People v. Sharrieff CA3

Filed 7/27/22 P. v. Sharrieff CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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 purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093701
Plaintiff and Respondent, (Super. Ct. No. 17FE009227)
v.
TAJMAL SHARRIEFF,
Defendant and Appellant.
Defendant Tajmal Sharrieff was convicted by a jury of seven counts of committing
lewd and lascivious acts with a child under the age of 14 in violation of Penal Code
section 288, subdivision (a).1 He raises three arguments in this appeal: (1) That his
constitutional rights were violated because the court admitted evidence of two prior
sexual offenses pursuant to Evidence Code section 1108; (2) that he should have been
1 Undesignated statutory references are to the Penal Code.
1
charged with one count of continuous sexual abuse of a child (§ 288.5) rather than seven
counts of lewd and lascivious acts with a child (§ 288, subd. (a)); and (3) that
approximately $6,000 in restitution and fees must be stricken or stayed unless and until
the court determines whether he has the ability to pay. We reject all three arguments and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant’s appeal raises primarily legal issues, the factual background is
abbreviated.
In 2007, defendant began living with A.C. and her 7-year-old son Isaiah.2
Defendant lived with A.C and Isaiah for about a year and a half. Over the course of that
year and a half, defendant sexually molested Isaiah on multiple occasions.
Isaiah did not tell his mother about the incidents until 2015. Following the
disclosure, his mother put him in therapy, and the therapist disclosed the abuse
allegations to law enforcement. Isaiah spoke with a detective in August 2016, and told
the detective he had been forced to engage in sex acts with defendant.
Defendant was charged with seven counts of lewd and lascivious acts with a child
under the age of 14 in violation of section 288, subdivision (a). All counts were alleged
to have occurred between August 12, 2007, and August 11, 2009. In addition, three prior
felony convictions were alleged under the three strikes law, one of which was for rape by
force within the meaning of sections 667.61, subdivision (d)(1) and 667.71.3 Defendant
pled not guilty and denied all allegations.
2 Pursuant to California Rules of Court, rule 8.90(b)(4), (10), (11) we identify sexual
abuse victims by their first names or initials.
3 The three prior convictions were for rape by force in 1981; assault with intent to
commit rape in 1981; and first degree residential burglary in 1986.
2
Defendant’s first trial ended in a mistrial when the jury deadlocked after three
days of deliberations. Following a second trial he was convicted on all counts, and the
prior strike allegations were found to be true. On February 26, 2021, he was sentenced to
seven consecutive terms of 75 years to life plus an additional 70 years for the prior
serious felony enhancements. The court also imposed over $6,000 in various fines and
fees.
Defendant filed a timely notice of appeal.4
DISCUSSION
I
Prior Conduct Evidence
In 1981, when defendant was 18, he was convicted of two sexual offenses (assault
with attempt to commit rape and forcible rape) involving different women. Prior to the
trial in this case, the prosecutor sought to introduce evidence of both offenses pursuant to
Evidence Code section 1108. Defendant objected, arguing the offenses were too remote
in time and involved different circumstances. The prosecutor agreed to present the prior
offenses through a stipulation and certified records of the convictions rather than through
testimony from the victims. The trial court overruled defendant’s objection and admitted
the evidence.
Defendant argues the admission of this evidence violated his due process rights.
He forthrightly acknowledges, however, that our Supreme Court ruled otherwise in
People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).
Evidence Code section 1101 sets forth the general rule that “evidence of a
person’s character or a trait of his or her character (whether in the form of an opinion,
4 The notice of appeal in this case was filed on March 2, 2021. After multiple extensions
of time requested by both parties, this case was fully briefed on May 12, 2022, and
subsequently assigned to this panel.
3
evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid.
Code, § 1101, subd. (a).) Such evidence is frequently referred to as propensity evidence.
