People v. Hughes CA1/5

Filed 9/13/23 P. v. Hughes CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent, A166332
v.
JORDAN CHRISTOPHER HUGHES, (Solano County Super. Ct. No.
Defendant and Appellant. FCR-285903)

This is Jordan Christopher Hughes’s third appeal after he
was convicted 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)). In a prior appeal (People v.
Hughes (2019) 39 Cal.App.5th 886, rev. granted Nov. 26, 2019 &
dism. July 29, 2020, S258541 (Hughes II)),2 this court held that
mental health diversion statutes enacted in 2018 (§§ 1001.35,
1001.36) applied retroactively to nonfinal cases, conditionally
reversed Hughes’s judgment, and remanded the matter to the
trial court with directions to conduct a mental health diversion
eligibility hearing. (Hughes II, supra, at pp. 896-897.)

Undesignated statutory references are to the Penal Code.
1

On Hughes’s unopposed request, we took judicial notice of
2

the Hughes II opinion and record, as well as the opinion and
record from his first appeal, People v. Hughes (May 18, 2017,
A145853) [nonpub. opn.] (Hughes I).
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 On remand, the trial court denied Hughes’s motion for
mental health diversion, finding that he would pose an
unreasonable risk of danger to public safety if he were treated in
the community. Hughes now appeals from that order, arguing
that the trial court abused its discretion. We disagree and affirm.

BACKGROUND

A.

On June 26, 2011, Fairfield Police Department Officer Neal
was dispatched to an apartment complex in Fairfield in response
to a call from 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 J.D. returned 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 J.D.’s keys. 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 nor detected movement. After
they “cleared” the rest of the apartment, 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 odor, and she told him
that Hughes smoked marijuana. J.D. also said that the bathroom
door had been unlocked when she left and if it was locked, then
Hughes had probably killed himself. She explained that, when
they fought, Hughes always said he was going to kill himself.

Officer Grimm and Sergeant Oviatt arrived and joined
officers Neal and White. Officer Neal told the other officers about
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the possible firearm and suicide and said they “obviously had to
. . . 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 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. None of
the officers were injured. Hughes eventually 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
always fearful for his life. 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 whoever was
in the apartment, but he did not want to kill anyone (other than
himself). Hughes realized the people were police officers only
after he had been shot.

The defense also called Roger Clark, a retired Los Angeles
County Sheriff’s Deputy and police procedures expert, who
criticized the officers’ decision to kick down the door. Clark
explained that when a suicidal or mentally ill subject is
barricaded in a room where he cannot escape, officers should set

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up a line of communication and attempt to get the subject to come
out on their own. Entering the room by force was too risky.

B.

Hughes was charged with three counts of attempted
murder against Officers Neal, White, and Grimm (§§ 664, 187,
subd. (a); counts one-three). It was further alleged that these
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),
which named Officers Neal, White, and Grimm, and Sergeant
Oviatt as victims. As to all seven counts, it was further alleged
Hughes had personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)).

The jury acquitted Hughes of the attempted murder counts
naming Officers White and Grimm as victims (counts two and
three) but convicted him of 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. The jury found untrue the allegation that the attempted
murder of Officer Neal was premeditated. It 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—for personal
and intentional discharge (§ 12022.53, subd. (c))—were found
true as to each count of conviction.

Hughes was originally sentenced to an aggregate term of 28
years to life (with the possibility of parole).

C.

Hughes appealed. In Hughes I, supra, A145853, this
Division conditionally reversed the judgment and remanded the
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matter for an in camera Pitchess v. Superior Court (1974) 11
Cal.3d 531 review of the involved officers’ 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 firearm
enhancement terms for counts five and six was unauthorized,
given that these counts “(unlike count 4) involved different
victims” than count one.

After issuance of the Hughes I remittitur, the trial court
conducted an in camera review of the officers’ personnel files and
concluded no materials were discoverable. At resentencing, the
trial court declined Hughes’s request to strike the firearm
enhancements (§ 12022.53, subd. (h)) and again imposed the
same aggregate sentence. 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.

Hughes again appealed. In Hughes II, supra, 39
Cal.App.5th at pages 889 and 892, Hughes requested remand of
the matter to allow the trial court to exercise its newfound
discretion to grant mental health diversion (§ 1001.36). Hughes
also argued that, in any event, sentencing errors and clerical
mistakes in the abstract of judgment required modification.
(Hughes II, supra, at p. 889.)

