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People v. Hughes

California Court of Appeals, First District, Fifth Division

September 11, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
JORDAN CHRISTOPHER HUGHES, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

          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.

          BURNS, J.

         A jury convicted Jordan Christopher Hughes of attempted murder of a peace officer (Pen. Code, §§ 187 subd. (a), 664)[1] 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) (nonpub. opn.) (Hughes I)), this Division conditionally reversed Hughes's convictions and remanded for the trial court to conduct an in camera Pitchess[2] 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.

         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 In the unpublished portion of our opinion, we address Hughes's remaining arguments and agree that a conditional reversal and remand is appropriate so the trial court may consider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 ...


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