Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CR49285
ROBIE, J.
Convicted on two counts of second degree robbery, three counts of second degree burglary, and a single count of attempted robbery, defendant was sentenced to six years eight months in state prison. Defendant appeals his conviction claiming insufficient evidence to sustain the convictions for robbery, evidentiary error, constitutional error, and ineffective assistance of counsel. Finding none of his claims have merit, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Offenses
On January 16, 2008, at 7:30 p.m., Carrie Powell was working at the Arbuckle Shell gas station when a man wearing a dark sweatshirt with the letters “SKI” on the front, a flannel shirt, a ski mask, sunglasses, a bandanna, and a hood came behind the counter, pointed a gun in her face, and asked her, “‘Where’s the safe?’” In response, Powell pointed to the safe. The robber tried to open the safe but failed. He then ordered Powell to open the cash register but she could not remember how. The robber then forced the cash register open, took the approximately $750 inside, and left the gas station. The entire crime was recorded on the station’s surveillance system.
The following month, on February 15, 2008, at approximately 6:00 a.m., Elvera Rodriguez Asius was working at the 99 Cents and More store in Arbuckle when a man wearing a sweatshirt with the letters “SKI” on the front, a hood with stitching on top of it, and a mask over his face entered the store and demanded, “Give me the money.” The robber was carrying a gun longer than a pistol in one hand and a white plastic grocery bag in the other. Scared, Asius opened the cash register and gave him approximately $750 inside. The robber said, “‘Give me all the money,’” and Asius told him that was all the money. The robber then took the cash drawer, looked for more money, and found none. He then put the money Asius gave him into the plastic bag and left the store. The entire crime was recorded on the store’s surveillance system.
Around this time, Colusa County Sheriff Sergeant Kevin Erdelt was investigating robberies in Colusa County. Eventually, his investigation focused on defendant and on February 26, 2008, Sergeant Erdelt had a GPS tracking device placed on a white 1994 Honda Accord that was registered to defendant’s mother, but which defendant regularly drove.
Later that same day, at 7:37 p.m., Ragwinder Singh was working with her mother at a Valero gas station that Singh owns in Colusa. Singh was cleaning the station when a man approximately 5 feet 10 inches tall, 170 to 180 pounds, wearing a dark sweatshirt with the letters “SKI” stitched on the front and a glove on his hand walked in. Carrying a rifle, the man said, “‘Give me money. Give me money.’”
Singh approached the robber from behind and tried to hold him but he pushed her to the floor and moved toward the counter. Singh jumped up, grabbed a stick near the counter, and swung at the robber. Singh’s mother also tried to hit the robber with a broom. The robber repeated his demands saying, “‘I’ll show you.’” “‘I could shoot you.’” The robber could not, however, get behind the counter and ran out. The entire crime was recorded on the station’s surveillance system.
Three days later, on March 1, 2008, the GPS tracking device was removed from the Honda and returned to the sheriff’s department, where Sergeant Erdelt was able to download the recorded information onto his hard drive. Stephen Moehling, a vice president of the company that manufactured the GPS device, was then able to isolate data recorded on the GPS on February 26, 2008, between 7:00 p.m. and 8:00 p.m. The data showed that, during that time, the Honda drove near the Valero parking lot then stopped a block and one-half away. The Honda remained in that location from 7:22 p.m. to 7:39 p.m.
B
Investigation
On March 5, 2008, pursuant to a search warrant, law enforcement officers searched the home of defendant’s sister, Silvia Silva. The officers also searched a van that was parked on Silva’s property, which she used for storage. The van was filled nearly to the top with clothes, toys, computer parts, and other “miscellaneous items.” Near the back of the van, on “top of the items,” Deputy Tony Garofalo saw a “lever action rifle” or “BB gun.” The gun was wrapped with black electrical tape under the muzzle or sight, where its wooden forearm was missing. The back of the stock, or “butt plate,” also had a large chunk of wood missing from it. The officers also found a dark blue sweatshirt bearing the letters “SKI,” and a black and white Franklin batting glove that was attached to a ski mask.
Silva denied that any of these items were hers. She told Deputy Garofalo that only she and her 12-year-old son went into the van, though defendant may have kept some items in there. Later that day, the officers found defendant driving the Honda and arrested him.
Following defendant’s arrest, the officers searched the Honda. Inside the Honda, they found a black pull-over hooded jacket and a gray and black-hooded zipper jacket with stitching on the hood. During a subsequent interview, defendant told Detective Donald Harmon that only he and his mother had keys to the Honda and they were the only two who drove it. Defendant also denied ever wearing a black stocking or ski mask that pulls over the entire face with holes for the eyes.