This Division agreed on both points. (Hughes II, supra, 39
Cal.App.5th at pp. 889, 894-896.) Accordingly, the Hughes II
disposition read: “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

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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.” (Hughes II, at pp. 896-897.)

D.

After issuance of the Hughes II remittitur, Hughes filed a
motion for mental health diversion (§ 1001.36). In support of his
motion, Hughes apparently submitted psychological evaluation
reports prepared by his retained neuropsychology expert, Howard
Friedman, Ph.D. Although the precise reports submitted in
support of the diversion motion are not in the record before us,
the Hughes II record contains two of Dr. Friedman’s reports.

The People filed written opposition to Hughes’s motion for
mental health diversion, arguing, among other points, that he
would pose an unreasonable risk of danger to public safety if he
were treated in the community.

At a hearing on the motion, Dr. Friedman was the only
witness. Dr. Friedman testified that he interviewed Hughes, and
performed psychological and neuropsychological testing, in 2012,
2018, and 2021. After the first evaluation, Dr. Friedman
diagnosed Hughes with post-traumatic stress disorder (PTSD)—
triggered by his victimization in an armed robbery in 2010 or
2011—and major depressive disorder.

In 2018, Hughes reported having taken an antidepressant
(Zoloft) between 2012 and 2017. Because he no longer
demonstrated significant depression or paranoia, Dr. Friedman

6
believed Hughes’s depression and PTSD were resolved. Dr.
Friedman was impressed with how much Hughes had improved
between 2012 and 2018. Although Hughes’s intellectual
functioning was low average (23rd percentile) in both 2012 and
2018, his ability to reason and problem solve had improved
significantly (from the bottom one percentile to “a low-average
level”). Dr. Friedman opined that this improvement was due to
treatment of Hughes’s depression and PTSD, as both conditions
affect the ability to exercise judgment, to think clearly, and to
accurately assess information.

By the time of the 2021 evaluation, however, Hughes’s
depression and PTSD had returned; he was no longer in
remission. Dr. Friedman believed the change was due to
Hughes’s discontinuation of treatment. At that point, Dr.
Friedman also added alcohol use disorder and cannabis use
disorder to Hughes’s previous diagnoses. The two substance
abuse disorders were in remission in the prison setting.

Dr. Friedman opined that Hughes would not pose an
unreasonable risk of danger to public safety if treated in the
community. Dr. Friedman explained his belief that it was highly
unlikely Hughes would commit another violent crime because he
showed no evidence of holding aggressive, antisocial, or hostile
attitudes. Dr. Friedman believed the charged offenses resulted
from “unusual circumstances”—i.e., Hughes was suicidal and
suffering from serious mental health conditions that “contributed
to incredibly poor judgment and reasoning ability at the time.”
However, Dr. Friedman also testified that Hughes’s depression
and PTSD could potentially get worse. Relapse into substance
abuse could also aggravate Hughes’s depression and PTSD.

The trial court denied Hughes’s request for diversion.

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 DISCUSSION

A.

Hughes maintains the trial court abused its discretion by
denying his request for mental health diversion. We disagree.

1.

In 2018, while the Hughes II appeal was pending, the
Legislature enacted sections 1001.35 and 1001.36, thereby
creating “a pretrial diversion program” for certain defendants
with mental health disorders. (People v. Frahs (2020) 9 Cal.5th
618, 624 (Frahs).) Section 1001.36 gives the trial court
discretion, if the defendant meets six eligibility requirements, to
grant either temporary or permanent postponement of
prosecution to allow the defendant to undergo mental health
treatment.3 (Former § 1001.36, subds. (a)-(c), as amended by
Stats. 2022, ch. 47, § 38; Frahs, at pp. 626-627.) The statute
applies retroactively to defendants whose judgments are not
final. (Frahs, at p. 624.)

The purposes of the legislation are to keep people with
mental disorders from entering and reentering the criminal
justice system “while protecting public safety,” to allow local
discretion in developing and implementing diversion across a
continuum of care settings, and to meet the needs of those with
mental health disorders. (§ 1001.35, italics added.) “Diversion

3 After the trial court held its diversion eligibility hearing in
this case, the Legislature further amended section 1001.36 by
making the former “public safety” eligibility requirement a
suitability criterion. (§ 1001.36, subds. (b), (c), as amended by
Stats. 2022, ch. 735, § 1.) However, because a trial court must
still deny diversion if the defendant does not meet the public
safety criterion (§ 1001.36, subds. (a), (c)(4)), the subsequent
amendments do not substantively impact the question before us
on appeal. For clarity, we hereafter refer to the statutory
subdivisions as they existed at the time of Hughes’s hearing.
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can be ‘viewed as a specialized form of probation, . . . [that] is
intended to offer a second chance to offenders who are minimally
involved in crime and maximally motivated to reform.’ ” (People
v. Qualkinbush (2022) 79 Cal.App.5th 879, 886.)

