THE PEOPLE, Plaintiff and Respondent, v. JORDAN CHRISTOPHER HUGHES, Defendant and Appellant.
A154196
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Filed 9/11/19
(Solano County Super. Ct. No. FCR285903)
A jury convicted Jordan Christopher Hughes of attempted murder of a peace officer (
In the published portion of our opinion, we hold that
BACKGROUND
A.
On June 26, 2011, at 10:16 p.m., Fairfield Police Department Officer Neal was dispatched to an apartment complex in Fairfield where O.D. was sitting in a van with his daughter J.D. J.D. was Hughes‘s girlfriend and lived in apartment 17. The couple had been involved in a domestic dispute earlier that evening, and O.D. had driven J.D. back to her apartment to grab some belongings. She wanted officers to check the apartment before she went inside. J.D. had not seen Hughes with a gun that day but had seen him armed with a gun in the past.
Officer White arrived on the scene while Officer Neal obtained keys to the apartment from J.D. When the officers entered the apartment, they smelled marijuana. Officer Neal repeatedly yelled, “Fairfield Police Department. Anyone inside Apartment 17 make yourself known.” He also called Hughes by his name, but neither officer heard anything in response or detected movement. After they “cleared” the kitchen, bedroom and living room, they discovered the bathroom door was locked. Officer Neal advised Officer White they needed backup and went outside to get more information.
Officer Neal asked J.D. about the marijuana odor, and she told him that while she did not smoke, Hughes did. Asked about the bathroom door, J.D.
Officer Grimm and Sergeant Oviatt arrived and joined officers Neal and White. Officer Neal told the other officers about the possible firearm and suicide and said they “obviously had to open the bathroom door and force entry into the bathroom.” He devised a plan in which he would holster his weapon, kick the bathroom door open, and then run down the hallway toward Sergeant Oviatt as Officer Grimm and Officer White entered the bathroom behind him. Sergeant Oviatt would provide cover for all three officers.
Before entering the bathroom, Officer Neal repeatedly shouted, “Jordan, it‘s the Fairfield Police Department. You need to come out if you‘re inside.” When there was no response, Officer Neal kicked the bathroom door open, as planned, and Hughes immediately fired five shots. Officer Neal fell down and then pushed Officer White and Officer Grimm toward the bedroom at their end of the hall while Sergeant Oviatt fired shots into the bathroom, hitting Hughes. The bathroom door closed and a status check revealed that none of the officers was injured. Approximately ten minutes elapsed between Officer Neal‘s arrival on the scene and the time shots were fired.
An officer outside notified Sergeant Oviatt that Hughes was texting family members. Sergeant Oviatt yelled, “Jordan, I know you‘re in there. I know that you‘re text messaging people.” Hughes called out that he was injured, and Sergeant Oviatt offered to provide him with medical attention. After 45 minutes to an hour, Hughes opened the door and crawled out of the bathroom, where he was arrested and transported to the hospital. A revolver was found on the bathroom floor.
Hughes testified that he had been inside the bathroom with a gun because he was high and was considering killing himself. He had the gun because he had been robbed at gunpoint by a friend the previous December and remained traumatized and fearful for his life at all times. Hughes heard people inside the apartment but did not hear them say they were police. He fired his gun blindly when the door was kicked in to scare whomever was in the apartment, but he did not want to kill anyone. Hughes realized the people were police officers only after he had been shot when he heard someone call for a riot shield.
The defense also called Roger Clark, a retired Los Angeles County Sheriff‘s Deputy and police procedures consultant, to testify about the appropriate way to deal with mentally ill or suicidal individuals. When asked a hypothetical question based on the facts of this case, he was critical of the
B.
An amended information charged Hughes with three counts of attempted murder against Officers Neal, White, and Grimm (
The jury acquitted Hughes of the attempted murder counts naming Officers White and Grimm as victims (counts two-three) but convicted him of the attempted murder of Officer Neal (count one) and found true the allegation that count one was committed against a peace officer in the performance of his duties. It found untrue the allegation that the attempted murder of Officer Neal was premeditated. The jury also convicted Hughes of three counts of assault with a firearm on a peace officer as to Officers Neal, White, and Grimm (counts four-six), but acquitted him of the assault count against Sergeant Oviatt (count seven). Firearm enhancement allegations under
Hughes was originally sentenced to a term of life with the possibility of parole on the attempted murder count (count one) with a 20-year consecutive term for that count‘s firearm enhancement (
C.
Hughes appealed. In Hughes I, this Division conditionally reversed the judgment and remanded the matter for an in camera Pitchess review of
After issuance of the remittitur, the trial court conducted an in camera review of the officers’ personnel files and concluded no materials were discoverable. Hughes‘s trial counsel filed a resentencing brief, asking the trial court to consider his youth (21 years old in 2011) and mental illness in exercising its discretion to strike the firearm enhancements, under
At resentencing, the trial court declined to strike the firearm enhancements and, consistent with the People‘s request, again imposed the same aggregate sentence. The sentence is comprised of an indeterminate term of life with the possibility of parole on count one, a consecutive 20-year term for count one‘s firearm enhancement, a consecutive midterm of six years on count five, and a consecutive one-third midterm of two years on count six. The court again stayed the sentence on count four pursuant to
DISCUSSION
A.
