Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F02507
BUTZ, J.Following a court trial codefendants Dimitric Rene Mosley and Cory Gaines were each convicted of one count of attempted murder (Pen. Code, §§ 664, 187, subd. (a)) and one count of attempted robbery (§§ 664, 211). The court also found true enhancement allegations that as to those offenses each defendant personally used a firearm. (§ 12022.53, subd. (d).) Defendant Mosley was also convicted of two counts of possession of a handgun by a person convicted of a felony. (§ 12021, subd. (a)(1).) The court also found true enhancement allegations that all the offenses, except the latter most charged against defendant Mosley, were criminal street gang offenses. (§ 186.22, subd. (b)(1) [hereafter § 186.22(b)(1)].) Defendant Mosley was sentenced to a determinate term of 17 years in state prison with a consecutive indeterminate term of 25 years to life. Defendant Gaines was sentenced to 7 years in state prison with a consecutive indeterminate term of 25 years to life. Both defendants appeal.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Shortly after midnight on the night of February 21, 2005, Justin Starks was walking home from Kaiser Permanente Hospital in South Sacramento. As he walked on Grandstaff Drive a white Crown Victoria passed him. Those in the car yelled profanities at him as it passed. Starks continued walking. As he approached the intersection at Maybelline Way, defendants crossed the street and accosted him.
Defendant Mosley had a gun. He put it to Starks’s neck, asking who Starks was. Defendant Gaines, meanwhile, was reaching into Starks’s right coat pocket. Starks grabbed the barrel and pushed the gun away. Defendant Mosley put the gun away. He asked where Starks was from. Starks recognized defendant Mosley as someone he had seen two weeks earlier. Defendant Mosley said to defendant Gaines: “It’s cool.” Defendant Gaines said “no,” that he was “going to check [Starks’s] pockets anyway.” He reached into Starks’s pocket again.
Starks reached in and removed defendant Gaines’s hand. Defendant Gaines grabbed Starks by the shirt collar and began punching him in the face. During the altercation Starks heard two gunshots and defendant Gaines announced he had been shot by defendant Mosley. Defendant Mosley “continued to shoot” at Starks who attempted to flee. He heard several more gunshots. He was hit in the lower back and the buttocks and fell to the ground. Defendants ran off.
Sacramento Police Officer Sean Lewis arrived at the scene about 12:08 a.m. Lewis found a nine-millimeter shell casing at the scene of the shootings, less that a foot from where Starks was lying.
On the night of the shootings, Jose Gil was working as an EMT at Kaiser Permanente Hospital in South Sacramento. Sometime between midnight and 12:30 a.m. he was taking a break in the ambulance bay adjacent to the emergency room. A white Crown Victoria screeched up. A picture of the car, taken at the hospital, was identified by the victim Starks as the one involved in the incident preceding his being shot.
There were four men in the car, including defendants. Defendant Mosley was driving, defendant Gaines was in the back seat on the passenger side. The other men were making a commotion, calling on Gil for help as defendant Gaines had been shot. The others were reassuring defendant Gaines, saying: “We’re your homeys. We’ll work Crips. You will be all right.”
Gil went to the car to help get defendant Gaines out. Defendant Gaines was bleeding. Viscera protruded from his abdomen wound. Gil saw a semiautomatic handgun sitting on the front seat of the car. Defendant Gaines received emergency treatment and was taken in for surgery. However, defendant Mosley and the other two occupants of the car soon departed when they heard the police were coming. Gil identified himself, defendants, and the car in monitoring photos admitted into evidence. He testified that an injury shown in a photo of defendant Gaines was a gunshot wound.
Earlier on the evening of the shootings, around 10:30 p.m., defendant Mosley and three other African-American males had arrived in the white Crown Victoria at an AM/PM store on Mack Road near Highway 99. As they were departing in the car, another male customer called out a caution to not hit a woman pedestrian. Defendant Mosley got out of the car and began striking the male customer; his associates then joined him in beating the man. They all wore blue. At some point defendant Mosley was seen by a cashier for the store flashing gang signs with his hands and was overheard to say something about “Valley High Cuz.”