“As originally enacted, section 1001.36 provided that a trial
court may grant pretrial diversion if it finds all of the following:
(1) the defendant suffers from a qualifying mental disorder; (2)
the disorder played a significant role in the commission of the
charged offense; (3) the defendant’s symptoms will respond to
mental health treatment; (4) the defendant consents to diversion
and waives his or her speedy trial right; (5) the defendant agrees
to comply with treatment; and (6) the defendant will not pose an
unreasonable risk of danger to public safety if treated in the
community. (Former § 1001.36, subd. (b)(1)–(6) [as added by
Stats. 2018, ch. 34, § 24].)” (Frahs, supra, 9 Cal.5th at pp. 626–
627, italics added.) Section 1001.36 was later amended to make
defendants charged with certain crimes, including murder,
voluntary manslaughter, and rape, categorically ineligible for
diversion. (Former § 1001.36, subd. (b)(2), as amended by Stats.
2018, ch. 1005, § 1; Frahs, supra, at p. 627.) Defendants charged
with attempted murder or assault with a firearm on a peace
officer are not categorically excluded. (Former § 1001.36, subd.
(b)(2), as amended by Stats. 2018, ch. 1005, § 1.)

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.”
(Former § 1001.36, subd. (c)(1)(A), as amended by Stats. 2022, ch.
47, § 38.) The court may then grant diversion and refer the
defendant to an approved treatment program for no longer than
two years. (Former § 1001.36, subds. (c)(1)(B), (c)(3), as amended
by Stats. 2022, ch. 47, § 38.) If the defendant “satisfactorily”
completes the diversion program, the court shall dismiss the

9
criminal charges. (Former § 1001.36, subd. (e), as amended by
Stats. 2022, ch. 47, § 38.)

We review the trial court’s ruling on mental health
diversion for abuse of discretion. (See People v. Whitmill (2022)
86 Cal.App.5th 1138, 1147 (Whitmill); People v. Bunas (2022) 79
Cal.App.5th 840, 848.) “ ‘A court abuses its discretion when it
makes an arbitrary or capricious decision by applying the wrong
legal standard [citations], or bases its decision on express or
implied factual findings that are not supported by substantial
evidence.’ ” (Whitmill, supra, at p. 1147.)

2.

Hughes asserts that the trial court applied the wrong
standard in assessing the risk to public safety. The record does
not support his position.

Section 1001.36 defines “unreasonable risk of danger to
public safety” by reference to section 1170.18. (Former § 1001.36,
subd. (b)(1)(F), as amended by Stats. 2022, ch. 47, § 38; People v.
Moine (2021) 62 Cal.App.5th 440, 449-450.) Section 1170.18, in
turn, defines “ ‘unreasonable risk of danger to public safety’ ” as
“an unreasonable risk that the petitioner will commit a new
violent felony within the meaning of” section 667, subdivision
(e)(2)(C)(iv). (§ 1170.18, subd. (c); Whitmill, supra, 86
Cal.App.5th at p. 1149.) Qualifying 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, any
serious or violent felony punishable by death or life
imprisonment, and any sexually violent offenses or sexual offense
committed against minors under the age of 14. (§ 667, subd.
(e)(2)(C)(iv); People v. Jefferson (2016) 1 Cal.App.5th 235, 242.)

Hughes does not meet his burden of demonstrating that the
trial court used the wrong standard. (See People v. Pacheco

10
(2022) 75 Cal.App.5th 207, 213 [appellant bears burden to
demonstrate abuse of discretion]; People v. Jacobo (1991) 230
Cal.App.3d 1416, 1430 [reviewing courts presume that trial court
knew and applied correct law, unless the appellant affirmatively
demonstrates otherwise].) He does not cite any portion of the
record that shows the court analyzed the risk to public safety
under any standard other than what we have described above.

In fact, the People explicitly argued that Hughes’s charged
offenses and prior robbery offenses (committed as a juvenile)
demonstrate that he poses an unreasonable risk to public safety
because, if treated in the community, he was at unreasonable risk
to commit a super strike. In finding that Hughes’s treatment in
the community presents an unreasonable risk, the trial court
explicitly referenced the underlying charges—three of which
themselves qualify as “super strikes”—and the risk that he would
commit similar offenses in the future. (§ 667, subd. (e)(2)(C)(iv);
see People v. Qualkinbush, supra, 79 Cal.App.5th at p. 892, fn. 11
[court “must treat the matter as if the charges . . . have not yet
been adjudicated”].)

