Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA281894, Michael M. Johnson, Judge.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Dontae Ray Williams.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant Wilbur Lawtron Lawson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEEDINGS
On May 30, 2006, an amended information was filed charging appellants Wilbur Lawtron Lawson and Dontae Ray Williams, as well as Sean Thomas, with the murder of David Avila Rodriguez (Pen. Code, § 187, subd. (a)) and robbery (Pen. Code, § 211). The information alleged that the murder had been committed during the robbery (§ 190.2, subd. (a)(17)). In addition, with respect to both charges, the information alleged that Lawson personally fired or used a firearm (§ 12022.53, subds. (b) - (d)), that Williams personally used a firearm (§ 12022.53, subd. (b)), that a principal personally used a firearm (§ 12022, subd. (a)(1)), and that Williams was a minor of at least 16 years of age at the time of the crimes (Welf. & Inst. Code, § 707, subd. (d)(1)). Appellants and Thomas pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated. Thomas is not a party to this appeal.
The information also alleged that Thomas had suffered two prior convictions within the scope of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170. 12, subds. (a)-(d)), and had served two prior prison terms (§ 667.5, subd. (b)). The allegation regarding the prior prison terms were later stricken.
Lawson and Thomas’s trial was severed from that of Williams, who was tried first. After the close of evidence in Williams’s trial, the trial court determined that he was a minor of at least 16 years of age at the time of the crimes. On January 17, 2007, a jury found Williams guilty of first degree felony murder and second degree robbery, and found true the allegations that a principal had been armed with a firearm. The jury returned no verdict regarding the allegation that the murder had occurred while Williams committed the robbery, and the trial court declared a mistrial as to the allegation.
In the trial of Lawson and Thomas, on January 30, 2007, a jury found Lawson guilty of first degree felony murder and second degree robbery, and found true the allegations that the murder had occurred while Williams committed the robbery, and that a principal had been armed with a firearm. The jury was unable to reach a verdict regarding the remaining allegations against Lawson, and the trial court declared a mistrial as to them. The jury also found Thomas guilty of first degree felony murder and second degree robbery, and found true the allegations with respect to both crimes that a principal had been armed with a firearm. Because the jury returned no verdict regarding the gun use allegations against Thomas and the allegation that the murder occurred while he committed the robbery, the trial court declared a mistrial as to those allegations.
The trial court sentenced Lawson to life imprisonment without the possibility of parole plus one year as to the murder count, and to a four-year term as to the robbery count, which was stayed (§ 654). It sentenced Williams to life imprisonment plus one year on the murder count, and to an additional four-year term as to the robbery count, which was also stayed (§ 654) This appeal followed.
Because Williams raises no issues on appeal implicating the evidence presented at his trial, we summarize only the evidence presented at Lawson and Thomas’s trial. Williams’s sole issue on appeal relates to a restitution fine.
A. Prosecution Evidence
The key witnesses to the events connected with Rodriguez’s murder were Brandin Brinkley, Heng Bou, Guadalupe Rivera, and Osman Alvarado, Rivera’s brother. Brinkley testified as follows: At approximately 6:45 p.m. on February 24, 2005, he went to a 99¢ Store near Vermont and 61st Street. Outside the store, he encountered Lawson, who asked Brinkley where he could buy some gloves. Brinkley directed Lawson to the 99¢ Store. Brinkley later saw Lawson inside the store, and heard him say he wanted to buy two pairs of gloves. Lawson selected a pair of black gloves and a pair of red and black gloves. Brinkley left the store and went home.
Bou testified that on February 24, 2005, he was working in a donut store at 60th Street and Vermont. Approximately 20 to 30 minutes before he heard sirens and saw an ambulance, two Black male youths entered the donut store and bought donuts. They sat in the store, ate the donuts, and left before Bou heard the sirens.
