Opinion
A151435
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ROSS SHULTZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51600303)
Defendant William Ross Shultz, convicted of first degree murder of an 11-year-old boy committed when Shultz was 18 years old, appeals on the basis of alleged instructional error and error in imposing attorney fees and a laboratory fee. The Attorney General concedes error in the assessment of the fees, but he contends the instructions on first degree murder were correct. The challenged sentence in CALCRIM No. 521 is: "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. . . ." Shultz contends the word "murder" at the end of that clause should have been replaced with " 'first degree murder.' " Without that modification, he argues, jurors may have believed he was guilty only of implied malice, second degree murder, yet voted to find him guilty of first degree murder in reliance on that one sentence.
We conclude the instruction was not erroneous in the circumstances of this case when considered in light of the entire charge, and it did not taint the verdict. It would not have been understood by the jury as Shultz postulates, and it is clear beyond a reasonable doubt that the jury's verdict would not have changed if the words had been modified as Shultz proposes. Therefore, we will affirm the conviction but vacate the orders imposing attorney fees and lab fees.
I. BACKGROUND
On April 25, 2015, 18-year-old William "Billy" Shultz, along with some other youths, was spending the night at the family home of his best friend, Evan A. (Evan), whom he had known since sixth grade. In the middle of the night, while everyone else was asleep, Shultz got up and stabbed Evan's 11-year-old brother, Jordan, to death. Shultz stabbed the boy at least four times in the torso and in the front and back of the neck area, severing both his jugular vein and his spinal cord. He used a knife that he had bought the day before the killing and kept in his Adidas bag as part of a survival kit. Before entering Jordan's room, he donned a pair of surgical gloves he had brought with him.
After stabbing Jordan, Shultz entered Evan's bedroom and took the keys to his truck from his bedside table. Shultz then took Evan's black Chevrolet Silverado and drove himself to the hospital because he had cut himself during the attack on Jordan. The act of entering Evan's room, followed by taking the keys and truck, would later form the basis of a burglary charge.
The next morning, after responding to a 911 call from the Almgren home, the police spotted Evan's truck in the hospital parking lot, located Shultz in the hospital, and took him into custody. When he was interviewed by the police, Shultz admitted stabbing Jordan, and his interview video was played for the jury at trial. He claimed in the police interview that he had been having a delusion about World War III being about to start when he killed Jordan. Shultz recalled that he expected a nuclear bomb to go off at 3:00 a.m. as stated in The Southland Tales, a graphic novel series he carried with him in his Adidas bag because he believed they held "all the answers" and explained that the world was about to end. Due to his belief that a bomb was about to go off, he became unable to sleep and went upstairs at about 4:00 or 4:30 a.m. He felt he had to know what it felt like to kill someone before he himself was killed. He initially considered killing Evan, but he chose Jordan instead because Jordan was smaller. He placed his hand over Jordan's mouth as he was stabbing him, so that Jordan could not cry out and wake up those sleeping. He also turned off the power so that the others' alarms would not go off in the morning.
Charged with first degree murder and first degree burglary, Shultz entered pleas of not guilty and not guilty by reason of insanity. In the guilt phase of the trial, Shultz's attorney conceded before the jury that Shultz was guilty of second degree murder but claimed he lacked the mental state for first degree murder. The judge gave CALCRIM No. 520 on "first or second degree murder with malice aforethought," which told the jury that malice aforethought was necessary for any murder conviction (first degree or second degree), defined express and implied malice, and ended with the following sentence: "If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in [CALCRIM] instruction Number 521."
The court then read the jury CALCRIM No. 521 on "first degree murder," as given: "The defendant has been prosecuted for first degree murder under two theories: The murder was willful, deliberate, and premeditated; [¶] And, two, the murder was committed by lying in wait.
"Each theory of first degree murder has different requirements, and I will instruct you on both. You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder, but all of you do not need to agree on the same theory."
Continuing to read CALCRIM No. 521, the court proceeded to explain the elements of (1) deliberation and premeditation and (2) lying in wait. The pattern instruction ended with: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."