Several days later, on the afternoon of March 23, 2005, Sacramento Police Sergeant Charles Husted detained defendant Mosley. He ordered him out of the car he was in. Sergeant Husted found a loaded nine-millimeter pistol under the front passenger seat where defendant Mosley had been seated. Starks identified the pistol as the one defendant Mosley had used on the night he was shot. A criminalist concluded that the shell casing found at the scene of the shootings had been discharged from this pistol.
Sergeant Husted also found a cell phone in or around the front passenger seat. The screen of the phone displayed the words “Crip gang.” He called a number in the phone’s memory. A female answered. He described defendant Mosley. The female said the person Sergeant Husted had described was “Dimitric Mosley.”
Sacramento District Attorney Investigator Adlert Robinson testified as an expert on African-American gangs as follows: Crips is one such gang. Robbery is one primary criminal activity of Crips. Crips wear blue. Valley High Crips is a subset. They are concerned with turf or territory. Leadership is derived from participation in criminal activities, e.g., robberies. Defendant Mosley is a Crip gang member, validated by Monterey County Probation. He admitted this to the arresting officers, who saw him throwing gang hand signs. He uses “cuzz,” a term of Crip argot. His cell phone displayed the message “Crip gang.” He wears blue and he was housed in the Crip cell block. Defendant Gaines by his own admission is a Valley High Crip.
If a gang member is in a confrontation the others in his set are obliged to back him. Physical resistance to a robbery by Crips is disrespectful. Investigator Robinson opined that the robbery of Starks was done for the benefit and at the direction of the Crip gang. He based that opinion on the way defendants approached the victim, what they said to Starks when they walked up on him [“where are you from” means with what gang are you affiliated], the fact that defendants are Crip gang members, the fact that the crime itself is a crime that is commonly committed by Crip gang members, or street gang members as a whole, and the fact that gang members took care of defendant Gaines and left the victim to die on the street after the robbery occurred.
DISCUSSION
I. Knowing and Intelligent Jury Trial Waiver
Defendants contend that the trial court erred in denying their motions for new trial based on the claim that their waivers of trial by a jury were not knowing and intelligent. Defendant Mosley argues that the trial court was compelled to grant his motion because he averred that he was confused and did not understand his right to a jury trial and because his counsel did not discuss the matter with him until the case was assigned to a trial court. Defendant Gaines argues the trial court was compelled to grant his motion because he averred that he felt rushed by the same last-minute timing of his discussion with counsel and because counsel did not explain that a waiver of a jury trial might affect the admissibility of evidence. Neither argument is persuasive and the contentions of error have no merit.
“A jury may be waived in a criminal cause by the consent of both parties expressed in open court by the defendant and the defendant’s counsel.” (Cal. Const., art. I, § 16.) There is no requirement that the trial court engage in a particularized inquiry to determine whether the express waiver is knowing and intelligent. However, “[i]t is probably the better practice for the trial judge, by inquiry, to make sure that the defendant understands the right to a jury trial.” (5 Witkin, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 452, p. 648.)
This does not entail telling a defendant who is represented by competent counsel about “‘all the ins and outs’ of a jury trial” (People v. Wrest (1992) 3 Cal.4th 1088, 1105; People v. Lookadoo (1967) 66 Cal.2d 307, 311); the relative advantages of the different types of trials (see, e.g., People v. Acosta (1971) 18 Cal.App.3d 895, 902); or that a jury trial requires a unanimous verdict (see People v. Tijerina (1969) 1 Cal.3d 41, 45-46).
The trial court does not have to elicit the reasons for a jury trial waiver when the defendant, represented by competent counsel, appears to make an intelligent, knowing and voluntary waiver of his right to a jury trial on the record, and indicates he has no questions or need to discuss the matter with counsel. (See People v. Diaz (1992) 3 Cal.4th 495, 571; People v. Robertson (1989) 48 Cal.3d 18, 36-38.) The appellate court will not reverse a jury trial waiver which otherwise appears voluntary, knowing and intelligent based on the defendant’s posttrial assertion he did not understand some aspect of a jury trial. (See, e.g., Diaz, at pp. 570-571.)