Rivera testified that at about 7:15 p.m. on February 24, 2005, she drove to pick up her brother, Alvarado, near a Dollar Warehouse located at Vermont and 60th Street. As she passed the Dollar Warehouse, she saw two men standing outside it, together with a third man wearing a mask. All three men wore hooded sweaters. At the same time, she also saw Alvarado crossing the street. When Alvarado noticed her, he gestured that he was walking to the Dollar Warehouse. She parked, and saw the masked man -- who was the shortest of the three men outside the store -- follow Alvarado into the Dollar Warehouse. Inside the store, the masked man pointed a gun, while the other two men stood outside the store, watching him through a glass window. When the two men began to enter the store, the masked man abruptly left the store, and Rivera heard gunshots. The three men ran away, and another man emerged from the store, holding his back and saying he had been shot.
Rivera testified one of the two men looking through the window then had a mask “halfway on.”
Osman Alvarado, Rivera’s brother, testified that he went to the Dollar Warehouse to get something to drink. As he approached the store, he saw three African-American men standing outside. One of them wore a mask, and the others had sweater hoods over their heads. After Alvarado entered the store, he heard the masked man, accompanied by one of the other men, demand money, and a cashier respond, “Okay.” The third man stood in the store’s doorway as a lookout. When a struggle broke out involving the cashier, one of the robbers fired a gun, and Alvarado sought cover. After the robbers left, Alvarado saw money on the floor at the store’s entrance. Alvarado was unsure whether the masked robber or his accomplices held the gun. He never saw the robbers’ faces, and was unable to identify them.
LAPD officers who responded to the shooting discovered Avila Rodriguez wounded and lying on the ground. Rodriguez later died of a gunshot in his back. Investigating officers found a gun in front of the Dollar Warehouse, a pair of gloves approximately 200 feet from the Dollar Warehouse, and sales tags for gloves in the trash bin of the donut shop, which is approximately 80 feet from the Dollar Store. The gun belonged to Rodriguez’s friend, and Rodriguez kept it in the store for his protection. The tags from the trash can displayed Thomas’s fingerprints, and closely resembled the tags of gloves sold in the 99¢ Store. In addition, Thomas’s DNA matched DNA on one of the gloves found near the Dollar Store.
Investigating officers also interviewed Brinkley, Bou, and Rivera, and obtained videotapes from the security systems in the 99¢ Store and the Dollar Warehouse, which were played for the jury. Brinkley selected Lawson in a photographic lineup as the person shopping for gloves in the 99¢ Store. According to LAPD Detective Erika Nuttman, Bou initially told investigating officers that three men had been in the donut shop before the shooting. When Rivera was shown a photographic lineup, she identified Williams and Thomas as the two men with visible faces outside the Dollar Warehouse. The videotape from the 99¢ Store showed that Lawson bought two pairs of black gloves and one pair of red gloves, and the videotape from the Dollar Warehouse disclosed that the shooter wore red gloves, a hooded sweater, and something covering his face. The officers’ investigations and other evidence at trial established that Lawson is several inches shorter than Williams and Thomas.
Bou testified that he did not recognize the two Black males when he was shown a photographic lineup by investigating officers. According to Diana Paul, an LAPD criminalist, Bou refused to examine the lineup when she showed it to him.
At trial, Rivera testified that she did not recognize Thomas or Lawson as among the men she saw outside the store.
Williams tried to discard a firearm when he was arrested on March 6, 2005. LAPD criminalist Diana Paul testified that she was unable to determine whether the gun fired a bullet recovered from Rodriguez’s body.
In April 2005, LAPD Detective John Radtke interviewed Thomas and Lawson. According to Radtke, Thomas initially said he was in El Segundo on February 24, 2005, and denied any knowledge of the area surrounding the Dollar Warehouse. When Radtke told Thomas that his DNA had been found on a glove discovered near the Dollar Warehouse, Thomas said that he had intended to participate in the robbery and went to the donut shop. At the very last moment, he changed his mind, and stood across the street from the Dollar Warehouse while the robbery occurred. When he heard a gunshot, he ran away, and his glove fell off of his hand when he jumped over a bush.
The trial court permitted Radtke to testify regarding Thomas’s and Lawson’s statements during the interviews, in lieu of requiring the prosecutor to submit redacted video tapes or transcripts of the interviews to the jury. In so ruling, the trial court limited Radtke’s testimony to Thomas’s and Lawson’ statements about their own conduct, and instructed the jury that each defendant’s statements could be considered solely as evidence against the defendant, and not his co-defendant.
