NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

INTRODUCTION

Appellant Tylan Gregory was charged with second degree robbery, second degree commercial burglary and grand theft auto. Prior to trial, Gregory filed a motion to dismiss the complaint arguing that his due process rights were violated because he had not been arrested until 14 months after the offenses occurred. The trial court denied the motion and a jury convicted Gregory of all charges.

Gregory now appeals his conviction, alleging that: (1) the trial court erred in denying his motion to dismiss the information for unreasonable pre-arrest delay, and (2) there was insufficient evidence to support his conviction. We affirm his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Events Preceding Trial

On October 1, 2007, Ross Woods, the manager of a "GameStop" video game store, arrived at work in his Toyota Matrix. At approximately 10:00 a.m., two males entered the store. One man was wearing a black baseball cap and a black bandana that covered his nose. The second man, whose face was uncovered, was pointing a pistol at Woods. The men told Woods to open the safe and to give them the money in the cash register. Woods opened the register and placed $450 into a plastic bag. He then began opening the safe, which had a 10-minute delay mechanism.

While waiting for the safe to open, the man with the pistol gave his weapon to his companion and asked Woods for keys to the rear storage area of the shop. The man then went to the rear of the store and removed numerous video games and video game consoles. After the safe opened, Woods placed the contents into plastic bags. One of the men then asked Woods for his car keys, which were in the back of the store. The men retrieved the keys, along with Woods's wallet and MP3 player, and left the store with the bags of money, the video game merchandise and Woods's car. Woods immediately called the police and, when they arrived, he described the suspects as two Black males, approximately six feet in height.

The next day, Woods's Toyota was found near Deforest Park with the doors locked and the windows rolled up. Officers lifted 11 fingerprints from the interior of the car and, on October 17, 2007, a forensic specialist determined that two of the fingerprints matched the prints of Defendant Tylan Gregory. Los Angeles County detective Scott Marron then traveled to Gregory's last known address, which was a large apartment complex. The size of the complex "made it difficult to monitor" and Marron was unsuccessful in locating Gregory.

Based on the fingerprint evidence, Detective Marron put together a six-pack photographic lineup that included a picture of Gregory. On November 16, 2007, Woods viewed the photo lineup and, after about 10 minutes, identified Gregory as one of the assailants. After the identification, Marron decided that he wanted to find Gregory and talk to him before seeking an arrest warrant.

In January of 2008, Marron traveled to Gregory's apartment building and attempted to locate him. Marron also put a "want" into the police system "requesting any law enforcement personnel who came into contact with the defendant to detain him and notify [Marron.]" In February and March, Marron returned to the apartment complex but did not see Gregory.

Having had no success in locating Gregory, Marron turned the case over to the district attorney's office in June of 2008. The case was initially returned to Marron to collect additional information about the identity of the officers who had located Woods' stolen vehicle. After Marron complied with this request, an arrest warrant was issued on September 5, 2008. Gregory was arrested on December 17, 2008.

Following his arrest, Gregory was interviewed by Detective Marron, who asked Gregory to explain why his prints were in Woods' car. Gregory stated that, on the morning the robbery occurred, he had been at a job interview at a company named "Timec" and, after the interview, he had traveled to Deforest Park where he had seen an abandoned vehicle. Gregory claimed that he entered the car and looked through the glove compartment and various compact discs that were located in the automobile.

B. The Complaint and Trial Court Proceedings

In an information dated January 28, 2009, Gregory was charged with second degree robbery (Pen. Code, § 2111), second degree commercial burglary (§ 459) and grand theft auto (§ 487, subd. (d)(1)). The information also alleged that, for each offense, Gregory personally used a firearm and that a principal in the offense was armed with a firearm. Appellant pled not guilty.

On March 10, 2009, Gregory filed a motion to dismiss the information for violation of his due process rights, alleging that he had been prejudiced by the 14-month delay between the date of the offenses and the date of his arrest. Gregory argued that, as of November 2007, the police had sufficient evidence to arrest him, but waited almost a full year to issue an arrest warrant. Gregory asserted that critical evidence had been lost during the intervening period, including business records from Timec that would have substantiated his alibi and security camera tapes from an adjacent Bank of America that might have caught the incident on film. The trial court denied the motion, concluding that although the defendant had established "slight prejudice" based on the purported loss of Timec documentation, the delay in the arrest was justified and therefore outweighed any prejudice to Gregory.