On March 30, 2017, the jury found Shultz guilty of first degree murder (Pen. Code, § 187) after deliberating for just over one hour. The jury also found the knife enhancement (§ 12022.1, subd. (b)(1)) to be true, and found Shultz guilty of burglary of Evan's bedroom, with an occupant present (§§ 459, 667.5, subd. (c)(21)). A trial on Shultz's insanity defense followed approximately three weeks later, when the jury found he was sane at the time of the crimes.
Further undesignated statutory references are to the Penal Code.
The district attorney had alleged a special circumstance of murder while lying in wait within the meaning of section 190.2, subdivision (a)(15). The special circumstance allegation was set aside pursuant to section 995.
On May 19, 2017, the judge sentenced Shultz to 25 years to life, plus a five-year determinate consecutive term for related crimes of first degree burglary with a person present (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)) (for which he was sentenced to four years in prison) and a knife-use enhancement on the murder charge (§ 12022, subd. (b)(1)) (for which he was sentenced to an additional year in prison). The judge awarded presentence custody credits and imposed various fines and fees, including attorney fees in an unspecified amount. Although the judge did not impose a laboratory fee, a lab fee of $205 is reflected on the abstract of judgment.
The verdict form recited that the knife use allegation was found true as to a verdict of guilty of second degree murder. This was later corrected to reflect the enhancement attached to a verdict of first degree murder.
II. DISCUSSION
A. Jury Instruction on First Degree Murder
The People requested CALCRIM Nos. 520 and 521; the defense raised no objection and asked for no modification of the pattern instruction. When a pattern instruction is correct as written, but the defendant suggests it needs a modification, he must so request in the trial court or he forfeits the issue on appeal. (People v. Buenrostro (2018) 6 Cal.5th 367, 428; People v. Mackey (2015) 233 Cal.App.4th 32, 105-106.)
Nevertheless, Shultz now contends one sentence in CALCRIM No. 521 misinformed the jury because it did not require a unanimous verdict that the crime was a first degree murder and not a second degree murder. The allegedly offending passage, as given, was this: "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder, but all of you do not need to agree on the same theory." Whereas the last clause of the passage has been challenged repeatedly without much success, Shultz challenges the first clause. He contends the words "first degree murder" must be substituted for "murder" at the end of that clause. Otherwise, he argues, some jurors may have believed Shultz was guilty only of implied malice, second degree murder, yet voted with those who thought he was guilty of first degree murder in reliance on the quoted sentence. We conclude the jury would not have understood the challenged instruction as authorizing a first degree murder verdict if all the statutory elements were not established, as Shultz contends.
California cases are legion explaining that jurors need not unanimously decide on a theory that makes a killing first degree murder, so long as all of them agree that the defendant's crime was a first degree murder. (See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1048; People v. Russell (2010) 50 Cal.4th 1228, 1257 ["Because lying in wait and deliberate and premeditated theories of murder are simply different means of committing the same crime, juror unanimity as to the theory underlying its guilty verdict is not required"]; People v. Hughes (2002) 27 Cal.4th 287, 369 ["it is unnecessary for jurors to agree unanimously on a theory of first degree murder"].)
In his reply brief Shultz also argues the second sentence quoted above should have been modified to add the following italicized words, so that it would say, "but all of you do not need to agree on the same theory of first degree murder." We need not address this argument separately. (Sunseri v. Camperos Del Valle Stables, Inc. (1986) 185 Cal.App.3d 559, 562, fn. 4; see also Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [fairness militates against consideration of new issues raised in a reply brief].) In any case, analyzing it would lead to the same result.
" 'When we review challenges to a jury instruction as being incorrect or incomplete, we evaluate the instructions as a whole, not in isolation. [Citation.] "For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction." ' " (People v. Nelson (2016) 1 Cal.5th 513, 544; accord People v. Mayfield (1997) 14 Cal.4th 668, 777; see also, e.g., People v. Castillo (1997) 16 Cal.4th 1009, 1016 ["[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."].)
CALCRIM No. 521, labeled as an instruction on "first degree murder," initially told the jury there were "two theories" that could lead to a first degree murder verdict, each with differing requirements. The instruction explained the elements of each of the two theories: (1) premeditation and deliberation, and (2) lying in wait. When the jury was instructed that it need not be unanimous as to the "theory" of guilt, the jurors would have related that instruction back to the "two theories" just identified. Nowhere in the instruction was second degree murder referred to as a "theory" of guilt. In fact, second degree murder was not mentioned until the end of the instruction, when it was presented as a remaining option if a juror found the prosecutor did not meet his burden of proving all the elements to establish one of the two theories of first degree murder.
