People v. Hughes CA2/3 ( 2024 )

Filed 2/6/24 P. v. Hughes CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B325381
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA134923
v.
LEROY HUGHES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Theresa A. Patterson, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 2015, defendant and appellant Leroy Hughes pleaded no
contest to one count of attempted murder and admitted the
personal use of a firearm during the commission of that crime. In
2022, Hughes filed a petition for resentencing under former Penal
Code section 1170.95.1 The trial court summarily denied the
petition. On appeal, Hughes contends that the court improperly
relied on the preliminary hearing transcript and his trial
counsel’s concession that he was the actual shooter to deny his
petition without holding an evidentiary hearing. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. Proceedings Related to the Underlying Offense
1.1. Felony Complaint
On September 4, 2014, the Los Angeles County District
Attorney filed a felony complaint alleging that Hughes committed
four counts of willful, deliberate and premeditated attempted
murder (§ 664/187, subd. (a)). It further alleged that Hughes
personally and intentionally discharged a firearm (§ 12022.53,
subds. (c), (d)) and personally used a firearm (id., subd. (b)).
1.2. Preliminary Hearing
A preliminary hearing took place on November 13, 2014.
The People called Semaj Brown, Mastin Hunter, and Officers
1 All undesignated statutory references are to the Penal Code. Hughes
filed his petition for resentencing under former section 1170.95, which
the Legislature later renumbered to section 1172.6 without
substantive change. (Stats. 2022, ch. 58, § 10.) We hereafter cite to
section 1172.6 for ease of reference.
2
Manuel Mendieta and Peter Verschueren as witnesses. Brown
testified that, on May 4, 2014, he and two others were passengers
in a car driven by Hunter when another car began chasing them.
After their car crashed, Brown got out. As he began running in an
alley, he heard three gunshots. He was subsequently struck by a
car. He was not certain whether it was the same car that chased
them but testified that it appeared to be. He stated that he did
not see anyone in the court that was in the area on the day of the
shooting.
Hunter denied seeing anyone in court who shot him in May
of 2014. He testified that he was shot while trying to escape
another car, but that he did not remember when the shooting
took place or any details surrounding it. He also testified that he
did not recall speaking with an officer, viewing any photographs,
or circling any person in the photographs. He denied being able to
see the photographs in the exhibit placed in front of him and
denied that he circled Hughes’s photograph. He further testified
that he did not remember having a conversation with Officer
Verschueren. Hunter also stated on cross-examination that he
never saw who shot him.
Officer Mendieta, the arresting officer, testified that
Hughes had admitted to him that he was a member of the Front
Street Crips. Hunter was a member of the Back Street Crips, a
rival gang to the Front Street Crips. Hughes’s brother, who was
also a member of the Front Street gang, was the victim of a
shooting that took place on May 4, 2014. Officer Mendieta
testified that, hypothetically, if a gang member is shot and his
brother, also a member of the same gang, shoots another person
ten minutes later, he would believe the second crime was done for
the benefit of a criminal street gang.
3
Officer Verschueren, the investigating officer, testified that
he was assigned to investigate a shooting that took place on
May 4, 2014. He spoke with Hunter as part of his investigation
and testified that Hunter told him that he was stopped at a red
light when a dark colored vehicle pulled up alongside the car he
was driving. There was an exchange of words and Hunter
believed that the front passenger of the other car was grabbing
for a handgun or other weapon. Hunter stated that he turned at
the light and attempted to escape and ultimately crashed into a
van. Hunter told Officer Verschueren that he then got out of the
car and ran to an alley, where he was shot. Officer Verschueren
showed Hunter a photographic lineup consisting of six
photographs and Hunter indicated that the individual in position
two, Hughes, was the shooter. Officer Verschueren had Hunter
circle Hughes’s photograph and initial and date it.
Officer Verschueren further testified that he spoke with
Tyshay Galloway, who had allowed Hunter, her boyfriend, to
drive her car. She told Officer Verschueren that they turned at
the stoplight and accelerated quickly before crashing into a van.