Defendant was subsequently charged with two counts of second degree robbery, three counts of second degree burglary, and two counts of attempted second degree burglary. Defendant pled not guilty and the matter proceeded to a jury trial.
C
Trial
All of the victims testified at trial, each recounting their version of the crimes perpetrated on them. In addition, Powell testified that she knew defendant, he was a regular customer with whom she had spoken several times prior to the robbery. She also testified that she had heard several customers joking about how easy it would be to rob the gas station. She thought defendant could have been one of those people but she was not certain. In any event she said she did not take the statements seriously.
However, Deputy Garofalo testified that when he interviewed Powell during the investigation, she specifically told him that she had heard defendant and others joke about robbing the gas station. Garofalo further testified that Powell told him she took defendant’s statement more seriously than the others’. Powell further testified that since the robbery defendant had not returned to the gas station during her shift.
Defendant’s sister, Silva, also testified at trial. When asked, she could not remember whether defendant had come to her home on the night of the attempted robbery at the Valero gas station, though Deputy Garofalo remembered her telling him that defendant had been there. Silva testified that defendant used to live with her and had access to her van but denied that he stored anything in it. She further testified that since he had moved out, he had not gone into the van. Nevertheless, she acknowledged she had put some of defendant’s clothes in the van when he moved out.
An expert in DNA, Stephanie Carpenter, testified that she received DNA samples from the “face area” of the ski mask that was found in the van and it was a match to defendant’s DNA. Carpenter did not test any of the other items found in the van or in the Honda and she was unable to determine when defendant left his DNA inside the ski mask.
In addition, the jury saw the surveillance video of each robbery and the attempted robbery during the trial and again during deliberations. The jury also was given a still photo of the perpetrator taken from the Valero video. Ultimately, the jury found defendant guilty on all counts except one attempted second degree burglary which the People dismissed. Defendant was later sentenced to an aggregate term of six years eight months in state prison and ordered to pay various fines and fees.
Defendant appeals his conviction.
DISCUSSION
I
There Was Sufficient Evidence To Convict Defendant Of The Robberies
Defendant argues the prosecution produced insufficient evidence that he was the person who committed the crimes at the 99 Cents and More store and Shell station in Arbuckle.
In his opening brief, defendant challenges only his convictions for robbery, not his convictions for the attempted robbery at the Valero gas station in Colusa. In his reply brief, however, defendant raises challenges to the sufficiency of the evidence supporting his conviction for the attempted robbery at the Valero gas station. Absent a showing of good cause, issues raised for the first time in a reply brief may be deemed forfeited. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.) No good cause having been shown, we deem any claim that there was insufficient evidence to support defendant’s conviction for attempted robbery of the Valero gas station forfeited.
This court reviews a claim of insufficiency of the evidence to determine “whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation] We ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.] ‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’ [Citation.] Where the circumstances reasonably justify the trier of fact’s findings, a reviewing court’s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’s reversal. [Citation.]” (People v. Zamudio, supra, 43 Cal.4th at pp. 357-358.)
A reasonable jury could have found that defendant was the perpetrator in the Arbuckle robberies both of which occurred in a crime spree which took place from January 16, 2008, to February 15, 2008. The perpetrator in both offenses wore a ski mask, a dark sweatshirt with the word “SKI” written on the front, and covered his head with a hood. He also used a gun, described by Asius as longer than a handgun, to threaten the victims. A ski mask with defendant’s DNA on it was found in his sister’s van, along with a “BB gun,” and a dark sweatshirt with the word “SKI” written on it.
In the car that defendant drove, the police found another dark, hooded sweatshirt, along with a gray sweatshirt with “stitching on it,” similar to the sweatshirt worn by the perpetrator of the 99 Cents and More store robbery, as described by the victim. The jury reviewed videos of all the crimes being perpetrated and still photos of the perpetrator taken from those videos. Thus, the jury was able to compare the approximate height and weight of the perpetrator to that of the defendant, along with the perpetrator’s clothing and weapon of choice. Accordingly, we find there was sufficient evidence to convict defendant of the completed robberies.
II
The Trial Court Did Not Abuse Its Discretion In Denying Appellant’s Motion To Strike
At trial, Officer Harmon testified that after defendant was given his Miranda rights, defendant said that only he and his mother had the keys to the Honda and only they drove it. This statement was not presented to the defense 30 days prior to trial as required by Penal Code section 1054.7. Accordingly, the day after the statement was admitted into evidence, defendant moved to have it stricken. The trial court denied defendant’s motion as untimely and concluded there was no prejudice to defendant given that he had nearly 24 hours to procure additional evidence to rebut the statement but failed to do so.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
Defendant raises two claims on appeal related to his statement: (1) the trial court abused its discretion in refusing to strike it; and (2) he was wrongly denied his constitutional right to a hearing regarding the voluntariness of the statement before it was presented to the jury. The claims lack merit.