Considering the charge as a whole, the jurors were also told: "The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." (CALCRIM No. 521.) They were also instructed, "If you decide that the defendant committed murder, it is murder of the second degree unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in [CALCRIM] instruction Number 521." (CALCRIM No. 520.) And finally, the jury was given CALCRIM No. 641, explaining use of the verdict forms, which included the following advice: "As with all of the charges in this case, to return a . . . verdict of guilty or not guilty on a count, you must all agree to that decision . . . . [¶] . . . [¶] [I]f all of you cannot agree whether the defendant is guilty of first degree murder, inform me only that you cannot reach an agreement and do not complete or sign any verdict forms for that count." (Italics added.) In addition, the prosecutor explained to the jury in rebuttal argument the two theories of first degree murder and that the jury need not agree as to which of those two theories might apply.
Based on the structure, language, and context of the instruction, the intended meaning of the challenged sentence was that Shultz must be found to have committed murder under one theory or another before he may be found to be guilty of first degree murder. That is a correct statement, as a finding of murder is a necessary but not a sufficient basis for a finding of first degree murder. True, the prosecutor would also have to prove Shultz premeditated and deliberated or engaged in other acts raising the degree of the crime to first degree murder (such as lying in wait) (see § 189, subd. (a)), but the instructions also explain a murder conviction of either degree. (CALCRIM No. 520.)
CALCRIM No. 521 does not contain an explicit misstatement of law—it is at worst ambiguous if one sentence is read without regard to any context. Shultz alleges the challenged sentence allowed the jury to convict the defendant of first degree murder without all twelve jurors subjectively believing he was guilty of first degree murder. He argues, "[o]ne or more jurors could have relied upon Billy's guilt of second degree malice murder, conceded by counsel, and since that yielded a finding he had committed murder, by the terms of this instruction this became first degree murder." Shultz's logic works, if at all, only by viewing the one allegedly offending sentence in isolation.
When the entire charge to the jury is considered, the jury could not have convicted Shultz of first degree murder unless all twelve jurors found the People proved beyond a reasonable doubt that the murder was willful, deliberate, and premeditated, or that it was committed after lying in wait. The last sentence of CALCRIM No. 521 requires the People to bear the burden of proving beyond a reasonable doubt the killing was first degree. It follows that if any juror had a reasonable doubt Shultz premeditated and deliberated or lay in wait, he or she could not have voted to convict him of a crime greater than second degree murder. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.) Viewed in full context, the language used was not erroneous and was not likely to have been understood in a manner to offend the Constitution or the laws of this state.
The two cases relied upon by Shultz involve significant differences in their facts and the applicable law so that they are neither controlling nor persuasive. Both cases involved a challenge to language similar to the second sentence in the passage from CALCRIM No. 521—"But all of you do not need to agree on the same theory"—not the sentence challenged by Shultz.
Shultz relies chiefly on People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson), in which Division Two of this district reversed a first degree murder conviction for two defendants because the jury was instructed that it need not unanimously agree on the theory of murder in circumstances where the difference in theories would have resulted in the difference between first and second degree murder. (Id. at pp. 1277-1280.) That is a different problem than the alleged deficiency in the instruction raised by Shultz.
In Johnson, four men in a car sped into a campground near Lake Mendocino. One of the men, Marvin Johnson, was there to retrieve his wife, who was camping out in an effort to escape their abusive relationship. (Johnson, supra, 243 Cal.App.4th at pp. 1252-1255.) Besides Johnson, who was yelling for his wife to get in the car, two other men jumped out of the car, one with a pistol-grip shotgun and another with a .45-caliber handgun. (Id. at pp. 1253-1254.) The one with the handgun wore a bandana covering his nose and mouth. (Ibid.) He waved the handgun around in the air, told the campers to get on the ground, and ended up shooting two campers, killing one and seriously wounding the other. (Id. at pp. 1251, 1253-1254.) The wounded man testified that the fourth man in the car, Simon Thornton, hit him in the back of the head with a hard object as he was struggling with the gunman. (Id. at p. 1255.)
