39 Cal.App.5th 886
Cal. Ct. App.2019Background
- In 2011 Fairfield officers entered Apartment 17 searching for Jordan Hughes; after officers kicked open a locked bathroom door Hughes fired multiple shots; officers returned fire and Hughes was arrested. A revolver was recovered.
- Hughes was tried and convicted of attempted murder of Officer Neal and three counts of assault with a firearm on police officers; true findings were made on personal discharge enhancements under Penal Code § 12022.53(c).
- On initial appeal (People v. Hughes), this court conditionally reversed and remanded for an in camera Pitchess review of four officers’ personnel files; if no new trial was ordered, the case would be reinstated and resentenced.
- After remand the trial court conducted the Pitchess in camera review, found nothing discoverable, and resentenced Hughes to the same aggregate term; defense sought striking of firearm enhancements based on youth and mental-health reports.
- While this appeal was pending the Legislature enacted Penal Code §§ 1001.35–1001.36 (pretrial mental-health diversion); Hughes argued § 1001.36 applies retroactively to nonfinal cases and sought a diversion-eligibility hearing.
- The Court of Appeal: (1) holds § 1001.36 applies retroactively to convictions not yet final, (2) finds the Pitchess in camera proceeding was not an abuse of discretion, and (3) conditionally reverses and remands for a § 1001.36 diversion eligibility hearing; if diversion is denied or unsuccessful, the court directs several sentencing clerical corrections (stay count 4 firearm enhancement; award 2,466 actual custody credits; amend abstract).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of Penal Code § 1001.36 | People: statute is pretrial only and should apply prospectively (not to already adjudicated convictions). | Hughes: § 1001.36 is ameliorative and under Estrada and Lara applies retroactively to all cases not final on appeal. | Court: § 1001.36 applies retroactively to judgments not yet final; remand for diversion eligibility hearing. |
| Futility / dangerousness prevents remand | People: remand futile because Hughes cannot meet § 1001.36’s safety criterion (would pose unreasonable risk of new super strike). | Hughes: trial court must evaluate dangerousness in first instance; record does not foreclose eligibility. | Court: remand is not futile; trial court must determine eligibility (including dangerousness) under § 1001.36. |
| Adequacy of Pitchess in camera review | People: trial court properly conducted review and withheld personnel records. | Hughes: after Hughes I remand, trial court abused discretion by denying discovery and failing to disclose discoverable excessive‑force records. | Court: independent review of sealed transcript shows no abuse of discretion; no disclosure required. |
| Sentencing errors and clerical matters | People: concede some errors (stay of firearm enhancement to count 4 and abstract/credit errors) should be corrected. | Hughes: asks stay of count 4 firearm enhancement and correction of abstract and award of actual custody credits. | Court: if diversion denied or unsuccessful, convictions/sentence reinstated but direct trial court to stay count 4 firearm enhancement, award 2,466 actual credits, and issue corrected abstract. |
Key Cases Cited
- Pitchess v. Superior Court, 11 Cal.3d 531 (discussion of discovery of police personnel records)
- In re Estrada, 63 Cal.2d 740 (ameliorative criminal law changes presumptively apply retroactively)
- People v. Superior Court (Lara), 4 Cal.5th 299 (Estrada inference applied to juvenile transfer/Proposition 57)
- People v. Buycks, 5 Cal.5th 857 (discussing retroactivity and ameliorative changes)
- People v. Frahs, 27 Cal.App.5th 784 (held § 1001.36 applies retroactively; conditional reversal for diversion hearing)
- People v. Mooc, 26 Cal.4th 1216 (procedures and record requirements for Pitchess in camera review)
- People v. Myles, 53 Cal.4th 1181 (appellate review may rely on sealed in camera transcript when files unavailable)
- People v. Bui, 192 Cal.App.4th 1002 (stay required for enhancements attached to stayed substantive counts)
- People v. Mustafaa, 22 Cal.App.4th 1305 (same rule on staying enhancements)
- People v. Buckhalter, 26 Cal.4th 20 (trial court must recalculate and credit actual custody when sentence modified)