The same general considerations apply to the trial court in considering a motion for new trial. Defendants had half a day to consider the jury trial waiver. We see no basis to require a longer period for reflection or deliberation between the time that defense counsel raises the tactical question and the time for making the waiver. (Cf. People v. Watts (1977) 67 Cal.App.3d 173, 182-183, when time is requested, one hour is a reasonable time to contemplate a plea bargain.) The decision may even be made after the selection of the jury has begun. (People v. Medina (1935) 9 Cal.App.2d 259, 260.) Remorse after the court trial has an unsatisfactory outcome is not evidence that the waiver was unknowing or unintelligent. If that were allowed as a basis to obtain a retrial, every court trial would be infirm.
Similarly, a posttrial assertion that the defendant did not understand his right to a jury trial will not suffice. The defendant must, at a minimum, assert some particularized material lack in knowledge about the decision and persuade the court that if he had been better informed he would not have agreed to the waiver. (Cf., e.g., In re Alvernaz (1992) 2 Cal.4th 924, 938 [prejudice required to set aside rejection of a plea bargain on grounds of ineffective assistance of counsel, i.e., must show that with effective assistance would have accepted the offer].)
Defendant Mosley made no showing of a particularized material lack in knowledge about the decision to waive a jury trial.
Defendant Gaines’s showing consisted of averments that counsel did not explain that “a waiver of a jury trial might affect the admissibility of evidence [at] trial” or “what a jury instruction is.” On appeal he argues that his trial counsel asserted in the new trial motion proceedings that he waived jury trial because of possible prejudice from adduction of the gang evidence. He submits this showed that counsel failed to inform him that he could have moved for bifurcation of trial and that if the motion were granted, trial on the offenses would be conducted before the jury would hear “any of the gang evidence.”
We note that defendant Gaines makes no effort to demonstrate a likelihood that bifurcation would have been granted in this case. Moreover, the assertion that if a bifurcation motion were successful the jury would not hear any of the gang evidence is not self-evidently correct. “[E]vidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like--can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
It suffices to say that this claim was not broached in the trial court and has been forfeited for purposes of this appeal. (See, e.g., 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, pp. 444-446.)
For all the foregoing reasons, defendants’ contentions that the trial court erred in denying their motions for new trial based on the claim that their waivers of trial by a jury were not knowing and intelligent has no merit.
II. Sufficiency of the Evidence to Show Street Gang Offenses
Defendants contend that there is insufficient evidence to support the enhancement finding that the offenses were criminal street gang offenses within the meaning of section 186.22(b)(1). The enhancement applies to “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Ibid.) Defendants argue that the evidence lacks support for certain inferences they assert are required to satisfy this definition. The arguments are unpersuasive and the contention of error has no merit.
“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100, 1128; see also People v. Mayfield (1997) 14 Cal.4th 668, 790-791 [same standard of review applies to determine the sufficiency of the evidence to support a special circumstance finding].) “Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial.” (People v. Earp (1999) 20 Cal.4th 826, 887-888; People v. Tafoya (2007) 42 Cal.4th 147, 170.)
“No substantial evidence claims are of two kinds. Sometimes the claim is that the evidence does address the elements of the pertinent standard but does not afford a permissive inference critical to some element. However, usually the claim is that the evidence is inadequate because it does not address all of the elements of the pertinent standard. In such a case the dispute is about the nature of the standard.” (Jermstad v. McNelis (1989) 210 Cal.App.3d 528, 552.) Defendants’ arguments primarily fall into the latter category.