Galloway hid behind the car as a dark-colored sedan turned onto
the street. She observed the right front passenger extend his
hand out the window while holding a firearm and stated that
shots were fired.
1.3. Information
In an information dated December 1, 2014, the Los Angeles
County District Attorney charged Hughes with four counts of
attempted murder (§ 664/187, subd. (a)) and alleged that Hughes
personally and intentionally discharged a firearm (§ 12022.53,
subds. (c), (d)) and personally used a firearm (id., subd. (b)).
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1.4. Plea and Sentencing
On July 24, 2015, Hughes pleaded no contest to the
attempted murder of Hunter and admitted the personal use of a
firearm under section 12022.53, subdivision (b). Hughes’s counsel
stipulated to “a factual basis based on the police reports,
preliminary hearing transcript and additional discovery.” The
court accepted Hughes’s plea. Hughes was sentenced to a total of
15 years pursuant to the plea agreement (five years for
attempted murder with a 10-year enhancement for personal use
of a firearm).
2. Petition for Resentencing
In March 2022, Hughes filed a form petition for
resentencing in which he checked the boxes stating that a
complaint was filed against him that allowed the prosecution to
proceed under the natural and probable consequences doctrine,
he was convicted of attempted murder, and he could not
presently be convicted of attempted murder under sections 188
and 189. Hughes also requested the appointment of counsel. In
response, the prosecutor argued that Hughes was ineligible for
resentencing because he was prosecuted as a direct perpetrator,
not on any theory that required malice to be imputed. In the
reply brief filed by his counsel, Hughes did not refute that he was
prosecuted as a direct perpetrator but recited the legal standard
for a petition for resentencing and asserted, without discussion,
that he established a prima facie case for relief.
At oral argument, the prosecutor submitted on the briefing.
The attorney appearing on Hughes’s behalf stated: “All I would
indicate for the record is that I was instructed by Ms. Kelley
[Hughes’s counsel at the plea hearing] that as the client is the
5
actual shooter in this matter we are submitting on the motion.”
The court stated: “That’s correct as [the prosecutor] pointed out
and that is clear from the court file . . . . Based on the fact that he
is the actual shooter, he is ineligible for the relief he is
requesting; therefore his petition is denied.”
Hughes timely appealed.
DISCUSSION
1. Legal Background
As amended by Senate Bill No. 775, section 1172.6,
subdivision (a) provides: “A person convicted of felony murder or
murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder,
or manslaughter conviction vacated and to be resentenced on any
remaining counts.”
An offender must file a petition in the sentencing court
averring that: “(1) A complaint, information, or indictment was
filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the
natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
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or attempted murder[;] [¶] [and] (3) The petitioner could not
presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1172.6, subd. (a)(1)–(3); see also id., subd. (b)(1)(A).)
Additionally, the petition shall state “[w]hether the petitioner
requests the appointment of counsel.” (Id., subd. (b)(1)(C).)
“Upon receiving a petition in which the information
required by this subdivision is set forth or a petition where any
missing information can readily be ascertained by the court, if
the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner.” (§ 1172.6, subd. (b)(3).) The
prosecutor shall file a response within 60 days of the service of
the petition, and the petitioner may file a reply within 30 days of
the response. (Id., subd. (c).) When briefing has been completed,
“the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief.” (Ibid.) “If the
petitioner makes a prima facie showing that the petitioner is
entitled to relief, the court shall issue an order to show cause.”
(Ibid.)
In determining whether a petitioner has made a prima
facie showing of entitlement to relief, the trial court’s inquiry will
necessarily be informed by the record of conviction, which will
facilitate the court in distinguishing “petitions with potential
merit from those that are clearly meritless.” (People v. Lewis
(2021) 11 Cal.5th 952, 971 (Lewis).) The court is prohibited from
engaging in “ ‘factfinding involving the weighing of the evidence
or the exercise of discretion.’ ” (Id. at p. 972.) Rather, the court
must “ ‘ “take[ ] [the] petitioner’s factual allegations as true” ’ ”
and make a “ ‘ “preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
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allegations were proved.” ’ ” (Id. at p. 971.) Summary denial of
the petition is appropriate where the record of conviction
establishes the petitioner is ineligible for resentencing as a
matter of law. (People v. Estrada (2022) 77 Cal.App.5th 941, 945;
People v. Coley (2022) 77 Cal.App.5th 539, 548.)