(Falsetta, supra, 21 Cal.4th at p. 910.) Evidence Code section 1108 creates an exception
to the general rule in sex offense cases. It provides, “In a criminal action in which the
defendant is accused of a sexual offense, evidence of the defendant’s commission of
another sexual offense or offenses is not made inadmissible by [Evidence Code s]ection
1101, if the evidence is not inadmissible pursuant to [Evidence Code s]ection 352
[permitting court to exclude evidence if its probative value is substantially outweighed by
its prejudicial impact].” (Evid. Code, § 1108, subd. (a).) In Falsetta, our Supreme Court
explained that Evidence Code section 1108 was enacted “to relax the evidentiary
restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier
of fact would be made aware of the defendant’s other sex offenses in evaluating the
victim’s and the defendant’s credibility. In this regard, [Evidence Code] section 1108
implicitly abrogates prior decisions of this court indicating that ‘propensity’ evidence is
per se unduly prejudicial to the defense.” (Falsetta, supra, 21 Cal.4th at p. 911.)
Like defendant here does, the defendant in Falsetta argued that Evidence Code
section 1108 violated the due process clause because it offends principles of justice “so
rooted in the traditions and conscience of our people as to be ranked as fundamental.”
(Falsetta, supra, 21 Cal.4th at p. 913.) The Falsetta court disagreed. Although it
acknowledged that the rule excluding propensity evidence was a longstanding one, it
ultimately held Evidence Code section 1108 “does not offend due process.”5 (Falsetta, at
p. 916.)
5 A primary basis for the court’s conclusion that Evidence Code section 1108 does not
offend due process was the fact that it expressly states the trial court has discretion to
exclude propensity evidence pursuant to Evidence Code section 352. (Falsetta, supra,4
Defendant argues “Falsetta cannot be squared with the common law and should be
reconsidered.” He acknowledges, however, that we are required to follow Falsetta.6 We
are, and we thus reject defendant’s argument that the admission of his two prior sex
offense convictions violated his due process rights.7
II
Section 288.5 Does Not Preclude Prosecution Under Section 288, Subdivision (a)
Defendant was convicted of seven counts of violating section 228, subdivision (a).
He argues that prosecution under section 228, subdivision (a) is precluded by section
21 Cal.4th at p. 917 [“we think the trial court’s discretion to exclude propensity evidence
under [Evidence Code] section 352 saves [Evidence Code] section 1108 from defendant’s
due process challenge”].) Evidence Code section 352 provides, “The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
The trial court in this case performed such a balancing and admitted the evidence.
Defendant does not challenge the trial court’s decision on Evidence Code section 352
grounds, and, indeed, he never mentions Evidence Code section 352 in his briefs.
6 He states he raises the issue here solely to preserve it for federal review.
7 In a footnote in his opening brief, defendant makes one other argument about the
evidence of his prior sexual offenses. He argues the jury was instructed his prior offenses
needed to be proved by a preponderance of the evidence, which “improperly undercut the
state’s burden of proof beyond a reasonable doubt.” “An appellant cannot bury a
substantive legal argument in a footnote and hope to avoid waiver of that argument.”
(Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419.) We thus need not
consider this argument. Even if we considered it we would reject it because, as defendant
once again acknowledges, our Supreme Court rejected it in People v. Reliford (2003)
29 Cal.4th 1007, 1016, when it held “[n]othing in the [jury] instructions [on this issue]
authorized the jury to use the preponderance-of-the-evidence standard for anything other
than the preliminary determination whether defendant committed a prior sexual
offense . . . . The instructions instead explained that, in all other respects, the People had
the burden of proving defendant guilty ‘beyond a reasonable doubt.’ ” Again, defendant
states he raises this argument only to preserve it for federal review.
5
228.5, because it is a more specific statute covering the same acts as section 228,
subdivision (a). We disagree.
Section 288, subdivision (a) provides that any person who commits a lewd or
lascivious act on a child under the age of 14 is guilty of a felony and shall be imprisoned
for three, six, or eight years. Section 288.5 provides that any person who (1) resides in
the same home with the child or has recurring access to the child, and (2) who commits
three or more lewd or lascivious acts as defined in section 228 over a period of not less
than three months, is guilty of continuous sexual abuse of a child and shall be imprisoned
for six, 12, or 16 years. A violation of section 288.5 thus consists of three or more
violations of section 288, subdivision (a), within a period of not less than three months,
by someone who lives with the child. As defendant accurately notes, he was charged
with, and convicted of, seven separate counts of violating section 288, subdivision (a)
over a two-year period, during which time he lived with Isaiah and his mother.
