Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09796
NICHOLSON, J.
A jury found defendant Clifford Aberam McDowell guilty of unlawful use of credit card information (Pen. Code, § 484g) and grand theft of personal property (Pen. Code, § 487, subd. (a)). Defendant was sentenced to an aggregate term of two years in state prison and ordered to pay various fines and fees. Defendant appeals his conviction and his sentence. We modify and affirm.
BACKGROUND
In July 2007, defendant and another individual brought a 1993 Buick Regal to Automotive Solutions in order to have the brakes repaired. According to Automotive Solutions’ employee Stephanie Bramer, defendant completed a repair order, identifying himself as “Clifford Love,” and giving Bramer a contact number and address.
Nearly two weeks later, Bramer called the telephone number defendant listed on the repair order and left a message indicating the repairs were complete and the bill was $499. Within 10 minutes, a woman identifying herself as “Mrs. Love” returned Bramer’s phone call and gave Bramer a credit card number with which to pay the bill. “Mrs. Love” also gave Bramer permission to complete additional repairs on the car.
When the additional repairs to the car were completed, Bramer called the same telephone number and left another message indicating the car was ready to be picked up. “Mrs. Love” returned the call, the car was picked up that same day, and the bill was paid with the same credit card. Sometime thereafter, Bramer received a telephone call from the MasterCard fraud department, who told Bramer that the credit card used by “Mrs. Love” did not belong to “Mrs. Love” and the amount would be “charged back to the shop.” Bramer notified the Elk Grove Police Department.
Officer Andrew Bornhoeft of the Elk Grove Police Department spoke with Bramer. During the interview, Bramer gave Officer Bornhoeft the license plate number of the 1993 Buick Regal left at the shop by “Clifford Love.” The officer then contacted Elk Grove “dispatch,” gave them the license plate number, and learned it belonged to a 1993 Buick Regal that was towed by the Sacramento Police Department on August 19, 2007. At the officer’s request, Elk Grove “dispatch” then contacted Sacramento “dispatch,” and learned that defendant was driving the car when it was impounded by the Sacramento Police Department.
The officer also was able to obtain a physical description of defendant from Sacramento “dispatch,” which fit the description given by Bramer. Accordingly, Officer Bornhoeft created a photographic lineup that included defendant’s photograph. Over defendant’s objections for relevance, Officer Bornhoeft testified that Bramer and her husband, the owner of Automotive Solutions, both identified defendant as the man who brought the 1993 Buick Regal into the shop.
A short time later, Officer Bornhoeft contacted defendant at his home and questioned him regarding the fraudulent credit card use. Defendant claimed he did not own a Buick and had never even been to Automotive Solutions. Defendant was later arrested. After he was arrested, defendant changed his story and admitted dropping the Buick off at Automotive Solutions, but claimed he then sold it to a woman whose name he did not know and she was the one who picked up the car.
Eric Danielson testified at trial and confirmed that on August 7, 2007, his MasterCard was billed $499.85 from Automotive Solutions. He also testified there was a second charge from Automotive Solutions, totaling $511.20. He did not authorize either of these charges. In response to defendant’s questions, Danielson acknowledged that in July 2007, he used the same credit card to pay Jack’s Towing Company to bring him a new car battery after his died.
Defendant then presented testimony from Vonne Matney, who, together with her husband, owns Jack’s Towing. Matney testified that between February 2006 and October 2007, she employed a woman by the name of Lawanda Your as a dispatcher for Jack’s Towing. As part of her job, Your took credit card information from customers over the phone.
Leslie Ann Strickler, a police records specialist for the Sacramento Police Department, then testified that on August 23, 2007, Lawanda Your appeared and asked to have the impounded 1993 Buick Regal arrest released to her. Strickler “ran the license plate” and after receiving confirmation that Your was authorized to pick up the car, Your paid the fees, and the car was released to her.
Defendant argued that it was Lawanda Your who committed the credit card fraud. The jury was not persuaded and found defendant guilty as charged.
DISCUSSION
Defendant contends the trial court erred in admitting the out-of-court identification on the ground that such evidence was inadmissible hearsay. Defendant failed, however, to raise this objection in the trial court. “[Q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” (People v. Rogers (1978) 21 Cal.3d 542, 548.)
Defendant further claims the trial court’s admission of the out-of-court identification violated his Sixth Amendment Right to confront witnesses. Defendant did not, however, assert a violation of his constitutional rights in the trial court. As the Supreme Court explained in People v. Alvarez (1996) 14 Cal.4th 155, 186, “‘It is, of course, “the general rule” “--to which we find no exception here--” “that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.”’ [Citations.] There was neither a ‘specific’ nor ‘timely’ objection below predicated on the Sixth Amendment’s confrontation clause.” (See also Evid. Code, §§ 353, 354.) Accordingly, these claims are forfeited on appeal.
In his reply brief, defendant claims, for the first time, that because trial counsel failed to raise either of these objections in the trial court that he suffered ineffective assistance of counsel. 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 here 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.
The claim would fail in any event. “To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel’s performance was prejudicial in the sense that it ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Citations.] If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. [Citation.] If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 783-784.)
“Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.] Defendant’s burden is difficult to carry on direct appeal, as [the Supreme Court has] observed: ‘“Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Here there are numerous tactical reasons why trial counsel may have chosen not to object to the out-of-court identification on the grounds of hearsay or defendant’s right to cross-examine witnesses. For example, counsel may have thought such objections would lead to the prosecution putting Bramer’s husband on the witness stand, which might have led to additional inculpatory evidence. Defendant’s claim thus fails.
Defendant further contends, and the People concede, the trial court erred in failing to stay the sentence on count two pursuant to Penal Code section 654. Having reviewed the record and applicable law, we accept the People’s concession.
DISPOSITION
The trial court is directed to stay, per Penal Code section 654, the two-year prison sentence imposed on count two, amend the abstract of judgment accordingly, and deliver a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: BLEASE , Acting P. J., SIMS , J.