People v. Schultz

Opinion

WIENER, J. Defendant Mark James Schultz appeals after a jury found him guilty of two counts of forcible oral copulation in concert (Pen. Code, § 288a, subd. (d))2 based on events occurring in the San Diego County jail facility in Vista. As to one of the two counts, the Attorney General concedes that a technical error in the taking of the verdict requires reversal and [537]precludes retrial on that count. As to the remaining count, we conclude that a conceded error by the trial judge in refusing to admit defense-proffered evidence cannot reasonably be said to have affected the result and that Schultz’s claims of instructional error are unpersuasive. Accordingly, we affirm as to one count and reverse as to the other.

Factual and Procedural Background

In July 1985, Schultz was incarcerated in “Mod 4” of the Vista jail facility along with the alleged victim, John Hughes. On the afternoon of July 14, a fellow inmate named Edward Mills approached Hughes while he sat on the toilet and instructed Hughes to orally copulate him “or else.” When Hughes refused, Mills responded by slapping him and repeating his demand. When Hughes said nothing, Mills slapped him again and said, “Hurry up.” Hughes then proceeded to orally copulate Mills.

While these events took place, Schultz sat on his bunk and watched. Hughes testified that Mills laughed and acted as though the entire incident was for the purpose of “showing off.” Schultz then got down off his bunk, snapped his fingers and told Hughes, “Suck this.” When Hughes hesitated, Mills slapped him on the back of the head and said, “Do what the man says.” Hughes then orally copulated Schultz, the incident lasting between one and two minutes. During that time, when Hughes pulled back, Mills slapped him saying, “Don’t stop. Keep going.” Schultz then backed off saying, “That’s cool.” He and Mills began to laugh.

A short time later after dinner, Mills approached Hughes saying, “You are going to do me again.” When Hughes said “Why not later?” Mills slapped him and repeated his demand. The two then went to Hughes’s cell where Hughes orally copulated Mills on Hughes’s bunk for approximately 30 to 40 minutes. Hughes was then forced to orally copulate another inmate named Paul Prince.

Approximately 15 minutes later, Schultz approached Hughes and told him he was going to “give him head” in about five minutes whether Hughes liked it or not. Schultz instructed Hughes to put curtains around his bunk for privacy. When Schultz returned, Hughes suggested waiting but Schultz said, “No. We will do it right now.” Schultz then crawled into Hughes’s bunk and looked at a pornographic magazine while Hughes orally copulated him. Thereafter, Mills forced Hughes to orally copulate two other prisoners. Prior to one of these incidents, Mills slapped Hughes on the left side of his head with such force that it punctured Hughes’s eardrum.