Defendant argues that, in this circumstance, he could only be prosecuted and convicted
under section 288.5.
Defendant’s argument is based on case law that holds “when the Legislature has
enacted a specific statute addressing a specific matter, and has prescribed a sanction
therefore, the People may not prosecute under a general statute that covers the same
conduct, but which prescribes a more severe penalty, unless a legislative intent to permit
such alternative prosecution clearly appears.” (Mitchell v. Superior Court (1989)
49 Cal.3d 1230, 1250, italics omitted; see also People v. DeLaCruz (1993)
20 Cal.App.4th 955, 958 [“Prosecution under a general statute is precluded when the
facts of the alleged offense parallel the acts proscribed by a special statute”].) This rule
(or doctrine) is sometimes referred to as the “Williamson rule,” after In re Williamson
(1954) 43 Cal.2d 651. “Under the Williamson rule, if a general statute includes the same
conduct as a special statute, the court infers that the Legislature intended that conduct to
be prosecuted exclusively under the special statute.” (People v. Murphy (2011)
6
52 Cal.4th 81, 86.) “The fact that the Legislature has enacted a specific statute covering
much the same ground as a more general law is a powerful indication that the Legislature
intended the specific provision alone to apply.” (People v. Jenkins (1980) 28 Cal.3d 494,
505.)
Defendant argues the Williamson rule applies here, and that because section 228 is
a general statute and section 288.5 is a specific statute that covers the same conduct, he
can only be prosecuted under section 288.5. We disagree. As noted, the Williamson rule
is “designed to ascertain and carry out legislative intent.” (People v. Jenkins, supra,
28 Cal.3d at p. 505.) Here, the text of section 288.5 itself evidences that it was not the
Legislature’s intent to preclude prosecution under section 288. Subdivision (c) of section
288.5 provides, “No other . . . lewd or lascivious acts, as defined in Section 288,
involving the same victim may be charged in the same proceeding with a charge under
this section unless [1] the other charged offense occurred outside the time period charged
under this section or [2] the other offense is charged in the alternative.” (Italics and
bracketed numbers added.) Section 288.5 thus permits a defendant to be charged with
both a violation of section 288 and a violation of section 288.5 in two circumstances.
First, a defendant may be charged with violating both sections if the section 288
violation(s) “occurred outside the time period charged under” section 288.5. (§ 288.5,
subd. (c).) For example, a defendant charged with continuous sexual abuse of a child
between August 1, 1995, and December 1, 1995, in violation of section 288.5, could also
be charged under section 288 with lewd and lascivious acts with that child in March and
April of 1996 (i.e., because they occurred outside the time period charged under § 288.5),
but could not also be charged with two lewd and lascivious acts in October 1995 (i.e.,
because they occurred inside the time period charged under § 288.5). If a defendant can
be charged with violating both section 288 and section 288.5 so long as the time periods
do not overlap, we ascertain no legislative intent to require prosecution solely under
section 288.5.
7
Second, a section 288.5 violation and multiple section 288 violations may be
“charged in the alternative.” (§ 288.5, subd. (c).) And if multiple section 288 violations
may be charged as an alternative to a section 288.5 violation, we see no reason they
cannot be charged instead of a section 288.5 violation.
Although the facts are different, we find support for our conclusion in People v.
Johnson (2002) 28 Cal.4th 240 (Johnson). There, the defendant was charged with, and
convicted of, (1) one count of continuous sexual abuse of a child between September 19,
1995, and February 28, 1998, in violation of section 288.5, and (2) multiple counts of
forcible lewd acts on that child between various dates within that same time period, in
violation of section 288, subdivision (b).8 (Johnson, at p. 243.) The issue was whether
the defendant could be convicted on both the continuous sexual abuse count and the
individual forcible lewd act counts. Our Supreme Court held he could not, because
section 288.5 “ ‘prohibits the prosecution from charging the defendant with a violation of
section 288.5 and any other sexual felony occurring during the same time period, unless
the offenses are charged in the alternative.’ ” (Johnson, at pp. 244-245.) And “if a
defendant may be charged with two different offenses only in the alternative, then he or
she may not properly be convicted of those offenses in the conjunctive.” (Id. at p. 245.)