At trial, Woods testified about the details of the robbery and identified Gregory as one of the assailants. During his direct examination, Gregory was asked to explain how he had selected Gregory from the photographic six pack prepared by Detective Marron. In response, Woods stated: "First I eliminated the people that I knew it was absolutely not. Once I got it down to the person that I believed it was, I circled it." He further explained, "when I looked at [the] lineup pictures I was given . . . the other five did not stand out. [Gregory] very much stood out so it clicked inside my head it was him."

On cross-examination, Woods admitted that he was confused as to some of the specific details about the robbery, including which perpetrator was initially holding the gun and who went to the rear of the store to remove the GameStop merchandise. He also stated that during the course of the robbery, he was never closer than seven feet to Gregory.

The prosecution called Detective Marron and other officers, who testified that Gregory's fingerprints had been found in Woods's automobile and that Gregory stated he had been applying for a job at Timec on the morning the crimes occurred. In addition, the prosecution called a human resources employee from Timec, who testified that the company retains every job application it receives and that Timec had no record of receiving an application from Gregory during 2007 or the first three months of 2008.

The defense called Gregory's sister-in-law, Kimberly Gregory, who testified that, for most of 2007, Gregory lived with her and Tyrone Gregory, defendant's brother. She also stated that Gregory took care of her children and rarely left the house because he did not have a job.

Gregory took the stand on his own behalf. He informed the jury that although he was uncertain what he was doing on the day of the robbery, he believed he was at Kimberly's apartment taking care of her children. He further stated that, later in the day, he entered an abandoned car near Deforest Park, explaining that he was being "nosy." On cross-examination, Gregory admitted he had previously told Detective Marron that he was applying for a job at Timec the morning the crime occurred.

On June 12, 2009, the jury convicted Gregory on all counts and he was sentenced to 12 years in prison. Gregory appeals his conviction, alleging that: (1) the trial court erred in denying his motion to dismiss the information, and (2) there was insufficient evidence to support his conviction.2

DISCUSSION

A. Gregory has Failed to Establish a Due Process Violation

1. Summary of legal principles and standard of review

"`[T]he right of due process protects a criminal defendant's interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence.' [Citation.] Accordingly, `[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions.'" (People v. Nelson (2008) 43 Cal.4th 1242, 1250 (Nelson).)

We use a three-step analysis to determine whether the defendant's due process right has been violated by pre-arrest delay: "(1) the defendant must show that he has been prejudiced by the delay, whereupon (2) the burden shifts to the People to justify the delay, and (3) the court balances the harm against the justification." (People v. Pellegrino (1978) 86 Cal.App.3d 776, 779; see also Nelson, supra, 43 Cal.4th at p. 1250.) "[U]nder California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process.3 This does not mean, however, that whether the delay was purposeful or negligent is irrelevant." (Nelson, supra, 43 Cal.4th at p. 1255.) Rather, "whether the delay was negligent or purposeful is relevant to the balancing process . . . . If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.)

Overall, the "balancing task is a delicate one, `a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Likewise], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal.'" (People v. Boysen (2007) 165 Cal.App.4th 761, 777 (Boysen).)

"The question of whether preaccusation delay is unreasonable and prejudicial is a question of fact. If the trial court concludes the delay denied the defendant due process, the remedy is dismissal of the charge. Our role is limited. The trial court's ruling is upheld on appeal if supported by substantial evidence." (Boysen, supra, 165 Cal.App.4th at p. 777.)

2. Gregory has failed to establish a Due Process violation

a. Gregory has failed to establish prejudice

The first step of the relevant balancing test requires Gregory to establish that he was prejudiced by the pre-arrest delay. Gregory alleges that because 14 months passed between the offense and his arrest, he was unable to obtain five categories of exculpatory evidence. First, he asserts that Timec destroyed application materials from October 1, 2007 and, as a result, Gregory was unable to substantiate his alibi defense. Second, he contends that because the government waited 14 months to conduct the arrest, he could not recall what he was doing on the morning the crimes occurred. Third, he argues that he was unable to obtain cell phone records that might have refreshed his memory as to where he was the morning the crime occurred. Fourth, he claims that security tapes from a nearby Bank of America were destroyed prior to his arrest, which might have shown who committed the crimes. Finally, he asserts that, between the date of the robbery and his arrest, some of the tenants near the GameStop store had left the area and, as a result, he was unable to interview those tenants to obtain potentially exculpatory information. All of these arguments lack merit.