Defendant also claims the trial court erred in refusing to strike Officer Harmon’s testimony that, after receiving his Miranda rights, defendant said he had never worn a black stocking or ski mask with eye holes cut out. That claim, however, is forfeited. Trial counsel clearly stated he was moving to strike only the statement regarding the Honda, not the mask. Defendant cannot object to the statement regarding the mask for the first time on appeal. (Damiani v. Albert (1957) 48 Cal.2d 15, 18 [points not urged in the trial court may not be raised for the first time on appeal]; People v. Sahagun (1979) 89 Cal.App.3d 1, 26 [same].)
Defendant devotes a great deal of energy to arguing that the prosecutor violated the rules of discovery by failing to timely disclose the statement. No one disagrees with this assertion; in fact, the trial court correctly found the prosecutor should have disclosed the statements sooner. Accordingly, we need not address this issue.
First, defendant argues that because the prosecution failed to disclose these statements to the defense 30 days prior to trial, as required by Penal Code section 1054.7, the court abused its discretion in refusing to strike them. We find no abuse of discretion.
“A trial court may enforce the discovery provisions by ordering immediate disclosure, contempt proceedings, continuance of the matter, and delaying or prohibiting a witness’s testimony or the presentation of real evidence. [Citations.] However, the exclusion of testimony is not an appropriate remedy absent a showing of significant prejudice and willful conduct motivated by a desire to obtain a tactical advantage at trial. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358.)
Defendant fails to show significant prejudice as a result of this testimony being admitted. After admission of the testimony, defendant had nearly 24 hours to corral friends and family members to contradict the statement admitted through Officer Harmon.
Moreover, the record on appeal indicates that the data from the GPS device, which places the Honda near the Valero station at the time of the attempted robbery, was presented at the preliminary hearing. And, Steve Moehling, the GPS expert, was on the People’s witness list. Thus, it should have been evident to defendant that they intended to use the data gathered from the GPS, which was attached to the Honda, to put defendant at the scene of the crime and he cannot claim the prosecution was attempting to obtain a tactical advantage.
Furthermore, there was sufficient evidence, without these statements, to convict defendant of the attempted robbery at the Valero gas station. Sergeant Erdelt testified that defendant was seen driving the Honda on the day the GPS was placed on the car, the same day of the attempted robbery at the Valero gas station. Erdelt also testified that he had personally observed defendant driving the Honda more than 10 times.
Erdelt further testified that when he tried to retrieve the GPS unit the day after the attempted robbery, he personally observed defendant driving around Colusa in the Honda. Such testimony, combined with the GPS data, the “SKI” sweatshirt, BB gun, and ski mask with defendant’s DNA that were recovered from Silva’s van, the video of the crime, and the still photos of the perpetrator, were sufficient to convict defendant of the attempted robbery at the Valero gas station.
Moreover, as found by the trial court, defendant’s motion to strike the testimony was untimely, being raised the day after the testimony was admitted and the prosecution’s case was closed. (Evid. Code, § 353.) Accordingly, we find the trial court did not abuse its discretion in refusing to grant defendant’s motion to strike.
Defendant next argues that he was deprived of his constitutional right to an evidentiary hearing on the issue of “his confession’s voluntariness.” Defendant, however, failed to request such a hearing in the trial court. Accordingly, he has forfeited the claim on appeal. (Damiani v. Albert, supra, 48 Cal.2d at p. 18 [points not urged in the trial court may not be raised for the first time on appeal]; People v. Sahagun, supra, 89 Cal.App.3d at p. 26 [same].)
Defendant attempts to overcome forfeiture by arguing that trial counsel’s motion to strike “substantially served the same purpose as a motion for an evidentiary hearing to suppress the related statements.” Thus, he claims the untimely motion to strike “should preserve for appellate review [defendant]’s right to an evidentiary hearing.” Defendant cites no authority for this proposition. Accordingly, we reject this claim as well. (People v. Gurule (2002) 28 Cal.4th 557, 618 [appellate court may reject any claim not supported by citation to authority].)
Alternately, defendant asks that we address his claim because it is a constitutional right, raised for the first time on appeal. “Even a constitutional right[, however,] must be raised at the trial level to preserve the issue on appeal.” (In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1076; see People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7.)
Finally, defendant claims he suffered ineffective assistance of counsel because trial counsel failed to request a hearing on the admissibility of the Miranda statements, failed to make a timely motion to strike those statements, and failed to request a continuance to allow for the presentation of evidence to rebut those statements.
“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.” (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) As discussed above, we find defendant was not prejudiced by the admission of his Miranda statement.
Accordingly, we reject his claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P. J., NICHOLSON , J.