We independently review the trial court’s determination
that the petitioner failed to make a prima facie showing for relief.
(People v. Harden (2022) 81 Cal.App.5th 45, 52; People v. Eynon
(2021) 68 Cal.App.5th 967, 975.) A denial at this stage is
appropriate if the record of conviction demonstrates that the
petitioner is ineligible for relief as a matter of law. (Lewis, supra,
11 Cal.5th at p. 960.)
2. Analysis
We agree with Hughes that the information and his plea of
no contest to the generic crime of attempted murder did not
admit facts supporting liability under any particular theory. In
agreeing to the plea, Hughes did not admit to or stipulate to any
particular theory of attempted murder. (People v. Flores (2022) 76
Cal.App.5th 974, 987 (Flores).) Hughes’s admission that he
personally used a firearm under section 12022.53, subdivision (b)
also did not definitively establish that he was the actual shooter.
As the Supreme Court explained in People v. Jones (2003) 30
Cal.4th 1084, 1119–1120, a finding the defendant “personally
used a firearm in the commission” of a felony murder “would not
in itself prove defendant was the actual killer” because if, for
example, two coparticipants in a felony “display guns” for
intimidation, and one “shoots and kills a victim, both
[participants] could be found to have personally used a gun in . . .
the felony murder, even though only one is the actual killer.”
8
However, the record of conviction was not limited to the
information and plea. The preliminary hearing transcript is also
part of that record and may be considered at the prima facie
stage, at least when it is stipulated to as the factual basis of the
plea, as was the case here. (People v. Davenport (2021) 71
Cal.App.5th 476, 481–482 [holding that preliminary hearing
transcript is part of record of conviction but trial court erred in
considering facts therein when petitioner did not stipulate to it as
the factual basis for the plea]; but see People v. Pickett (2023) 93
Cal.App.5th 982, 992–993 [rejecting argument that preliminary
hearing transcript may only be considered when stipulated to as
the factual basis for a plea].) The trial court determined, based on
its review of the record of conviction and the concession of
Hughes’s counsel, that Hughes was the actual shooter. Hughes
did not discuss the preliminary hearing transcript in any depth
in his opening brief and did not mention his trial counsel’s
concession in that brief.
On reply, Hughes contends that section 1172.6 does not
require him to rebut preliminary hearing evidence at the prima
facie stage. There is a split of authority as to the import of the
preliminary hearing transcript in determining a petitioner’s
eligibility for resentencing under section 1172.6. In People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1161, the court noted that
the preliminary hearing transcript contained no argument as to
the applicability of the natural and probable consequences
doctrine and nothing indicated that the court considered that
theory in holding the petitioner to answer. In affirming the denial
of the petition for resentencing, the court explained: “If [the
petitioner] had gone to trial, and the parties had presented no
argument and the trial court had given no instructions regarding
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felony murder or murder under a natural and probable
consequences theory, there is no question [the petitioner] would
be unable to make a prima facie showing that he is entitled to
relief under section 1170.95. [Citation.] [The petitioner’s] murder
conviction after a guilty plea should not be accorded less weight
and finality than a murder conviction after a jury trial, as the
transcripts from the preliminary and plea hearings demonstrate
[the petitioner] was convicted of second degree murder as a direct
aider and abettor.” (Id. at p. 1167.)
The court in People v. Rivera (2021) 62 Cal.App.5th 217(Rivera) declined to follow Nguyen. The court agreed with Nguyen
that a “murder conviction after a plea has just as much ‘weight
and finality’ as one after a trial [citation]” but disagreed that the
“theory underlying each type of conviction can be ascertained
with the same degree of certainty.” (Id. at p. 236.) “The fact that a
petitioner was not ‘convicted of felony murder or murder under a
natural and probable consequences theory’ [citation] at trial may
be conclusively determined if, for example, the jury did not
receive instructions on either theory.” (Ibid.) “In contrast, when a
petitioner has entered a plea to murder after being charged by
information or indicted, the record of conviction will generally
lack any comparable assurance of the basis for the conviction.”