Radtke further testified that Lawson said that on February 24, 2005, he lived at his grandmother’s house at 6131 Harvard. Lawson initially stated that he did not recall visiting the 99¢ Store on the date of the robbery. When Radtke showed him photos from the store’s security system, Lawson acknowledged that he bought gloves there, but stated that he went to the donut shop where he met Williams -- who is his cousin -- and then returned to his grandmother’s house. Lawson asserted that he decided not to participate in the robbery because he did not want to get shot; he also denied that he gave red gloves to anyone else, and said he could not recall what he had done with the gloves he bought.
This address is within a half-mile of the Dollar Warehouse.
B. Defense Evidence
Lawson and Thomas presented no evidence at trial.
DISCUSSION
I.
Lawson contends (1) he was denied his right to a speedy trial, and (2) there is insufficient evidence to support his conviction. We disagree.
A. Speedy Trial Rights
Lawson contends the trial court violated his speedy trial rights under the federal and state Constitutions and section 1382. The Sixth Amendment of the United States Constitution guarantees the right to a speedy trial, as does the parallel but independent provision in article I, section 15 of the California Constitution. (People v. Johnson (1980) 26 Cal.3d 557, 562-563.) “Section 1382, which interprets the state constitutional right to a speedy trial [citation], provides that absent a showing of good cause, a defendant accused of a felony is entitled to a dismissal of the charges against him if he is not brought to trial within 60 days of the filing of the information.” (People v. Johnson, supra, 26 Cal.3d at p. 561; § 1382, subd. (a)(2).)
1. Underlying Proceedings
Lawson was arrested on March 5th or 6th of 2005. After the preliminary hearing, which occurred on January 25, 2006, Lawson entered not guilty pleas and denied the special allegations on February 8, 2006. At the arraignment and several subsequent hearings, Lawson formally waived the statutory time for trial. On June 28, 2006, he filed a motion for a separate trial under Bruton v. U.S. (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518, contending that each of his co-defendants had made statements inculpating him. With Lawson’s consent, the trial court eventually set the trial of Lawson and his co-defendants for November 27, 2006, thereby triggering the statutory guarantee that Lawson’s trial would begin no later than 10 days after that date, i.e., December 7, 2006 (§ 1382, subd. (a)(2)(B)).
Lawson’s motion for a separate trial was still pending on November 29, 2006, when the trial court inquired about the defendants’ readiness for trial. Lawson’s counsel announced that he was ready for trial, but Williams’s counsel required additional time to follow up on new information, and Thomas’s public defender was engaged in a trial trailing in another department.
When the trial court asked the prosecutor whether Lawson should receive an immediate and separate trial, the prosecutor responded that his preference was for a joint trial of Lawson and Thomas, and a separate trial for Williams. Although each defendant had made statements inculpating himself and his co-defendants, the prosecutor argued that Lawson and Thomas could be tried together: he believed that Lawson’s statements could be redacted, and that he could obtain Thomas’s conviction without introducing Thomas’s statements. The prosecutor declined to agree to a separate trial for Lawson alone, arguing that “three separate jury trials . . . would make it exceedingly difficult on the victims and on the witnesses.”
Lawson’s counsel responded that “the technical nonruling” on Lawson’s motion for a separate trial was insufficient grounds for delaying Lawson’s trial, and requested an immediate trial for Lawson. The prosecutor subsequently told the trial court that, absent further developments, he did not intend to introduce Thomas’s statements at trial. Over Lawson’s objection, the trial court found that there was good cause to continue the trial of all three defendants, reasoning that Williams’s counsel needed more time to address new information, that Thomas’s public defender was unavailable for trial, and that Lawson “in all likelihood” would be tried with Thomas. The trial court set a hearing on Lawson’s motion for a separate trial. At the subsequent hearings prior to Lawson’s trial, which began January 22, 2007, Lawson never raised any further objection to the delay of his trial.
