Opinion
A154196
09-11-2019
The PEOPLE, Plaintiff and Respondent, v. Jordan Christopher HUGHES, Defendant and Appellant.
Xavier Beccera, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, 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.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts B., C., D., and E. of the Discussion.
Xavier Beccera, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, 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.
BURNS, J.
A jury convicted Jordan Christopher Hughes of attempted murder of a peace officer ( Pen. Code, §§ 187 subd. (a), 664 ) and three counts of assault with a firearm on a peace officer (§ 245, subd. (d)(1)). The jury also found that Hughes personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) in committing all four offenses. In a prior appeal, People v. Hughes (May 18, 2017, A145853) 2017 WL 2178841 (nonpub. opn.) ( Hughes I ), this Division conditionally reversed Hughes's convictions and remanded for the trial court to conduct an in camera Pitchess hearing. If a new trial was not ordered, Hughes was to be resentenced. Hughes appeals for a second time, asking us to examine the Pitchess records produced and deemed undiscoverable on remand. He also argues that recently enacted mental health diversion statutes (§§ 1001.35, 1001.36) apply retroactively to nonfinal cases and that sentencing errors and clerical mistakes in the abstract of judgment require modification.
Undesignated statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess ).
In the published portion of our opinion, we hold that section 1001.36 applies retroactively. In the unpublished portion of our opinion, we address Hughes's remaining arguments and agree that a conditional reversal and remand is appropriate so the trial court may consider his diversion eligibility. If on remand the court determines Hughes is not eligible for section 1001.36 relief, his convictions and sentence are reinstated, and the trial court is directed to stay the sentence for the firearm enhancement to count four and issue a modified abstract of judgment making clerical corrections and reflecting Hughes's 2,466 actual time credits. Otherwise, we affirm.
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. said it had been unlocked when she left and if it was locked, then Hughes had probably killed himself. She explained that Hughes always said he was going to kill himself when they fought.
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 officers' decision to kick down the door. Clark explained that when a subject is barricaded in a room where he cannot escape, officers should set up a line of communication and attempt to get him to come out on his own. Entering the room by force was too risky for the officers.
B.
An amended information charged Hughes with three counts of attempted murder against Officers Neal, White, and Grimm ( §§ 664, 187, subd. (a) ; counts one-three), and alleged the crimes were premeditated and committed against peace officers engaged in the performance of their duties ( § 664, subds. (e), (f) ). Hughes was also charged with four counts of assault with a firearm on a peace officer (§ 245, subd. (d)(1); counts four-seven), naming as victims Officers Neal, White, and Grimm, and Sergeant Oviatt. As to all seven counts, it was further alleged Hughes had personally and intentionally discharged a firearm under section 12022.53, subdivision (c).
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 section 12022.53, subdivision (c), were found true as to each count of conviction.
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 (§ 12022.53, subd. (c)). The trial court stayed, under section 654, the sentence on the assault with a firearm count involving Officer Neal (count four), including the 20-year term for the section 12022.53 subdivision (c) enhancement attached to that count. Finding neither mitigating nor aggravating circumstances predominant, the trial court imposed a consecutive six-year middle term for the assault count involving Officer White (count five) plus a two-year consecutive term (one-third the middle term) for the assault count involving Officer Grimm (count six) (§§ 245, subd. (d)(1), 1170.1, subd. (a)), but stayed the firearm enhancement terms attached to both counts under section 654.
C.
Hughes appealed. In Hughes I , this Division conditionally reversed the judgment and remanded the matter for an in camera Pitchess review of Officers Neal, White and Grimm's, and Sergeant Oviatt's personnel records. In the event a new trial was not ordered after the Pitchess review, Hughes I ordered reinstatement of the judgment of conviction and resentencing because the trial court's stay of the firearm enhancement terms for counts five and six was unauthorized, given that these counts "(unlike count 4) involved different victims" than count one. ( Id. at 13, 1, 14.)
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 section 12022.53, subdivision (h). In support, defense counsel attached reports from a neuropsychologist, Dr. Friedman, who diagnosed Hughes as suffering from major depressive disorder and posttraumatic stress disorder.