Defendant Mosley argues that an element of the criminal street gang offense of section 186.22(b)(1), is that one must have had the specific intent to further some additional, i.e., future, criminal conduct of gang members beyond the charged offense. He points to statements that specific intent is an intent to “accomplish some additional consequence by commission of the proscribed act.” (See, e.g., People v. Lyons (1991) 235 Cal.App.3d 1456, 1458.) He suggests this means the present charged offense cannot be a criminal street gang offense without evidence that it was done with the intent to facilitate other, future offenses by gang members. (See Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, 1103 [the enhancement was improper where “no evidence indicating that this robbery was committed with the specific purpose of furthering other gang criminal activity, and there is nothing inherent in the robbery that would indicate that it furthers some other crime”].)
Defendant Gaines argues that the trial court finding is based on the mistaken view that section 186.22(b)(1) does not require proof of intent to benefit the street gang but only requires intent to commit a crime in association with other members of the gang. He submits that the evidence does not support a finding that the offenses were committed “for the benefit of, at the direction of, or in association with any criminal street gang” as required.
Neither defendant makes a persuasive argument.
Section 186.22(b)(1) does not require intent to facilitate other, future offenses by gang members. “[T]he ‘specific intent to promote, further, or assist in any criminal conduct by gang members’” is satisfied if, in committing a felony (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales)), e.g., attempted robbery, the defendant also intends to promote, further, or assist any criminal conduct by other gang members. Where two or more gang members knowingly act together to perpetrate a felony, each is guilty of that felony and each, by aiding and encouraging his cohort(s), can be found to have the intent to promote, further, or assist “‘any criminal conduct by gang members’” (ibid.).
Defendant Gaines accepts this conclusion, but only where three or more gang members join in the offense. He points to the definition in section 186, subdivision (f): “‘[C]riminal street gang’ means any ongoing organization, association, or group of three or more persons.” The enhancement in section 186.22(b)(1) does not apply to any criminal street gang that commits the felony, rather it applies to “any person” if that person acts, e.g., in association with a criminal street gang with intent to assist in criminal conduct by a gang member. It suffices that the street gang be a group of three or more, regardless whether less participate in the criminal street gang offense.
Morales states: “Defendant argues that reliance on evidence that one gang member committed a crime in association with other gang members is ‘circular . . . .’ Not so. Arguably, such evidence alone would be insufficient, even when supported by expert opinion, to show that a crime was committed for the benefit of a gang. The crucial element, however, requires that the crime be committed (1) for the benefit of, (2) at the direction of, or (3) in association with a gang. Thus, the typical close case is one in which one gang member, acting alone, commits a crime. Admittedly, it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang. Here, however, there was no evidence of this. Thus, the jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members. [¶] If defendant is arguing that there was insufficient evidence of the specific intent element (as opposed to the benefit/direction/association element), we disagree. Again, specific intent to benefit the gang is not required. What is required is the ‘specific intent to promote, further, or assist in any criminal conduct by gang members . . . .’ Here, there was evidence that defendant intended to commit robberies, that he intended to commit them in association with Flores and Moreno, and that he knew that Flores and Moreno were members of his gang. Moreover, as we held in part IV, ante, there was sufficient evidence that defendant intended to aid and abet the robberies Flores and Moreno actually committed. It was fairly inferable that he intended to assist criminal conduct by his fellow gang members.” (Morales, supra, 112 Cal.App.4th at p. 1198.)
The gist of the trial court’s remark that there need not be intent to benefit the gang, if there is intent to commit a crime “in association with other members of the gang,” is correct. Garcia v. Carey, supra, 395 F.3d 1099 is simply incorrect in concluding that the felony to be enhanced must be committed with the specific purpose of furthering some other criminal activity of the gang. “‘[I]ntent to . . . assist in any criminal conduct by gang members’” is shown by acting together to perpetrate an offense. (Morales, supra, 112 Cal.App.4th at p. 1198.)