2. Federal Speedy Trial Right
We begin with Lawson’s contention that he was denied his federal constitutional right to a speedy trial. “The federal speedy trial right attaches once a defendant is accused. [Citation.] A person stands accused once a formal indictment or information is filed or he or she is subject to the ‘actual restraints imposed by arrest and holding to answer a criminal charge.’ [Citation.]” (People v. Belton (1992) 6 Cal.App.4th 1425, 1429.) As the United States Supreme Court explained in Barker v. Wingo (1972) 407 U.S. 514, 530-532 (Barker), four factors determine whether a delay violates this right: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the extent of prejudice to the defendant.
There is no need to balance factors (1) through (4) unless the length of the delay is “presumptively prejudicial.” (Doggett v. U.S. (1992) 505 U.S. 647, 651-652 (Doggett).) “Prejudice is presumed when it is reasonable to assume sufficient time elapsed to affect adversely one or more of the interests protected by the speedy trial clause.” (Ogle v. Superior Court (1992) 4 Cal.App.4th 1007, 1020.) When a delay is not presumptively prejudicial, the reviewing court need not inquire further in concluding that a defendant’s federal speedy trial right has not been violated. (U.S. v. Comosona (10th Cir. 1988) 848 F.2d 1110, 1114.) Generally, federal courts have found that delays of less than one year are not presumptively prejudicial. (Doggett, supra, 505 U.S. at p. 652, fn. 1.) In determining the length of the delay, we exclude any periods regarding which the defendant requested continuances of the proceedings or formally consented to a delay of his trial. (People v. Seaton (2001) 26 Cal.4th 598, 634 [in seeking continuances and personally waiving statutory time, defendant relinquished his federal right to a speedy trial “for the period covered by each continuance”].)
Here, the record provided by Lawson does not establish that the delay of his trial was presumptively prejudicial. The period between Lawson’s arrest on March 5, 2005, and the beginning of his trial on January 22, 2007, was approximately 23 months. However, the record is silent regarding the approximately 10 1/2 month interval between Lawson’s arrest and his preliminary hearing, which occurred on January 25, 2006. During this period, Lawson was entitled to a prompt arraignment after his arrest (§ 825), followed by a preliminary hearing “at the earliest possible time” (§ 859b). On a silent record, we do not presume error. Accordingly, because the record does not show that the preliminary hearing was continued without Lawson’s consent, the interval preceding the preliminary hearing must be excluded from our analysis. Moreover, because Lawson formally waived his statutory speedy trial rights from February 8, 2006, through December 7, 2006, he also relinquished his federal speedy trial right within this ten-month interval. The period of delay relevant to our analysis is thus less than three months, which falls far short of the threshold for presumptive prejudice. (See U.S. v. Lugo (10th Cir. 1999) 170 F.3d 996, 1001-1002 [seven-month delay between defendant’s first appearance in court and trial is not presumptively prejudicial].) Consequently, Lawson’s federal speedy trial right claim fails on the record he has provided.
“‘For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.’. . . This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.” (People v. Clifton (1969) 270 Cal.App.2d 860, 862, quoting 3 Cal.Jur.2d (1952) Appeal and Error, § 260, pp. 781-782; see People v. Malabag (1997) 51 Cal.App.4th 1419, 1421-1422.) Accordingly, absent special circumstances, a criminal defendant’s failure to provide an adequate record precludes review of his or her contentions on appeal. (See People v. Siegenthaler (1972) 7 Cal.3d 465, 469; People v. Cummings (1993) 4 Cal.4th 1233, 1333, fn. 70.)
Even were we to assume that the interval preceding the hearing on February 8, 2006, was properly included in the period of delay, we would still find Lawson’s federal claim without merit. When the delay is presumptively prejudicial, we “consider[] the extent to which the delay exceeds the threshold point in light of the degree of diligence by the government and acquiescence by the defendant to determine whether sufficient prejudice exists to warrant relief.” (U.S. v. Beamon (9th Cir. 1993) 992 F.2d 1009, 1012.) Here, the period of delay crossed the 12-month threshold point after the trial court continued Lawson’s trial on November 29, 2006. We therefore assess the prejudicial effects of the delay of the trial to January 22, 2007, in light of the grounds for the continuance and Lawson’s conduct in connection with it.
