Is a defendant permitted to raise his claim of ineffective assistance of counsel in his reply brief?

Defendant has forfeited this claim on appeal. " '[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 952, italics added.) At trial, defense counsel did not request an admonition to the jury when he objected to the prosecutor's argument, and he objected on grounds of improper rebuttal, not burden shifting. The argument is thus forfeited.

Defendant asserts for the first time in his reply brief that should we conclude his claim of prosecutorial misconduct is forfeited, we should review the matter for ineffective assistance of counsel. By failing to raise a claim of ineffective assistance of counsel in his opening brief, defendant has forfeited that contention as well. Arguments raised for the first time in a reply brief may be deemed forfeited absent a showing of good cause. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10.) Defendant makes no showing as to why he should be permitted to raise his claim for ineffective assistance of counsel in his reply brief. Accordingly, the claim is deemed forfeited.

Even were we to consider defendant's claim of prosecutorial misconduct on the merits, we would conclude the prosecutor committed no error. For purposes of prosecutorial misconduct, "[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The latter constitutes prosecutorial misconduct, but the former does not. The prosecutor's comment was of the former; a comment on the lack of evidence providing a reason for why the victims would lie.