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 section 654 but imposed (without stay) concurrent 20-year terms for the firearm enhancements on each of counts four, five, and six. DISCUSSION
A.
Hughes argues a recently enacted statute allowing for pretrial mental health diversion (§ 1001.36) applies retroactively and that this matter must be remanded for a determination of his eligibility. The People disagree, contending the statute operates only prospectively. Hughes has the better argument.
1.
While the instant appeal was pending, the Legislature enacted sections 1001.35 and 1001.36 as part of Assembly Bill No. 1810 (Stats. 2018, ch. 34, §§ 24, 37), with the goal of promoting "[i]ncreased diversion of individuals with mental disorders to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety" and "meet[ing] the unique mental health treatment and support needs of individuals with mental disorders." (§ 1001.35, subds. (a), (c).) Section 1001.36 gives the trial court discretion to "grant pretrial diversion" if the defendant meets all of six eligibility requirements. (§ 1001.36, subds. (a)-(b).) "Pretrial diversion" is statutorily defined to mean "the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication , to allow the defendant to undergo mental health treatment ...." (§ 1001.36, subd. (c), italics added.)
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." (§ 1001.36, subd. (b)(1)(A).) Second, the court must also be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (§ 1001.36, subd. (b)(1)(B).) Third, "a qualified mental health expert" must opine that "the defendant's symptoms of the mental disorder motivating the criminal behavior would respond to mental health treatment." (§ 1001.36, subd. (b)(1)(C).) Fourth, subject to certain exceptions, the defendant must consent to diversion and waive his or her right to a speedy trial. (§ 1001.36, subd. (b)(1)(D).) Fifth, the defendant must agree "to comply with treatment as a condition of diversion." (§ 1001.36, subd. (b)(1)(E).) Finally, the court must be "satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community." (§ 1001.36, subd. (b)(1)(F).) Defendants charged with certain crimes, including murder, voluntary manslaughter, and rape, are also statutorily excluded. (§ 1001.36, subd. (b)(2).)
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." (§ 1001.36, subd. (c)(1)(A).) The court may then grant diversion and refer the defendant to an approved treatment program (§ 1001.36, subd. (c)(1)(B)), and the program "shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment." (§ 1001.36, subd. (c)(2).) "The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years." (§ 1001.36, subd. (c)(3).)
If the defendant is charged with additional crimes, or otherwise performs unsatisfactorily while in treatment, the court may reinstate criminal proceedings. (§ 1001.36, subd. (d).) However, if the defendant "satisfactorily" completes the diversion program, the court shall dismiss the criminal charges. (§ 1001.36, subd. (e).) 2.
We now turn to the question of whether section 1001.36 applies retroactively. Whether a statute operates retroactively or prospectively is a question of legislative intent. ( People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.) The default rule is provided by section 3: "No part of [the Penal Code] is retroactive, unless expressly so declared." There is a qualification to this default rule, however: Absent contrary indications, a law that potentially ameliorates punishment for a particular crime or class of defendants will apply retroactively to all cases not final on appeal. ( Lara, supra , at pp. 303-304, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22, citing In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) "The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( People v. Buycks (2018) 5 Cal.5th 857, 881, 236 Cal.Rptr.3d 84, 422 P.3d 531.)
The People do not dispute that section 1001.36 is potentially ameliorative for a class of defendants – those diagnosed with certain mental disorders. (§ 1001.36, subds. (a), (b), & (e).) Instead, they argue the Legislature "clearly signal[ed] its intent" to rebut the Estrada inference. ( People v. Nasalga (1996) 12 Cal.4th 784, 793, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)
Hughes, on the other hand, relies on Lara, supra , 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 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 section 1001.36 applies retroactively to cases not yet final on appeal. ( Id. at p. 791 ; accord, People v. Weaver (2019) 36 Cal.App.5th 1103, 1121, 249 Cal.Rptr.3d 223.) Because it is integral to Frahs , we begin with Lara .
