In "The judgment pronounced on the first verdict was preliminary in nature, and was subject to modification. When all counts had been disposed of, in order for the court to pronounce a judgment which avoided double punishment, the court did appropriately stay the assault count to meet the requirements of section 654. In accepting the verdict on the assault count and then impanelling a new jury to try the two counts on which there had been jury disagreement, the court proceeded in compliance with the applicable statute (see Pen.Code, § 1160)." (Id. at p. 117, 154 Cal.Rptr. 672.)

People v. Culton (1979) 92 Cal.App.3d 113, 154 Cal.Rptr. 672, the defendant argued that section 654 precluded further trial on rape and robbery counts after he had been sentenced on a jury verdict finding him guilty of felonious assault. Rejecting the argument, the court stated:

There is no statutory provision directly addressing retrial of an enhancement following conviction and sentencing on the offense underlying the enhancement. Schulz argues that since the enhancement is not a distinct offense but rather merely increased punishment based on circumstances of the offense, ¹⁶ it cannot be tried separately after a jury fails to reach a verdict on the enhancement. Jeopardy does not attach solely from the fact of a mistrial and a defendant may be retried until complete and final disposition is made of all charges. (People v. Rojas (1975) 15 Cal.3d 540, 545-546, 125 Cal.Rptr. 357, 542 P.2d 229; People v. Allen (1974) 41 Cal.App.3d 821, 825, 116 Cal.Rptr. 493.) We conclude there is no legal or practical barrier to continued prosecution of an enhancement before a second jury where jeopardy is not a bar.

Schulz cites decisions in which courts refused to remand for further jury trial on an enhancement in circumstances where the prosecution was deemed to have waived the charge by failing to request proper jury instructions pertaining to the enhancement. (People v. Najera (1972) 8 Cal.3d 504, 509-511, 105 Cal.Rptr. 345, 503 P.2d 1353; People v. Spencer (1972) 22 Cal.App.3d 786, 801-802, 99 Cal.Rptr. 681.) The courts reasoned:

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