The key to the Johnson holding was the fact that all of the section 288, subdivision (b)
8 Specifically, “Defendant was charged with continuous sexual abuse of a child under
age 14 between September 19, 1995, and February 28, 1998, in violation of section
288.5, subdivision (a) (count 1); forcible lewd act on a child between September 19,
1995, and September 18, 1996 (count 2); forcible lewd act on a child between
September 19, 1996, and September 18, 1997 (count 3); sodomy of a person under age 14
by a person 10 or more years older between September 19, 1996, and September 18,
1997, in violation of section 286, subdivision (c) (count 4); forcible lewd act on a child
between September 19, 1997, and September 28, 1998 (count 5); and forcible lewd act on
a child between September 19, 1997, and February 28, 1998 (count 6). Counts 2, 3, 5
and 6 alleged violations of section 288, subdivision (b).” (Johnson, supra, 28 Cal.4th at
p. 243.)
8
counts occurred in the same time period as the section 288.5 count, and in this
circumstance, section 288.5 provides the section 288, subdivision (b) counts must be
“charged in the alternative.”
As relevant to this case, the Johnson court concluded by noting the following:
“Prosecutors in sexual abuse cases possess a variety of means to seek convictions and
severe punishments in cases involving sexual offenses against vulnerable young victims.
They may, for example, plead and prove discrete sexual offenses and seek consecutive
sentencing when permitted; they may bring a charge of continuous sexual abuse, with its
relatively severe range of punishments (§ 288.5, subd. (a)); they may charge continuous
sexual abuse and discrete sexual offenses outside the period of the alleged continuous
abuse (People v. Cortes (1999) 71 Cal.App.4th 62, 80); . . . or they may charge discrete
sexual offenses and continuous sexual abuse in the alternative.” (Johnson, supra,28 Cal.4th at p. 248, italics added.) Here, the People chose the first option (i.e., they pled
and proved seven discrete sexual offenses and they sought and received consecutive
sentencing), which Johnson approved.
The result that we reach in this case was also reached in People v. Hord (1993)
15 Cal.App.4th 711 (Hord), albeit for different reasons. The defendant in Hord was
convicted of one count of lewd and lascivious acts with a child “ ‘on or about 1989’ ”
(§ 288, subd. (b)), and one count of continuous sexual abuse of a child “ ‘on or about
1990 to March, 1991’ ” (§ 288.5), both arising from his molestation of his stepdaughter.
(Hord, at p. 716.) Citing the same rule that defendant cites here, the defendant in Hord
argued he could not be convicted of violating both section 288 and section 288.5. The
court disagreed.
The court began its analysis by tracing the history surrounding the enactment of
section 288.5. It noted that section was enacted in response to People v. Van Hoek
(1988) 200 Cal.App.3d 811, which “was a case involving a resident child molester. The
victim gave generic testimony of repeated molestations without specifying a time, place
9
or other particulars. Defendant was found guilty at trial of seven counts of child
molestation based on this testimony. We held it was a due process violation to convict a
defendant based on only the uncorroborated, unspecific testimony of the victim.” (Hord,
supra, 15 Cal.App.4th at p. 718.) The Van Hoek court thus reversed the defendant’s
convictions on all seven counts. (Van Hoek, supra, 200 Cal.App.3d at p. 818.)
The Hord court then explained that, in enacting section 288.5, the Legislature
stated, “ ‘because of the court’s decision in People v. Van Hoek, 200 Cal.App.3d 811,
there is an immediate need for additional statutory protection for the most vulnerable
among our children, those of tender years, some of whom are being subjected to
continuing sexual abuse by those commonly referred to as “resident child molesters.”