Hughes argues a recently enacted statute allowing for pretrial mental health diversion (
1.
While the instant appeal was pending, the Legislature enacted
To be eligible, the court must be “satisfied that the defendant suffers from a mental disorder . . . including, but not limited to . . . post-traumatic stress disorder.” (
If a defendant meets the eligibility requirements, the trial court must also determine whether “the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.” ( If the defendant is charged with additional crimes, or otherwise performs unsatisfactorily while in treatment, the court may reinstate criminal proceedings. ( The People do not dispute that Hughes, on the other hand, relies on Lara, supra, 4 Cal.5th 299 and People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs), review granted December 27, 2018, S252220. In Frahs, the Fourth District Court of Appeal held In Lara, our Supreme Court considered Proposition 57 ( electorate intended Proposition 57 to apply retroactively to a defendant already charged, tried, and convicted as an adult before Proposition 57 took effect, as long as his judgment was not final. (Lara, at p. 304.) The court did not explicitly address the “attachment of jeopardy” language but reasoned that Proposition 57 gives rise to an inference of retroactivity through its reduction of “the possible punishment for a class of persons,” and because “nothing in Proposition 57‘s text or ballot materials rebuts this inference.” (Lara, at pp. 303-304, 308-309.) Frahs, supra, 27 Cal.App.5th 784 followed Lara, explaining: “[S]imilar to Proposition 57, the mental health diversion program under The People contend Frahs was incorrectly decided. They emphasize that Frahs rejected this argument: “The fact that mental health diversion is available only up until the time that a defendant‘s case is ‘adjudicated’ is simply how this particular diversion program is ordinarily designed to operate. Indeed, the fact that a juvenile transfer hearing under Proposition 57 ordinarily occurs prior to the attachment of jeopardy, did not prevent the Supreme Court in Lara, supra, 4 Cal.5th 299, from finding that such a hearing must be made available to all defendants whose convictions are not yet final on appeal.” (Frahs, supra, 27 Cal.App.5th at p. 791.) We agree with the Frahs court that The People alternatively argue a conditional remand would be futile because there is no possibility Hughes can establish the final eligibility criterion, which requires the trial court be “satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in An “unreasonable risk of danger to public safety” means “an unreasonable risk that the petitioner will commit a new violent felony” described in On remand in Hughes I, before the Legislature passed Assembly Bill No. 1810, Hughes‘s trial counsel asked the trial court to consider his mental illness in exercising its discretion to strike the firearm enhancements, under In 2012, Dr. Friedman stated both of Hughes‘s conditions (major depressive disorder and posttraumatic stress disorder) impacted his ability to think logically at the time of the shooting. Hughes reported being “uncertain” about why he fired the gun, but said, in some conflict with his testimony at trial, “maybe he was wanting the police to kill him.” Dr. Friedman concluded Hughes “does not display aggressive tendencies” and was unlikely to “direct[ly] harm” others. But, because his “suicidal potential persist[ed],” in 2012, “the more likely target of his actions would be himself.” Dr. Friedman saw “the potential for improvement with more comprehensive treatment.” In 2018, Hughes reported no longer feeling depressed or suffering nightmares. Dr. Friedman opined that Hughes had recovered from both posttraumatic stress disorder and major depressive disorder and was no longer “dangerous to other individuals or to society at large.” At resentencing, the trial court declined to strike the firearm enhancements and imposed the same aggregate term as it had originally. The trial court explained that Hughes‘s case involves “unusual circumstances,” in that “[he] clearly was trying to likely draw fire from the officers,” it was “miraculous” that none of the officers were injured, and “it wasn‘t clear to the Court . . . what area [Hughes] was shooting towards.” The court said, “[T]hat is why I didn‘t originally impose all the terms [in] full consecutively. I tried to look at the youth of the defendant, the mitigating circumstances concerning his mental health, as well as what he knew to be true and the imminent danger to the police officers who, fortunately, were not injured. . . . I think the original sentence . . . was appropriate because it would give [Hughes], with good behavior, the opportunity to parole while he was still a young man. . . . I think that‘s a just sentence, all things considered.” (Italics added.) We disagree with the People that the record compels a conclusion, as a matter of law, that Hughes poses an unreasonable risk of danger to public safety if treated in the community. The People are correct that the trial court indicated Hughes‘s substantial prison sentence was “just” and “commensurate with [his] actions.” It also declined to reduce Hughes‘s prison sentence by striking or dismissing any of the firearm enhancements in furtherance of justice. (See However, those sentencing determinations were made under a different calculus. (See People v. Burns 38 Cal.App.5th 776, 789.) Hughes may very well face an uphill battle due to the nature of the charges – three of his six current charges qualify as “super strikes” ( Because the trial court did not clearly indicate it would find Hughes ineligible for mental health diversion, this factual determination should be made by the trial court in the