We find guidance regarding this inquiry in Barker and Doggett. In Barker, the court explained: “[D]ifferent weights should be assigned to different reasons [for delay]. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as [prosecutorial] negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531, fn. omitted.)
Similarly, the court in Barker tied the assessment of prejudice to the defendant’s degree of vigor in demanding a trial: “The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Barker, supra, 407 U.S. at pp. 531-532.)
The courts in Barker and Doggett also identified a significant relationship between the length of the delay and the assessment of prejudice. As the court explained in Barker, the federal speedy trial right is designed to protect three interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” (Barker, supra, 407 U.S. at p. 532, fn. omitted.) Although the third interest is “the most serious,” the other interests assume great significance in cases of lengthy delay. (Ibid.) Thus, in Doggett, the court held that an 8 1/2 year delay arising solely from the government’s negligence violated the defendant’s speedy trial right, even though the defendant failed to make a particularized showing that he actually suffered any prejudice from the delay. (Doggett, supra, 505 U.S. at pp. 654-658.)
In view of these principles, the Barker factors, taken collectively, do not weigh in favor of Lawson’s speedy trial claim. Regarding the second factor, that is, the reasons for the delay, the trial court continued Lawson’s trial to permit a joint trial with Thomas, whose public defender was then engaged in a different trial. Recognizing that joint trials serve the public interest, federal courts have held that delays due to the legitimate needs of co-defendants and their counsel in a joint trial militate against a defendant’s speedy trial claim. (U.S. v. Vega Molina (1st Cir. 2005) 407 F.3d 511, 532-533 [“busy trial schedules” of co-defendants’ counsel in protracted, complex joint trial constituted “excellent reasons for delaying the trial”]; U.S. v. Davenport (11th Cir. 1991) 935 F.2d 1223, 1239-1240 [problems facing co-defendants’ counsel, “such as unavailability, inadequate time to prepare, and conflicts of interest,” were “at worst, neutral reasons” for delay].) Moreover, regarding the third factor, that is, Lawson’s assertion of his right, Lawson objected to the continuance and requested a trial, but never sought dismissal of the action or any other remedy. In our view, Lawson’s limited pursuit of his right is evidence that he viewed the delay as of only modest significance.
Additionally, the first and fourth factors -- the length of delay and the existence of prejudice -- do not favor Lawson’s claim. The period of delay is far less than the 8 1/2 year period at issue in Doggett, and is within the range in which federal courts, on similar facts, have found no speedy trial violation. (U.S. v. Vega Molina, supra, 407 F.3d at pp. 532-533 [18 months]; U.S. v. Davenport, supra, 935 F.2d at pp. 1239-1240 [21 months].) In view of the brevity of the delay, Lawson was obliged to make a particularized showing of actual prejudice. (U.S. v. Beamon, supra, 992 F.2d at p. 1014 [delay in co-defendants’ joint trial due to governmental negligence amounting to 20 months or less is insufficient to relieve them of burden to make a particularized showing of actual prejudice].) This he has failed to do. Regarding prejudice, he argues only that the delay dimmed the memory of several prosecution witnesses, and thus impaired his ability to cross-examine these witnesses. However, as the court explained in Barker, delay is ordinarily advantageous to the defendant when the memories of prosecution witnesses fade, as this results in a weakening of the prosecutor’s case. (Barker, supra, 407 U.S. at p. 521.) Here, Lawson presented no witnesses or evidence in his defense at trial, and he offers no credible explanation as to how the faded memories of the prosecution witnesses operated to his disadvantage. In sum, Lawson was not denied his Sixth Amendment right to a speedy trial.
Lawson’s reply brief argues for the first time on appeal that he was incarcerated for the entire period between his arrest and trial, and this incarceration constituted prejudice for the purpose of his federal speedy trial claim. Because this contention is not found in his opening brief, Lawson has forfeited it. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, pp. 627-629.) However, even if we were to address it, we would conclude that it lacks merit. As we have explained, Lawson relinquished his federal speedy trial rights for all but a 13-month period of his incarceration. In Barker, the United States Supreme Court concluded that the prejudice to the defendant from a 10-month period of incarceration was only minimal. (Barker, supra, 407 U.S. at p. 534.)