These molesters reside with, or have recurring access to, a child and repeatedly molest
the child over a prolonged period of time but the child, because of age or the frequency of
the molestations, or both, often is unable to distinguish one incident from another in
terms of time, place, or other particulars, and as a consequence prosecutors are unable to
provide the specificity of charges necessary to overcome the constitutional due process
problems raised in the Van Hoek case within the framework of existing statutory law. As
a consequence, some of our most vulnerable children continue to be at risk and some of
our worst offenders continue to go unpunished. [¶] ‘. . . It is the intent of the Legislature
in enacting this act to provide additional protection for children subjected to continuing
sexual abuse and certain punishment for persons referred to as “resident child molesters”
by establishing a new crime of continuing sexual abuse of a child.’ ” (Hord, supra,
15 Cal.App.4th at pp. 718-719, quoting Stats. 1989, ch. 1402, § 1, p. 6138.)
Finally, the Hord court noted that, a year after section 288.5 was enacted, our
Supreme Court disapproved Van Hoek in People v. Jones (1990) 51 Cal.3d 294, and held
that “ ‘[e]ven generic testimony (e.g., an act of intercourse “once a month for three
years”) outlines a series of specific, albeit undifferentiated, incidents, each of which
10
amounts to a separate offense, and each of which could support a separate criminal
sanction.’ ” (Hord, supra, 15 Cal.App.4th at p. 719, quoting People v. Jones, at p. 314.)
Turning to the issue at hand, the Hord court then held as follows: “[W]e conclude
sections 288.5 and 288 are not subject to the Williamson rule. ‘The doctrine that a
specific statute precludes any prosecution under a general statute is a rule designed to
ascertain and carry out legislative intent.’ (People v. Jenkins (1980) 28 Cal.3d 494, 505.)
The Legislature’s intent in passing section 288.5 was not to enact a specific statute to
apply in lieu of a general statute. The intent was to enact a statute for an area which the
Legislature believed was not covered by any other law. That this statute’s necessity was
nullified by the Jones decision does not transform this statute into a specific statute under
the Williamson rule since this was clearly not the Legislature’s intent at the time of the
enactment.” (Hord, supra, 15 Cal.App.4th at p. 720, italics added.)
Defendant argues Hord “misses the mark” and “should not be followed.” We
disagree, and find it to be well reasoned. We also agree with another case that held,
albeit in different circumstances, “It would be anomalous if section 288.5, adopted to
prevent child molesters from evading conviction, could be used by those molesters to
circumvent multiple convictions with more severe penalties and prior-strike
consequences than available for a conviction under section 288.5.” (People v. Alvarez
(2002) 100 Cal.App.4th 1170, 1177.)9
9 The defendant in Alvarez was charged with one count of continuous sexual abuse of a
child (count 1), and with three counts of lewd acts upon that same child (counts 2-4).
The defendant pled not guilty and waived his right to a jury trial. After the trial
concluded but before the trial court issued its decision, it stated that if it found the
defendant guilty of count 1, the prosecutor was precluded from filing the other charges.
The prosecutor then moved to dismiss count 1. The court granted the motion, and found
the defendant guilty on counts 2 through 4. (People v. Alvarez, supra, 100 Cal.App.4th at
pp. 1173-1174.) On appeal, the defendant argued the trial court erred in dismissing the
continuous sexual abuse count rather than the three counts for lewd acts. The court
disagreed. While it agreed that the defendant should not have been charged with both
11
Moreover, in Johnson, our Supreme Court expressly stated that nothing in its
decision “is inconsistent with People v. Hord (1993) 15 Cal.App.4th 711, 720, where the
Court of Appeal concluded that the Legislature’s purpose in passing section 288.5 was
not to enact a specific statute in order to preclude prosecution for other generally
applicable sexual offenses.” (Johnson, supra, 28 Cal.4th at p. 246, fn. 5.) Although this
statement was arguably dicta, it is nonetheless persuasive dicta, and we take it as an
implied endorsement of Hord’s holding that section 288.5 does not preclude prosecution
under section 288.