(Id. at p. 237.) “And while a grand jury receives instructions,
those instructions do not fix the theories on which a case may be
prosecuted or establish the basis for a postindictment plea.”
(Ibid.) The court rejected the argument that the absence of any
mention of an underlying offense that could support felony
murder or murder under the natural and probable consequences
doctrine in the preplea record precluded relief as a matter of law.
(Id. at p. 238.) In the Rivera court’s view, “when a petitioner
10
disputes that the evidence presented at a preplea proceeding
demonstrates his or her guilt under a still-valid theory of murder,
and no ‘ “readily ascertainable facts” ’ definitively prove
otherwise, a trial court cannot deny a petition at the prima facie
stage without resorting to ‘ “factfinding involving the weighing of
evidence or the exercise of discretion.” ’ [Citation.]” (Ibid.)
Thus, the court in Rivera held “that a defendant who
stipulated to a grand jury transcript as the factual basis of the
plea may make a prima facie showing of eligibility for relief by
identifying a scenario under which he or she was guilty of murder
only under a now-invalid theory, even if the record of conviction
does not demonstrate that the indictment rested on that
scenario.” (Rivera, supra, 62 Cal.App.5th at p. 224.) In Rivera,
the petitioner “not only filed a facially sufficient petition but,
with the assistance of counsel, offered a theory under which the
evidence presented to the grand jury was consistent with his guilt
of murder under the natural and probable consequences doctrine,
based upon an intent to participate in a target offense of assault.
[Citation.] In doing so, he created a factual dispute that cannot be
resolved at the prima facie stage since nothing in the record
definitively foreclosed his theory.” (Id. at p. 239.)
In People v. Patton (2023) 89 Cal.App.5th 649 (Patton), a
panel of this Division determined that the petitioner, who was
convicted of attempted murder, was not entitled to relief under
section 1172.6 as a matter of law where he failed to controvert
preliminary hearing transcript testimony of police officers who
viewed video surveillance of the crime and concluded that the
petitioner was the actual shooter and had acted alone. (Patton, at
pp. 652–653, 657–658.) The Patton court observed that the
petitioner “never offered any theory to support his implicit
11
contention now that he was an accomplice and not the person
who actually shot [the victim]” before the trial court and, on
appeal, never “even suggested what facts he has to demonstrate
that someone else shot [the victim] and he was merely an
accomplice.” (Id. at p. 657.) It further concluded that, because the
testimony of the officers was uncontroverted, no factfinding or
weighing of evidence was required to conclude that the petitioner
was not entitled to relief as a matter of law. (Id. at p. 658.)2 On
June 28, 2023, the Supreme Court granted a petition for review
of Patton and denied a request for its depublication. (People v.
Patton (June 28, 2023, S279670) __Cal.5th__ [2023 Cal. Lexis
3636].)
Because Hughes was convicted of attempted murder, he
can only seek relief under section 1172.6 if he was convicted
under the natural and probable consequences doctrine, which
provided that “ ‘an accomplice is guilty not only of the offense he
or she directly aided or abetted (i.e., the target offense), but also
of any other offense committed by the direct perpetrator that was
the “natural and probable consequence” of the crime the
accomplice aided and abetted (i.e., the nontarget offense).’ ”
(People v. Curiel (2023) 15 Cal.5th 433, 449.) Hughes had no
codefendant, nor was any target offense discussed at the
2 We perceive no inconsistency between the decisions in Rivera and
Patton. In Patton, supra, 89 Cal.App.5th 649, the petitioner filed a
form petition and no reply brief. (Id. at p. 654.) The court in Rivera
expressly left “open the possibility that if a petitioner who entered a
plea to murder after being indicted submits a form petition making the
required declarations but does not in any way contest the evidence
presented to the grand jury, a trial court can rely on the grand jury
transcript to deny the petition before holding an evidentiary hearing.”