The purpose of the “California Street Terrorism Enforcement and Prevention Act” (Pen. Code, § 186.20 et seq.) is “eradication of criminal activity by street gangs by focusing upon patterns of criminal gang activity and upon the organized nature of street gangs, which together, are the chief source of terror created by street gangs” (id., § 186.21, 2d par.). We can see no reason why the Legislature would differentiate for purposes of this enhancement between crimes by “violent street gangs . . . against the peaceful citizens of their neighborhoods” (ibid.) based on a derivative intent to facilitate other, additional crimes. The evil against which the enactment aims is all such offenses. The search for the meaning of the words of the enactment must be guided by that evident purpose. (See Civ. Code, § 3511.)
In addition to “‘intent to . . . assist in any criminal conduct by gang members’” (Morales, supra, 112 Cal.App.4th at p. 1198), the evidence must show a “felony ‘committed for the benefit of, at the direction of, or in association with any criminal street gang’” (id. at p. 1197, quoting § 186.22(b)(1)). It is possible that gang members could commit a crime together that is not for the benefit of, at the direction of, or in association with any criminal street gang, e.g., “a frolic and detour unrelated to the gang.” (Morales, at p. 1198.) However, where active street gang members “gang up” on a victim to commit a felony that is a paradigmatic gang activity, e.g., as here where active Crip members combine forces to commit an armed robbery on the street, there is sufficient evidence that the offense is committed “in association” with a criminal street gang.
Defendant Gaines submits that the offenses, however the criminal episode commenced, became unrelated to the gang, when defendant Mosley “abandoned his attempt to rob Starks when he realized he knew Starks.” The argument improperly would require drawing inferences against the judgment about defendant Mosley’s mental state. It incorrectly assumes the attempted robbery offense was incomplete at the point of withdrawal. It misapplies the reasoning of Morales concerning the requirement of gang association to the requirement of assisting criminal conduct by gang members. Lastly, it overlooks the consideration that even if defendant Mosley had decided to “withdraw” from the robbery, when he came to the assistance of defendant Gaines in his struggle with the robbery victim, a continuation of the offense, any effect of the ephemeral “withdrawal” would have been extinguished.
The evidence affords inferences that on the night of this offense: (1) defendant gang members were traveling in their car with other gang associates; (2) as a group they ganged up to assault a man who disrespected them by calling out a warning that they might strike a pedestrian; (3) as a group they verbally abused Starks when driving past him; (4) as a group they drove to a place where defendants could intercept and rob Starks at gunpoint; and (5) as a group, after the bungled robbery, they assisted defendant Gaines in obtaining treatment for his gunshot wound, assuring him they would call upon resources of the gang to aid him. Defendants’ contention that there is insufficient evidence to support the criminal street gang offense enhancement finding is not meritorious.
III. Sufficiency of the Evidence to Show Robbery
Defendant Mosley contends that there is insufficient evidence to support the conviction for attempted robbery. He argues that there is not substantial evidence that when codefendant Gaines reached into the victim’s pocket he did so with the requisite intent to steal. He submits that: “For all the evidence shows, the checking of Starks’s pocket was for defendants’ safety.” The argument is unpersuasive and the contention of error has no merit.
Circumstantial inferences are for the trier of fact. (E.g., People v. Towler (1982) 31 Cal.3d 105, 118.) The two Crips accosted Starks and threatened him by pointing a pistol at him. Thereafter, defendant Gaines put his hand in Starks’s pocket. There is no evidence of any other reason other than robbery for the armed detention of the lone victim in the middle of the night. Based on this evidence, a rational trier of fact could find beyond a reasonable doubt that defendants were attempting to rob Starks.
IV. Sufficiency of the Evidence to Show Attempted Murder
Defendant Gaines contends that there is insufficient evidence to support his conviction of attempted murder. He argues that under the natural and probable consequences doctrine, it was unforeseeable that his armed co-robber would shoot to kill in defending him against the victim’s resistance to the robbery. The argument is unpersuasive and the contention of error is without merit.