Johnson and Thornton were tried together. There was no evidence they were shooters in the incident, but they were tried for first degree murder based on felony murder and aiding and abetting principles. The prosecution presented the theories that Johnson and Thornton were either guilty of aiding and abetting a second degree murder, or else were guilty of aiding and abetting an attempted robbery or attempted kidnapping, which would make their crime a first degree murder. (§ 189, subd. (a); Johnson, supra, 243 Cal.App.4th at pp. 1251, 1277-1281.) "The essence of each defendant's defense was that he did not intend to facilitate an attempted robbery or kidnapping, Johnson because he had independent motives for going to the campground and Thornton because he was unaware of the direct perpetrators' intent." (Johnson, at p. 1275.)
The trial judge in Johnson read a modified version of CALCRIM No. 548, which contained language similar to that in CALCRIM No. 521. As given in the case before us, CALCRIM No. 521 says in part: "You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder . . . but all of you do not need to agree on the same theory." (Italics added.) Similarly, but not identically, the jury in Johnson was instructed as part of CALCRIM No. 548: " 'You may not find a defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of [the prosecution's identified] theories. You do not all need to agree on the same theory.' " (Johnson, supra, 243 Cal.App.4th at p. 1277, italics added.)
Unlike here, the defendants' focus in Johnson was on the second sentence quoted above: "You do not all need to agree on the same theory." (Johnson, supra, 243 Cal.App.4th at p. 1277.) Because the defendants faced a first degree murder conviction based on one theory and a second degree murder conviction based on the other theory, Johnson held the jurors' disagreement over the "theory" of the crime was tantamount to a disagreement over degree. (Id. at pp. 1277-1281.) Because unanimity was required as to degree (§ 1157; Johnson, at p. 1278), Division Two reversed the first degree murder convictions and remanded for a retrial on first degree murder, or alternatively, for the prosecutor's acceptance of second degree murder convictions. (Johnson, at pp. 1281-1287.) Under the rationale of Johnson, only when a difference in theory also entails a difference in degree of the crime must the CALCRIM language be modified or omitted. In the case before us, Shultz faced two identified and defined theories leading to a first degree murder verdict. Disagreement as to theory would not constitute disagreement as to degree. Johnson is not on point and does not support Shultz's argument.
People v. Sanchez (2013) 221 Cal.App.4th 1012 (Sanchez), also cited by Shultz, is distinguishable on the same basis. Sanchez involved multiple actors charged with murder for a killing that occurred when a group of men involved in a drug operation, who believed the victim, Marco Parra, had stolen over a million dollars in drug proceeds and drugs from one of the men, killed him, apparently in revenge. (Id. at p. 1015-1017.) In three separate vehicles, a group of men, including Cesar Sanchez, converged on a truck parked in a parking lot in which Parra was sitting, blocking the truck from leaving. Several men with guns emerged from one of the vehicles. When Parra tried to run, they strong-armed him into a gold Camry that had parked behind the truck. Parra was apparently shot as the Camry left the parking lot, and his body was dumped. (Id. at pp. 1016-1018.)
A man named Castrellon was identified as having used a gun to force Parra into the Camry, but Castrellon claimed he then left the scene. (Sanchez, supra, 221 Cal.App.4th at pp. 1017-1018.) Sanchez, who was in the gold Camry but "was not alleged to be the shooter, was prosecuted" as an aider and abettor. (Id. at p. 1014.) Sanchez and Castrellon were tried together. "In closing argument, the prosecutor outlined the two theories available to convict [Sanchez] and Castrellon of murder: (1) conviction of first degree felony murder if defendants were involved in a kidnapping and Parra was killed during the kidnapping and (2) conviction of second degree murder if the jury did not find there was a kidnapping, but instead found [Sanchez] and Castrellon were present to assault Parra in order to obtain the missing drugs and money, and Parra's murder was a natural and probable consequence of the assault." (Id. at p. 1022.) "The jury had two choices to make in deciding what crime was committed—either first degree felony murder or second degree murder under the natural and probable consequences doctrine." (Id. at p. 1026.)