(Rivera, supra, 62 Cal.App.5th at p. 238.)
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preliminary hearing. Accepting for purposes of argument that the
absence of any mention of the natural and probable consequences
doctrine or any target offense in the preplea record does not
preclude Hughes from seeking relief under section 1172.6 as a
matter of law (Rivera, supra, 62 Cal.App.5th at p. 238), the
Rivera court nevertheless indicated that, in order to make a
prima facie showing of eligibility for relief, a petitioner must
identify “a scenario under which he or she was guilty of murder
only under a now-invalid theory, even if the record of conviction
does not demonstrate that the indictment rested on that
scenario.” (Id. at p. 224; see also People v. Pickett, supra, 93
Cal.App.5th at p. 993 [petitioner failed to make prima facie case
of eligibility for relief where “there [was] no allegation or
evidence of an accomplice in the killing”].) After counsel was
appointed, Hughes did not identify any theory as to how the
evidence presented at the preliminary hearing was consistent
with guilt for attempted murder under the natural and probable
consequences doctrine. The only factual assertion made below by
Hughes or his counsel was that he was the actual shooter.
Hughes points out in his reply brief that Hunter recanted
his prior identification of Hughes as the shooter, as to which
Officer Verschueren testified,3 and therefore argues that the
3 Section 1172.6, subdivision (d)(3), which was in effect at the time of
the proceedings below (Stats. 2021, ch. 551, § 2), provides that
“hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of [s]ection 872 shall be excluded from the
[evidentiary] hearing as hearsay, unless the evidence is admissible
pursuant to another exception to the hearsay rule.” Section 872,
subdivision (b) created a new exception to the hearsay rule which
allows a qualified investigative officer to testify at a preliminary
hearing about “otherwise inadmissible hearsay statements made to
13
court’s conclusion that he was the actual shooter was disputed
and required judicial factfinding that is impermissible at the
prima facie stage. This argument would be well taken if not
raised for the first time on reply. (People v. Rangel (2016) 62
Cal.4th 1192, 1218–1219 [defendant forfeits an argument not
raised until the reply brief].) Nevertheless, even accepting that
Hughes was not required to identify a scenario under which he
was convicted under a now-impermissible doctrine before the
trial court and that the court erred in relying on facts in the
preliminary hearing transcript to summarily deny his petition,
Hughes fails to establish that any error was prejudicial when the
court also relied on the express concession of his trial counsel
that he was the actual shooter. We evaluate any error in denying
a petition under section 1172.6 under the harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836. (Lewis,
supra, 11 Cal.5th at pp. 957–958, 973–974; Flores, supra, 76
Cal.App.5th at p. 986.)
“Oral statements of counsel may be treated as judicial
admissions if they were intended to be such or reasonably
construed by the court or the other party as such. This rule,
however, does not apply ‘to admissions which are improvidently
him by persons he has interviewed.” (Tu v. Superior Court (1992) 5
Cal.App.4th 1617, 1622.) As section 1172.6, subdivision (d)(3) prohibits
the use of hearsay evidence admitted under section 872, subdivision (b)
at an evidentiary hearing, “we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for
resentencing at the prima facie stage.” (Flores, supra, 76 Cal.App.5th
at p. 988, fn. omitted; Patton, supra, 89 Cal.App.5th at p. 652, fn. 2.)
However, Hughes forfeited any hearsay objection to Officer
Verschueren’s testimony by failing to raise it below or in his briefing
on appeal. (People v. Eubanks (2011) 53 Cal.4th 110, 142.)
14
or unguardedly made, or which are in any degree ambiguous.’ ”
(People v. Jackson (2005) 129 Cal.App.4th 129, 161, fns. omitted.)
