1

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

TAJMAL SHARRIEFF,

Defendant and Appellant.

C093701

(Super. Ct. No. 17FE009227)

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.
2

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. 
3

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.
4

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, 
5

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.
6

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) 
7

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. 
8

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.)
9

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 
10

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 
11

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 
12

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.) 
13

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.
14

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].)
15

DISPOSITION

The judgment is affirmed.

 /s/

EARL, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

RENNER, J.