Gregory first contends that he was prejudiced by the pre-arrest delay because, during the intervening time period, Timec destroyed application materials that might have shown he was applying for a job the morning the crime occurred. In support, Gregory cites a declaration filed in support of his motion to dismiss stating that a Timec human resources informed his counsel that "employment applications dating October 1, 2007 [we]re no longer available." At the hearing on Gregory's motion to dismiss, the trial court concluded that, through this declaration, Gregory had established "slight prejudice." However, during the subsequent trial, a Timec human resources supervisor testified that, contrary to Gregory's declaration, Timec retains all job applications that are submitted to it and that the company had no record of receiving an application from Gregory in 2007 or the first three months of 2008. The government's trial evidence indicates Timec does not destroy application materials and that it never received an application from Gregory. As a result, Gregory has failed to show that the timing of his arrest impacted his ability to obtain relevant documentation from Timec.

Gregory next contends that he was prejudiced by the pre-arrest delay because, by the time he was arrested, he had no "memory of any significant details as to his whereabouts" on October 1, 2007. However, during trial, Gregory testified that he believed he was at his brother's house watching the kids and further recalled that he entered an abandoned automobile near Deforest Park. On cross-examination, Gregory admitted that, prior to trial, he told Detective Marron he was applying for a job at Timec on the morning the crime occurred. Where, as here, a defendant provides specific (albeit contradictory) details about the events in question, he cannot allege "faded memories" as a ground for prejudice. (See generally Scherling v. Superior Court (1978) 22 Cal.3d 493, 505-506 [affirming ruling that defendant failed to establish prejudice from "faded memory" because he had previously provided specific details about the events in question].)

The third category of purportedly "lost evidence" consists of cell phone records that might have refreshed Gregory's memory as to where he was or who he talked to on the morning of the crime. During the trial court proceedings, Gregory submitted a declaration alleging that his cell phone carrier informed his counsel that "cell phone records between September 15, 2007 and October 15, 2007 were no longer available." The government, however, submitted evidence indicating that, in fact, Gregory's cell phone carrier retains individual phone records, including a log of all calls made and received, for a 24 month period. At the hearing on Gregory's motion to dismiss the information, his counsel stated that she had "verified" the government's assertion that Gregory's cell phone records were in fact available and that Defendant intended to subpoena them. Therefore, the record demonstrates that, despite the pre-arrest delay, Gregory had the ability to procure his phone records.

The remaining categories of purportedly lost evidence are too speculative to support a finding of "actual prejudice." (United States v. Lovasco (1977) 431 U.S. 783, 789-790 (Lovasco) [defendant required to establish "actual" rather than "speculative" prejudice].) First, Gregory argues that Bank of America videotapes might have recorded the robbery and shown that Gregory was not the perpetrator. Second, he argues that prior tenants who leased properties near GameStop might have been able to describe the perpetrators, but numerous businesses had left the area prior to Gregory's arrest. Gregory has presented no evidence that the Bank of America security cameras actually recorded the event or that any nearby tenants had any information about the robbery. Instead, as stated by Gregory's counsel, the defendant argues only that it is "possible that" someone "caught a glimpse . . . something in the direction of the two individuals that did rob the game shop." In other words, rather than providing specific facts showing that exculpatory evidence was lost, Gregory is merely speculating that exculpatory evidence could have been lost. It is well-established that mere "speculation about prejudice because . . . evidence [is] now unavailable is insufficient to discharge defendant's burden." (Shleffar v. Superior Court (1986) 178 Cal.App.3d 937, 946.)

Based on the record, there is no basis for concluding that Gregory suffered any prejudice from the pre-arrest delay.

b. The State has provided an adequate justification for the delay

Even if we assume that Gregory suffered some form of prejudice from the pre-arrest delay,4 the State has provided an adequate justification for its actions. Detective Marron provided a declaration stating that, after Gregory had been tied to the robbery through fingerprint evidence and eyewitness testimony, Marron wanted to locate and interview the suspect before seeking an arrest warrant.

