What are the implications of a defendant's failure to object to an instruction in CALCRIM No. 3471?

In his opening brief, defendant did not address his failure to object to CALCRIM No. 3471. In his reply brief, in response to the People's forfeiture argument, he belatedly contends the instruction is erroneous as a matter of law and, in the alternative, defense counsel was prejudicially ineffective for failing to object. An appellate court ordinarily will not consider new issues raised for the first time in the defendant's reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.) Nevertheless, we will briefly address defendant's meritless claim.

In People v. Hecker (1895) 109 Cal. 451 (Hecker), the court stated the defendant was entitled to an instruction justifying a murder if the defendant "was put in such sudden jeopardy by the acts of deceased that he could not withdraw ...." (Id. at p. 461, italics added.) This is the precise language used in CALCRIM No. 3471. Later in Hecker, the court explained the same concept as follows: "[I]t is the duty of the first wrongdoer before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the

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