Defendant Gaines admits that one who enters into a plan to commit robbery with an armed confederate could foresee that the weapon will be brandished or fired at the victim. Nonetheless, he argues that attempted murder is not reasonably foreseeable. However, there are many cases upholding application of the natural and probable consequences doctrine in situations where a defendant assisted in the commission of an armed robbery, during which a confederate assaulted or tried to kill a robbery victim. In those cases, courts upheld jury verdicts convicting the defendant of assault or attempted murder, on the ground that the jury could reasonably conclude that the crime was a natural and probable consequence of the robbery aided by the defendant. (See People v. Prettyman (1996) 14 Cal.4th 248, 262-263 and cases cited therein.)
Defendant Gaines admits he knew defendant Mosley was armed. However, he suggests that attempted murder was not reasonably foreseeable because defendant Mosley “had put the gun back into his pocket and had effectively withdrawn from the robbery attempt.” On appeal we would not infer against the judgment that defendant Mosley had so withdrawn. (See, e.g., 9 Witkin, Cal. Procedure, supra, § 349, pp. 394-395.) More to the point, the foreseeability of the risk that an armed robber may use the weapon if the victim physically resists is measured at the outset. It does not wane with a momentary turn of events.
The purposes for a weapon in a robbery are to force compliance with the demand to surrender property and to protect the perpetrators against interference. (See People v. Kauffman (1907) 152 Cal. 331, 337 [“pistols are used by burglars not for breaking into safes but for preventing interference with the criminal design”].) It is not unforeseeable that a deadly weapon may be used with the intent to kill if there is violent resistance to the contemplated robbery. Based on the evidence, a rational trier of fact could find beyond a reasonable doubt that the attempted murder was a natural and probable consequence of the attempted armed robbery of Starks.
V. Cruel and Unusual Punishment
Defendant Gaines contends that his sentence amounts to cruel and unusual punishment. He argues that 32 years to life is grossly disproportionate to his culpability under the reasoning of People v. Dillon (1983) 34 Cal.3d 441 (Dillon). He points to the fact that he was only 19 years old at the time of the offense, had only one prior conviction of record, was not the gunman, and to his claim the shooting was marginally foreseeable. The claim is forfeited on appeal for failure to raise it in the trial court.
A Dillon claim turns in significant part on issuable facts about the crime in question and facts about the offender. (Dillon, supra, 34 Cal.3d at p. 479.) Both “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts” and “whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind” require fact adduction and disputed fact resolution. (Ibid.) Accordingly, a Dillon claim must be raised in the trial court or it is forfeited on appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.)
Defendant Gaines argues in his reply brief that the Dillon claim was sufficiently raised below by his attorney’s lament that it was a shame that a teenager could receive a life term for an offense based on the natural and probable consequences doctrine. He submits this was sufficient to “put the court on notice” that such a claim was being raised. To find that such an equivocal remark in passing suffices would be a disservice to the trial court, to the prosecution, and to the purposes for requiring the claim to be vetted by a trier of fact.
Defendant Gaines also argues in his reply brief that, under case law, the court has discretion to reach claims asserting “the deprivation of certain fundamental, constitutional rights” raised for the first time on appeal. (See, e.g., People v. Vera (1997) 15 Cal.4th 269, 276.) He does not show how the claimed right he proffers fits into that case law. A Dillon claim is particularly unsuited for the exercise of such discretion, because the rule requiring that it be raised in the trial court is to ensure that the claim is properly and adequately developed for adjudication. Assuming for the sake of discussion that we have discretion to consider such a claim, we decline to exercise it on that ground.
Defendant Gaines lastly responds by raising in his reply brief the new claim that his trial counsel rendered ineffective assistance of counsel in failing to raise this claim at sentencing. He submits that the claim should be entertained on appeal rather than on habeas corpus because there is no conceivable tactical reason for failing to raise the claim in the trial court. “Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief.” (9 Witkin, Cal. Procedure, supra, § 616, pp. 647-648.) Accordingly, points raised for the first time in the reply brief are not considered, absent circumstances not present here. (Ibid.)
For all the foregoing reasons, the Dillon claim is forfeited on appeal.
DISPOSITION
The judgments are affirmed.
We concur: ROBIE, Acting P.J., CANTIL-SAKAUYE, J.