After reviewing the prima facie hearing transcript, we conclude
that the concession was unambiguous, there are no indicia that it
was unguardedly made, and it was reasonable for the court to
interpret the statement of Hughes’s trial counsel as a judicial
admission that he was the actual shooter.4 Hughes argues that
“the preliminary hearing evidence was not so unequivocal as to
warrant trial counsel’s characterization of that evidence as a
dispositive showing that appellant was the actual shooter,” but
does not meaningfully challenge that counsel’s statement
constituted a judicial admission. Because there was no dispute at
the prima facie hearing that Hughes was the actual shooter, he
was not entitled to relief under section 1172.6 as a matter of law.
(Patton, supra, 89 Cal.App.5th at p. 657 [petitioner who was “sole
and actual perpetrator of [] attempted murder” was ineligible for
resentencing as a matter of law].)
4 In People v. Jackson, supra, 129 Cal.App.4th 129, “[t]he stipulation at
issue occurred at the end of a lengthy and contentious trial when
counsel for both sides and the court were undoubtedly fatigued.” (Id. at
p. 161.) Moreover, “having vigorously fought a motion to suppress the
wiretap evidence at the start of trial it does not seem reasonable
Jackson’s counsel would concede the issue at the close of trial and
deliberately throw away a potential winning issue should there be an
appeal.” (Ibid.) Thus, it appeared that the counsel intended only “to
stipulate the trial court had found the [wiretap] order lawful, not to
concede its lawfulness.” (Ibid.) Here, the transcript of the prima facie
hearing spans only two and a half pages. It does not appear that the
concession was inadvertent when Hughes’s counsel stated that she was
instructed by the attorney who represented Hughes at the plea hearing
and prepared his reply brief to submit on the briefing because Hughes
was the actual shooter.
15
Hughes argues that, if his trial counsel’s concession is
considered a binding admission, he had ineffective assistance of
counsel. Our Supreme Court recently confirmed that “ ‘there is no
constitutional right to the effective assistance of counsel’ in state
postconviction proceedings.” (People v. Delgadillo (2022) 14
Cal.5th 216, 226; see also Lewis, supra, 11 Cal.5th 952, 972
[“There is no unconditional state or federal constitutional right to
counsel to pursue collateral relief from a judgment of
conviction.”].) However, it previously concluded that, once a
substantial state created right has been conferred, due process
protects the effective exercise of that right to ensure that the
right “ ‘ “is not arbitrarily abrogated.” ’ ” (Wilson v. Superior
Court of Los Angeles County (1978) 21 Cal.3d 816, 823.) Several
courts have therefore held that a right to counsel conferred by
statute is protected by due process and implicitly includes the
right to effective assistance. (See, e.g., People v. Hill (2013) 219
Cal.App.4th 646, 652–653 [“although the right to effective
assistance of counsel in SVPA proceedings is statutory, that right
is protected by the due process clause of the federal
Constitution”]; Conservatorship of David L. (2008) 164
Cal.App.4th 701, 710 [even if a proposed conservatee has no
constitutional right to effective assistance of counsel, once such a
right has been conferred by statute, it is protected by the due
process clause of the federal Constitution].)
Assuming that Hughes had a constitutional right to
effective counsel, Hughes forfeited this argument by failing to
raise it in his opening brief. (See People v. Rangel, supra, 62
Cal.4th at pp. 1218–1219; People v. Duff (2014) 58 Cal.4th 527,
550, fn. 9 [declining to resolve ineffective assistance of counsel
claim raised for the first time in reply brief]; People v. Bona
16
(2017) 15 Cal.App.5th 511, 517 [“ineffective assistance claim is
forfeited because it was not raised in the opening brief”].)5
5 In his opening brief, Hughes broadly asserted that the denial of his
petition without an evidentiary hearing violated his due process rights.
He did not argue that his due process rights were violated because of
ineffective assistance of counsel, and thus any suggestion that the
earlier argument preserved the later one is unpersuasive. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656 [matters that lack
adequate legal discussion are deemed forfeited].) His earlier due
process argument also fails, as a defendant who is ineligible for relief
under section 1172.6 as a matter of law has no “expectation of
receiving a certain right or benefit” under that provision such that the
denial of an evidentiary hearing is a violation of due process.
17
DISPOSITION
The order denying Hughes’s petition under section 1172.6
is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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