Can a defendant argue that the Attorney General made no election, thus requiring unanimity instruction?

These arguments were forfeited because he did not make them in his opening brief. In that brief, he argued that the prosecutor made no election, thus requiring a unanimity instruction. The Attorney General responded by pointing out that an election was made. Having argued only that no election was made, defendant cannot use his reply brief to raise different issues about the prosecutor's election. To allow this untimely proffer of new issues would be unfair to the Attorney General, who has had no opportunity to respond. (Varjabedian v. Madera (1977) 20 Cal.3d 285, 295, fn. 11.)