The trial court explained: “[W]hat concerns me is not just
the regression . . . [but also] how [Hughes], when he is in crisis
faced with various stressors, whether it’s substance abuse related
or purely some other type of psychological stressors or conditions
he’s suffering from, it’s . . . how he actually presents to the
community. . . . [¶] [Hughes] didn’t just . . .try to kill himself that
day. . . . He had the loaded firearm, which he ultimately did
discharge, not to himself, but in the direction of the officers. . . .
[¶] . . . I do believe not just the crime itself but combined with the
history[,] his recent regression . . . [, and] his juvenile history,
which was close in time to [the charged] event. . . . [¶] . . . He still
presents a danger. Not that he’s out there trying to harm
strangers, but when he engages in episodes such as he’s had
before with his mental condition continuing albeit with some

11
improvement, the unreasonable risk to public safety remains.”
The court concluded, “I don’t believe the risk is low enough to
grant the motion.”

There is no affirmative indication that the trial court
applied an incorrect legal standard.

3.

Nor do we agree with Hughes that substantial evidence
does not support the trial court’s implicit finding that his
treatment in the community presents an unreasonable risk that
he will commit a new super strike.

In assessing the risk, the trial court may consider the
opinions of the district attorney, the defense, and qualified
mental health experts, as well as the defendant’s violence and
criminal history, the circumstances of the charged offense, and
any other factors the court deems appropriate. (Former § 1001.36,
subd. (b)(1)(F), as amended by Stats. 2022, ch. 47, § 38; People v.
Bunas, supra, 79 Cal.App.5th at pp. 862, 866-867; People v.
Moine, supra, 62 Cal.App.5th at p. 450.)

Here, in implicitly finding that it was not satisfied
community mental health treatment would sufficiently mitigate
the risk Hughes would commit a super strike, the trial court
explicitly considered the evidence of the charged offenses (three of
which were undisputedly super strikes, and all seven of which
were undisputedly violent felonies involving the discharge of a
firearm), Hughes’s juvenile history (which undisputedly involved
the commission of two violent felonies), and Hughes’s treatment
history (to which Dr. Friedman testified). On this record, Hughes
has not shown that the trial court’s finding is unsupported by
substantial evidence.

Nor did the trial court err by ignoring Dr. Friedman’s
uncontradicted public safety opinion, as Hughes suggests. The
trial court (in its role as fact finder) has no obligation to accept
12
even unanimous expert opinion. (In re Scott (2003) 29 Cal.4th
783, 823.) The value of an expert’s testimony depends on the
material and reasoning on which the opinion is based. (Ibid.)

Here, the trial court could reasonably conclude that the
value of Dr. Friedman’s public safety opinion was limited. With
respect to the charged offenses, Hughes himself told Dr.
Friedman that, although he was “uncertain,” he thought he fired
his gun at the bathroom door because he wanted the police to kill
him. Dr. Friedman’s explanation of why such a situation was
unlikely to reoccur was not particularly persuasive. Although Dr.
Friedman testified that Hughes was amenable to treatment, he
failed to appropriately explain how that conclusion squared with
the fact that, even in the highly structured prison environment,
Hughes discontinued his medication and allowed his symptoms to
return. The defense expert also recognized that Hughes’s
depression and PTSD could worsen and would very likely be
aggravated—and could again lead to crisis—if he were to relapse.
Furthermore, Hughes had not maintained any period of sobriety
between the age of 14 and his arrest.

On this record, it was not unreasonable for the trial court
to reject Dr. Friedman’s ultimate opinion and to infer that
community treatment would present an unreasonable risk that
Hughes would again be in crisis and again fire a gun at others—
thereby potentially committing a new super strike offense
(murder). (Cf. People v. Pacheco, supra, 75 Cal.App.5th at pp.
209-210, 213-214; People v. Jefferson, supra, 1 Cal.App.5th at p.
245 .) No abuse of discretion is shown.

DISPOSITION

The order denying mental health diversion is affirmed. If it
has not already done so, the trial court is directed to reinstate
Hughes’s convictions and sentence (as modified), in accordance
with our disposition in Hughes II, supra, 39 Cal.App.5th at pages
896-897.
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 ______________________
BURNS, J.

We concur:

____________________________
JACKSON, P.J.

____________________________
CHOU, J.

A166332

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