How have courts considered a Defendant's argument in his reply brief that the first shot was proof of intent to kill?

Confronted with the flaw in his argumentthe absence of a unanimity instructiondefendant argues in his reply brief for the first time that the prosecutor's argument that the second shot was proof of defendant's intent to kill "was misleading in that it conflated the maliciousness element of section 246 with the malice element of homicide. The elements of an attempted murder offense and shooting at an occupied vehicle offense are not congruent." "[W]e do not consider an argument first raised in a reply brief, absent a showing why the argument could not have been made earlier." (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.) Defendant has made no such showing.

Defendant next turns the argument he raised in his opening brief on its head and claims the error at trial was the trial court's failure to give a unanimity instruction: "The prosecutor's argument also improperly suggested that more than one discrete act supported the attempted murder charge. This is problematic, especially since . . . the jury was not actually given [a] unanimity instruction." Again, we do not consider issues raised for the first time in the reply brief on appeal absent a

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demonstrated justification. (People v. Newton, supra, 155 Cal.App.4th at p. 1005.)