III
Fines and Fees
At sentencing, the court imposed the following fines and fees: (1) a $5,000
restitution fine pursuant to section 1202.4, subdivision (b) (and a suspended $5,000
parole revocation fine pursuant to § 1202.45); (2) $600 in direct restitution to the victim
pursuant to section 1202.4, subdivision (f); (3) a $210 court facility fee pursuant to
Government Code section 70373, subdivision (a)(1); and (4) a $280 court security fee
pursuant to section 1465.8, subdivision (a)(1). Citing People v. Dueñas (2019)
30 Cal.App.5th 1157, defendant argues the fines and fees must be stricken or stayed
because they were imposed without consideration of his ability to pay. In Dueñas, the
court concluded it violated due process to impose court fees without a determination of
the defendant’s ability to pay, and execution of a restitution fine must be stayed until the
count 1 and counts 2 through 4 (unless they were alleged in the alternative), it found he
waived any challenge to the propriety of the charges by not filing a demurrer, and “[b]y
failing to demur, appellant cannot now claim that the prosecution lost its right to proceed
on all of the counts and to elect to seek conviction of the specific sexual offenses. The
trial court therefore properly granted the prosecution’s motion to dismiss the continuing
sexual abuse charge and convicted appellant on the lewd conduct counts.” (Id. at
p. 1177.)
12
trial court holds a hearing and concludes the defendant has the present ability to pay the
fine. (Dueñas, at pp. 1164, 1168.)
Defendant admits he did not object to the fines or fees in the trial court, and he did
not present any evidence on his ability to pay. The People argue he has thus forfeited the
issue. We agree.
“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous
ruling of the trial court in that court has forfeited his or her right to raise the claim on
appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880.) This rule applies to alleged
sentencing errors, including the imposition of fees and fines. (People v. Trujillo (2015)
60 Cal.4th 850, 856-861 [defendant forfeited challenge to booking fee by failing to object
in trial court]; People v. Gamache (2010) 48 Cal.4th 347, 409 [defendant forfeited
challenge to restitution fine by failing to object in trial court]; People v. Scott (1994)
9 Cal.4th 331, 351-354 [to preserve sentencing issue for appellate review, defendant must
raise it in trial court].) This rule has recently been applied to the failure to raise a Dueñas
argument in the trial court. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1052-
1053 [Dueñas arguments forfeited by failure to raise in trial court]; People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1153-1155 [same].) By failing to raise a Dueñas argument
at his sentencing hearing, defendant forfeited the right to raise the issue on appeal.
Defendant argues he has not forfeited his right to raise the issue because he was
sentenced on February 26, 2019, Dueñas was not yet final at that time,10 and it would not
be fair to expect him to raise an argument based on such a new case. His argument is
based on an exception to the forfeiture rule that allows a defendant to raise an issue for
the first time on appeal where “the pertinent law . . . changed so unforeseeably that it is
10 Dueñas was issued on January 8, 2019; the Supreme Court extended the time for
granting or denying review on February 26, 2019, and it denied review on March 27,
2019.
13
unreasonable to expect trial counsel to have anticipated the change.” (People v. Turner
(1990) 50 Cal.3d 668, 703; see also People v. Welch (1993) 5 Cal.4th 228, 237
[“Reviewing courts have traditionally excused parties for failing to raise an issue at trial
where an objection would have been futile or wholly unsupported by substantive law then
in existence”].) Although there is currently a split among the Courts of Appeal, several
have held that Dueñas “constituted a marked departure from existing law,” and have thus
excused the failure to contest the fines and fees in the trial court. (People v. Montes
(2021) 59 Cal.App.5th 1107, 1119; but see People v. Frandsen, supra, 33 Cal.App.5th at
p. 1154 [“Dueñas was foreseeable. Dueñas herself foresaw it”].) We need not weigh
into this split, however, because defendant has his dates wrong—he was sentenced on
February 26, 2021, not on February 26, 2019. At the time the fees and fines he
challenges were imposed, Dueñas had been on the books for almost two years, and there
is nothing unfair about requiring him to raise his arguments in the trial court.
Defendant argues in the alternative that if we find his Dueñas claim was forfeited,
then the failure to object in the trial court constituted ineffective assistance of counsel.
We do not consider defendant’s ineffective assistance argument because it was raised for
the first time in his reply brief, and “[i]t is axiomatic that arguments made for the first
time in a reply brief will not be entertained because of the unfairness to the other party.”
(People v. Tully (2012) 54 Cal.4th 952, 1075; see also People v. Bona (2017)
15 Cal.App.5th 511, 517 [“ineffective assistance claim is forfeited because it was not
raised in the opening brief”]; People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [same].)
14
DISPOSITION
The judgment is affirmed.
/s/
EARL, J.
We concur:
/s/
HULL, Acting P. J.
/s/
RENNER, J.
15