People v. Hughes

Filed 9/11/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A154196

v.

JORDAN CHRISTOPHER HUGHES, (Solano County

Super. Ct. No. FCR285903)

Defendant and Appellant.

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 Pitchess2 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.

*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.

1 Undesignated statutory references are to the Penal Code.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

1

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 In the unpublished portion of our opinion, we address Hughes’s remaining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.

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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.

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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),

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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

5

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

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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.) 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, citing In re Estrada (1965) 63 Cal.2d 740 (Estrada).) “The Estrada rule

7

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.)

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.)

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 section 1001.36 applies retroactively

to cases not yet final on appeal.3 (Id. at p. 791; accord, People v. Weaver (2019) 36

Cal.App.5th 1103, 1121.) Because it is integral to Frahs, we begin with Lara.

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.) 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; 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

3The 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.)

8

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 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 [“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, from finding

9

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; see also People v.

Francis (1969) 71 Cal.2d 66, 75, 77-78 [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.4th at p. 788.)

B.

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 Section 1170.18, if treated in the community.” (§ 1001.36,

subd. (b)(1)(F).)

1.

An “unreasonable risk of danger to public safety” means “an unreasonable risk

that the petitioner will commit a new violent felony” described in section 667,

subdivision (e)(2)(C)(iv). (§ 1170.18, subd. (c).) “These violent felonies are known as

‘super strikes’ and include murder, attempted murder, solicitation to commit murder,

assault with a machine gun on a police officer, possession of a weapon of mass

destruction, and any serious or violent felony punishable by death or life imprisonment.”

(People v. Jefferson (2016) 1 Cal.App.5th 235, 242, italics added; accord, § 667, subd.

10

(e)(2)(C)(iv).) In assessing risk, “[t]he court may consider the opinions of the district

attorney, the defense, or a qualified mental health expert, and may consider the

defendant’s violence and criminal history, the current charged offense, and any other

factors that the court deems appropriate.” (§ 1001.36, subd. (b)(1)(F).)

2.

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 12022.53, subdivision (h). In

support, defense counsel attached two reports from Dr. Friedman, who evaluated Hughes

in 2012, before trial, and again in 2018, before resentencing.

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

11

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.)

3.

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 § 12022.53, subd. (h).)

However, those sentencing determinations were made under a different calculus.

(See People v. Burns 38 Cal.App.5th 776, 789.) Section 1001.36, subdivision (b)(1)(F),

provides a high standard for disqualifying dangerousness: the trial court is to consider

whether Hughes’s risk of committing a new super strike would be sufficiently mitigated

by inpatient or outpatient mental health treatment. (See Ibid.) The trial court’s statements

at resentencing are not particularly revealing on this question, which is understandable

given that the trial court has had no opportunity to consider it. The trial court also

expressly recognized that this case presents “unusual circumstances” and found Hughes’s

mental health challenges to be mitigating.

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” (§ 667, subd. (e)(2)(C)(iv)) – and his

history as a juvenile ward. (See People v. Burns, supra, 38 Cal.App.5th at p. 789

[conditional reversal “restores the case to its procedural posture before the jury verdict

for purposes of evaluating [the defendant’s] eligibility for pretrial mental health

diversion”]; Frahs, supra, 27 Cal.App.5th at p. 792 [trial court “shall . . . treat the matter

as though [the defendant] had moved for pretrial diversion after the charges had been

filed, but prior to their adjudication”].) But section 1001.36 does not categorically

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exclude defendants charged with attempted murder or assault with a firearm on a peace

officer from eligibility for pretrial mental health diversion. (§ 1001.36, subd. (b)(2)(A) –

(b)(2)(H) [prohibiting diversion for defendants charged with “[m]urder or voluntary

manslaughter,” rape, possession of a weapon of mass destruction, and other sex

offenses].)

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.)

C.

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.

1.

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

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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.

2.

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

14

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.

D.

Hughes also contends the term imposed for the firearm enhancement (§ 12022.53,

subd. (c)) to count four (assault of Officer Neal) should have been stayed along with the

substantive offense. The People concede the trial court erred (People v. Bui (2011) 192

Cal.App.4th 1002, 1015-1016; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310),

and concede we may modify the sentence because the record does not suggest the trial

court intended to change the sentence in this respect. Accordingly, in the event Hughes is

not eligible for section 1001.36 relief, his convictions and sentence are reinstated, and the

trial court is directed to stay the term imposed on count four’s firearm enhancement under

section 12022.53, subdivision (c).

E.

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”]; § 2900.1.) The parties

agree Hughes had served 2,466 days when he was resentenced on March 26, 2018. In the

event Hughes is found ineligible for diversion or is granted diversion but does not

successfully complete it, we direct the trial court to issue a modified abstract of judgment

reflecting Hughes’s 2,466 actual time credits at resentencing and to otherwise correct the

abstract.

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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.

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_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

NEEDHAM, J.

17

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.

18