first instance. (People v. Burns, supra, 38 Cal.App.5th at p. 789; People v. Jefferson (2019) 38 Cal.App.5th 399, 407-408.) In the event he is not granted pretrial diversion, Hughes asks us to review the sealed Pitchess transcript and personnel records produced at the in camera hearing to determine whether the trial court abused its discretion by withholding discoverable records. The People concede Hughes is entitled to such review. Hughes‘s defense counsel filed a pretrial motion for the discovery of the police personnel records of Officers Neal, White and Grimm, and Sergeant Oviatt, seeking “any evidence or complaints of official misconduct, harassment, improper or excessive use of force, conduct unbecoming a police officer, illegal detention/arrests, false statements in reports, false claims of reasonable or probable cause, evidence of racial or class bias, or any other evidence or complaints of dishonesty.” Disclosure was sought on the basis the information was necessary to fully cross-examine prosecution witnesses and to fully investigate and prepare all defenses, including that the officers were not acting in lawful performance of their duties because they used excessive force in kicking down the door of the bathroom despite knowing Hughes was possibly suicidal and in possession of a gun. The trial court denied Hughes‘s motion, concluding it was “overbroad and not supported by good cause.” In Hughes I, this Division concluded the trial court abused its discretion in denying the motion as overbroad with respect to evidence and complaints concerning prior incidents of excessive force. Hughes I remanded to the trial court for an in camera review of the officers’ personnel files for claims of excessive force, but also cautioned: “Because [Hughes‘s] challenge to the lawfulness of the officers’ conduct in this case pertains to their decision to go forward with a forcible entry rather than to employ other means of persuading him to leave the bathroom, claims of other types of excessive force (unnecessary roughness during an arrest, etc.) may not be relevant to the pending case or subject to discovery.” After the remittitur issued in Hughes I, the trial court conducted an in camera review of the officers’ personnel files for information relevant to Hughes‘s excessive force defense and concluded no materials were discoverable. We review the trial court‘s decisions regarding discovery of an officer‘s personnel records for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) It is the trial court‘s responsibility, in order to permit appellate review, to “make a record of what documents it examined before ruling on the Pitchess motion. . . . If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party‘s ability to obtain appellate review of the trial court‘s decision, whether to disclose or not to disclose, would be nonexistent.” (Id. at p. 1229.) Here, Hughes‘s appellate counsel properly attempted to augment the record to obtain a settled statement of the trial court‘s in camera review. In response to our order granting Hughes‘s application, we received the sealed transcript from the in camera review, but we did not receive a copy of the documents the trial court reviewed or a log of such documents. Thus, we have only the sealed transcript of the trial court‘s in camera review, in which the court “state[d] for the record what documents it examined.” (Mooc, supra, 26 Cal.4th at p. 1229.) When the confidential personnel files themselves are subsequently unavailable, the appellate court may conduct an adequate review by considering only the sealed transcript. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) Having independently reviewed the sealed transcript, we conclude the trial court did not abuse its discretion in refusing to disclose any records from the officers’ personnel files. Hughes also contends the term imposed for the firearm enhancement ( Finally, Hughes points out two clerical errors in the modified abstract of judgment (referring to the original sentencing date rather than the resentencing date and failing to reflect his indeterminate term). He also contends the trial court failed, at the resentencing hearing, to calculate his actual custody credits through the date of resentencing. The People concede the clerical errors must be corrected, and also concede the trial court‘s error in failing to recalculate actual custody credits and reflect them in the amended abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 29 [“when a prison term already in progress is modified as the result of an appellate sentence remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison“]; The judgment is conditionally reversed, and the case is remanded to the trial court with directions to conduct a diversion eligibility hearing, under If the trial court determines that Hughes is ineligible for diversion, or it grants diversion but Hughes does not successfully complete it, then his convictions and sentence are reinstated. The trial court is further directed to stay the term imposed on the firearm enhancement to count four; award Hughes 2,466 actual time credits through the date of his resentencing; and prepare an amended abstract of judgment consistent with this opinion. BURNS, J. WE CONCUR: JONES, P. J. NEEDHAM, J. A154196 Superior Court of Solano County, No. FCR285903, Donna Stashyn, Judge. Xavier Beccera, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney Generral, Jeffrey M. Laurence, Senior Assistant Attorney General, Arthur P. Beever, Deputy Attorney General, and Lisa Ashely Ott, Deputy Attorney General, for Plaintiff and Respondent. Catherine A. White, under appointment by the Court of Appeal, for Defendant and Appellant.2.
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DISPOSITION