We see nothing inappropriate or unreasonable in Marron's decision to try and locate and interview the suspect to obtain additional evidence prior to seeking an arrest warrant. California courts have repeatedly recognized that the State is "under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule `would subordinate the goal of orderly expedition to that of mere speed.' [Citation.]" (Boysen, supra, 165 Cal.App.4th at p. 777.) Similarly, in analyzing claims predicated on pre-arrest delay, the United States Supreme Court has "stressed that . . . `[p]rosecutors are under no duty to file charges as soon as probable cause exists . . . . [N]o one's interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.'" (Nelson, supra, 43 Cal.4th at p. 1252 [citing and quoting Lovasco, supra, 431 U.S. at pp. 790-792].) Gregory points to no case law or other authority indicating that Marron's attempt to collect additional evidence prior to seeking an arrest warrant constitutes unreasonable or unjustified delay.5

There is also no evidence that Marron was negligent in his effort to locate and interview Gregory. The record indicates that, on three separate occasions between January and March of 2008, Marron conducted surveillance on the apartment building where Gregory was known to reside, but was unsuccessful in locating him.6 In late January he put a "want" into the police system, indicating that Gregory should be detained if any officer came into contact with the suspect. Marron renewed the "want" in April. Having failed to locate Gregory, Marron prepared the case for an arrest warrant and submitted it to the district attorney in June. While Marron was on vacation, the district attorney requested additional information about some aspects of the case. Marron complied with the request upon his return and an arrest warrant issued on September 5, 2008. Marron's detailed account shows that he diligently attempted to locate Gregory and, having failed to do so, timely pursued an arrest warrant.

The record contains substantial evidence in support of the trial court's ruling that the pre-arrest delay in this case was justified and, as a result, outweighed whatever slight prejudice Gregory might have suffered.

B. There Was Sufficient Evidence to Support the Jury's Convictions

Gregory next argues that there was insufficient evidence to support his conviction. "The standard of review for evaluating a jury verdict is well established: `When reviewing the sufficiency of evidence to support a criminal conviction, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence. [Citations.] "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." [Citation.]' [Citation.]" (People v. Southard (2007) 152 Cal.App.4th 1079, 1085.)

The prosecution introduced numerous pieces of evidence implicating Gregory in the GameStop robbery. First, the victim identified Gregory as one of the assailants. Second, Gregory's fingerprints were found in Woods' car, which was stolen from the scene of the robbery. Third, Gregory provided inconsistent statements about his whereabouts on the morning the crime occurred.

Gregory argues that this evidence was not sufficient to support his conviction. First, he contends Woods's identification was not credible because Woods initially told Marron he "believed" Gregory was the assailant, but later testified at trial that he was "sure" Gregory was the perpetrator. Gregory also argues the identification was unreliable because, when explaining how he picked Gregory out of the photographic lineup, Woods said that he first concluded that "the other five did not stand out," and, when he saw Gregory, it "just clicked inside my head it was him." In Gregory's view, this explanation demonstrates that Woods "was only picking the person that most looked like the person that committed the crime and not the person who he was sure committed the crime." Additionally, Gregory points to the fact that: (1) Woods gave inconsistent statements about who was initially holding the gun when the two men entered the store, (2) Woods described the unmasked assailant as being six feet in height despite the fact that Gregory is only 5 feet 7 inches, and (3) Woods testified that he was never within seven feet of the assailants at any time during the robbery. Gregory argues that, based on all of these alleged defects in Woods' testimony, no rational juror could believe his identification.

To the extent Woods's comments and purported inconsistencies shed doubt on his testimony, they went to the weight and credibility of his identification. On appeal, we do not disturb the jury's resolution of those issues. (People v. Avina (1968) 264 Cal.App.2d 143, 147 ["[i]t is established that the strength or weakness of an identification are matters which go to the weight of the evidence and the credibility of the witnesses, and are for the observation and consideration of the jury"].) As our Supreme Court has made clear, "unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181; see also People v. Boyer (38 Cal.4th 412, 480 ["[i]dentification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime"].) Nothing in Woods's testimony renders his identification physically impossible or inherently improbable. Therefore, the jury was free to credit his eyewitness account.

Moreover, Gregory's participation in the crime was supported by uncontested evidence that police found Gregory's fingerprints in Woods's stolen automobile. Gregory contends that his trial testimony negates such evidence because he admitted that he had gone inside of the car and explained why his prints were in the car. The jury, of course, was not required to believe that testimony.

Finally, Gregory has offered no argument explaining the inconsistent statements he made regarding his whereabouts on the morning the crime occurred.

Based on Woods's eyewitness identification, the fingerprint evidence and other evidence in the record, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that Gregory committed the GameStop robbery.

DISPOSITION

The trial court's judgment of conviction is affirmed.

We concur:

PERLUSS, P. J.

WOODS, J.