During deliberation, the jury requested more information on the difference between first and second degree murder and asked for a definition of second degree murder. The judge read CALCRIM Nos. 548 and 520 in response. (Sanchez, supra, 221 Cal.App.4th at pp. 1022-1023.) The Court of Appeal held it was error to instruct the jurors that they need not agree on the theory of guilt because the two aiding and abetting alternatives presented led to different results as to the degree of the murder. (Id. at pp. 1024-1026.) Unanimity was required as to the theory of guilt because, as in Johnson, different theories would have supported different degrees of murder. (Ibid.)
Sanchez, like Johnson, dealt specifically with the language of CALCRIM No. 548, whereas we deal with the slightly different language of CALCRIM No. 521. Moreover, Shultz challenges a different part of the instruction from the language challenged in Sanchez and Johnson. The crimes in both those cases involved multiple defendants, felony murder, and aiding and abetting principles, which added a layer of complexity not present here. In both Johnson and Sanchez nonkillers were charged with first degree murder, whereas here a solo killer was on trial. In both Johnson and Sanchez there was only one "theory" of first degree murder, whereas here there were two such theories. Last, and most important, in both Johnson and Sanchez, a difference in theories of guilt would have made a difference in the degree of the offense (People v. Webb (2018) 25 Cal.App.5th 901, 906), whereas here it would not. These distinctions make Johnson and Sanchez inapposite. The instruction given in this case was correct in the circumstances.
But even if the challenged sentence in CALCRIM No. 521 were deemed incorrect, we could not find the instruction prejudicial, even assuming the standard of review for federal constitutional error would apply. (Chapman v. California (1967) 386 U.S. 18, 24.) It was clear from other instructions that the jurors had to agree unanimously that the elements of first degree murder had been proven before they could return a guilty verdict on first degree murder. The jury reached its verdicts in little more than an hour of deliberation. We are confident the change in language advocated by Shultz would not have resulted in a more favorable verdict. The error, if any, was harmless beyond a reasonable doubt. (Ibid.) When we view it in context with accompanying instructions, the evidence in the record, and the arguments of counsel (see People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Dieguez (2001) 89 Cal.App.4th 266, 276), we are convinced beyond a reasonable doubt that Shultz was not prejudiced by the alleged misstatement.
B. Attorney Fees
Shultz also contends the court erroneously assessed attorney fees of an undetermined amount (reflected on the clerk's minutes and abstract of judgment as $500.00) under section 987.8, subdivision (b). In this circumstance, the oral pronouncement prevails. (People v. Mitchell (2001) 26 Cal.4th 181, 185; see §§ 1191 & 1202.) An abstract of judgment cannot add to or modify the court's judgment. (Mitchell, at p. 185; People v. Mesa (1975) 14 Cal.3d 466, 471.) What's more, the court did not follow mandated procedure to determine Shultz's ability to pay before assessing attorney fees. Before a court may require a criminal defendant to pay attorney fees, the judge must hold a hearing on the defendant's ability to pay pursuant to section 987.8, subdivision (b). (People v. Gonzales (2017) 16 Cal.App.5th 494, 504-505.) Moreover, section 987.8, subdivision (g)(2)(B) specifically incorporates a presumption that defendants sentenced to prison do not have an ability to pay attorney fees. For these reasons, the Attorney General agrees that the imposition of attorney fees must be vacated. We concur. The appropriate remedy is to strike the order to pay fees without remanding for further proceedings. (People v. Rodriguez (2019) 34 Cal.App.5th 641, 650.)
C. Laboratory Fees
Shultz's final argument is that the laboratory fee of $205 under Health and Safety Code section 11372.5, subdivision (a) was improperly reflected on the abstract of judgment because no such fee was actually imposed, according to the reporter's transcript. Again we agree, and again the Attorney General concedes the issue.
III. DISPOSITION
The judgment is affirmed, except the orders for defendant to pay attorney fees and laboratory fees are vacated and shall be stricken from the abstract of judgment. The superior court clerk shall prepare an amended abstract of judgment to conform to this opinion and shall forward a copy of the amended abstract to the California Department of Corrections and Rehabilitation.
/s/_________
STREETER, Acting P. J. WE CONCUR: /s/_________
TUCHER, J. /s/_________
BROWN, J.