The issue is before the California Supreme Court. (See Frahs, supra , 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220.) Because our Supreme Court denied depublication of Frahs pending review, it "has no binding or precedential effect" but may be cited for persuasive value. (Cal. Rules of Court, rule 8.1115(e)(1), eff. July 1, 2016.)
In Lara , our Supreme Court considered Proposition 57 ( Welf. & Inst. Code, §§ 602, 707, subds. (a) - (b) ), which eliminated the People's ability to directly charge juvenile offenders outside of juvenile court. ( Lara, supra , 4 Cal.5th at pp. 304-305, 228 Cal.Rptr.3d 394, 410 P.3d 22.) After Proposition 57, certain juveniles may still be tried as adults in criminal court, but only after the prosecutor files a motion to transfer, the juvenile court conducts a transfer hearing, and the juvenile court (not the prosecutor) determines the matter should be transferred to adult court. ( Lara , at pp. 303, 305, 228 Cal.Rptr.3d 394, 410 P.3d 22 ; former Welf. & Inst. Code, § 707, subd. (a), as amended by voters, Prop. 57 § 4.2, effective November 9, 2016.) Despite the initiative's language requiring the transfer motion be filed "prior to the attachment of jeopardy" (former Welf. & Inst. Code, § 707, subd. (a) ), the Lara court concluded the 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, 228 Cal.Rptr.3d 394, 410 P.3d 22.) 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, 228 Cal.Rptr.3d 394, 410 P.3d 22.)
Frahs, supra , 27 Cal.App.5th 784 followed Lara , explaining: "[S]imilar to Proposition 57, the mental health diversion program under section 1001.36 does not lessen the punishment for a particular crime. However, for a defendant with a diagnosed mental disorder, it is unquestionably an ‘ameliorating benefit’ to have the opportunity for diversion—and ultimately a possible dismissal—under section 1001.36." ( Frahs, supra , at p. 791.) The Frahs court conditionally reversed the defendant's conviction and sentence, instructing the trial court to conduct a mental health diversion eligibility hearing on remand. ( Id. at p. 792.)
The People contend Frahs was incorrectly decided. They emphasize that section 1001.36 enacted only a pretrial diversion program that is available from the point at which the accused is charged "until adjudication." (§ 1001.36, subd. (c).) They argue that this language unmistakably demonstrates a Legislative intent to apply the statute only if the defendant has not yet been convicted. (See People v. Craine (2019) 35 Cal.App.5th 744, 756, 247 Cal.Rptr.3d 564 ["Pursuant to the Legislature's own terminology, pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced"].)
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 [228 Cal.Rptr.3d 394, 410 P.3d 22] 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.) Because our Supreme Court will soon decide the retroactivity question, we need not belabor the point. Although the People's position has initial appeal, we are ultimately unpersuaded that the Legislature's intent is sufficiently clear to rebut the Estrada inference. At base, the People argue that because section 1001.36 does not apply prospectively to cases after adjudication, it should not apply retroactively under Estrada . Were we to so hold, our decision would be in tension with Lara and other binding authority. (See Lara, supra , 4 Cal.5th at pp. 303-304, 308-309, 228 Cal.Rptr.3d 394, 410 P.3d 22 ; see also People v. Francis (1969) 71 Cal.2d 66, 75, 77-78, 75 Cal.Rptr. 199, 450 P.2d 591 [rejecting argument that because relevant statutory amendment "vests discretionary sentencing power in the trial court, ‘the very nature’ of the amendment leads to the conclusion that it was only intended to apply to cases where sentencing occurred after ... amendment." (italics added) ].)
We agree with the Frahs court that section 1001.36 applies retroactively to cases in which judgment is not yet final. ( Frahs, supra , 27 Cal.App.5th at p. 788.) B.-E.
See footnote *, ante .
DISPOSITION
The judgment is conditionally reversed, and the case is remanded to the trial court with directions to conduct a diversion eligibility hearing, under section 1001.36. If the trial court determines that Hughes qualifies for diversion under section 1001.36, then the court may grant diversion. If Hughes successfully completes diversion, then the trial court shall dismiss the charges.
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. A copy of the amended abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR:
JONES, P. J.
NEEDHAM, J.