Lawson also contends that the delay of his trial denied him due process under the Fifth and Fourteenth Amendments of the United States Constitution (see U.S. v. MacDonald (1982) 456 U.S. 1, 7). It is unnecessary for us to address respondent’s argument that Lawson forfeited this contention by failing to assert it before the trial court, as the contention fails for want of a showing of actual prejudice from the delay. (U.S. v. Lovasco (1977) 431 U.S. 783, 789; People v. Horning (2004) 34 Cal.4th 871, 895.)
2. State Speedy Trial Rights
Lawson’s contentions under California law also fail. The statutory right to a speedy trial under section 1382 is forfeited “unless the defendant both objects to the date set and thereafter files a timely motion to dismiss.” (People v. Wilson (1963) 60 Cal.2d 139, 146; see People v. Anderson (2001) 25 Cal.4th 543, 605.) Here, Lawson never made a motion to dismiss, and thus forfeited any contention that his statutory speedy trial rights were violated. Moreover, even in the absence of a forfeiture, we would conclude that Lawson’s statutory claim fails in light of section 1050.1, which provides that when two or more defendants are to be tried jointly and a co-defendant’s trial is continued for “good cause shown,” the continuance also constitutes “good cause to continue the remaining defendants’ cases so as to maintain joinder.” Because the unavailability of Thomas’s public defender provided good cause to continue Thomas’s trial (see People v. Johnson, supra, 26 Cal.3d at p. 567), the trial court properly continued Lawson’s trial at the prosecutor’s urging.
As our Supreme Court has explained: “[I]t is . . . well settled that even after . . . an objection[,] ‘There is no duty incumbent on the court to order dismissal under section 1382 unless the defendant demands it’ . . . [citations.]” (People v. Wilson, supra, 60 Cal.2d at p. 147, italics omitted.)
Section 1050.1 provides in pertinent part: “In any case in which two or more defendants are jointly charged in the same complaint, indictment, or information, and the court or magistrate, for good cause shown, continues the arraignment, preliminary hearing, or trial of one or more defendants, the continuance shall, upon motion of the prosecuting attorney, constitute good cause to continue the remaining defendants’ cases so as to maintain joinder.”
Lawson’s statutory claim would also fail for want of a showing of prejudice. (People v. Martinez (2000) 22 Cal.4th 750, 769 [defendant who asserts statutory speedy right claim on appeal without seeking dismissal before trial court must establish prejudice from denial of statutory rights].)
To the extent that Lawson’s claim under the California Constitution survives the absence of a motion to dismiss before the trial court, it fails on other grounds. Although the constitutional speedy trial guarantee supports claims independent of section 1382, such claims require a showing of prejudice. (People v. Anderson, supra, 25 Cal.4th at p. 605; People v. Martinez, supra, 22 Cal.4th at pp. 766-767.) When a claimed speedy trial violation relies solely on the state constitution, the defendant is obliged “to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge,” and the court determines the existence of a violation by weighing this prejudice against the justification from the delay. (People v. Martinez, supra, 22 Cal.4th at pp. 766-767.) Because Lawson has shown no impairment to his defense from the delay (see pt. A.2., ante), his state constitutional claim must be rejected. (See People v. Anderson, supra, 25 Cal.4th at p. 605.)
In People v. Anderson, supra, 25 Cal.4th at page 605, footnote 22, our Supreme Court stated it had not resolved whether the forfeiture principles applicable to statutory speedy trial claims also govern claims under the California Constitution.
B. Substantial Evidence
Lawson contends his convictions for murder and robbery fail for want of substantial evidence. He argues there is insufficient evidence that he participated in the robbery that resulted in Rodriguez’s death.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which the determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In our view, there is ample evidence to support Lawson’s conviction. The record includes evidence that shortly before the robbery, Lawson bought three pairs of gloves in the 99¢ Store, including a pair of red gloves, which Lawson put on in the store. According to LAPD Detective John Radtke, Lawson admitted he then met Williams in the donut shop, where they apparently discussed the robbery of the Dollar Warehouse. Bou initially indicated to investigating officers that three men met in the donut shop before the robbery, and Thomas’s fingerprints were found on glove tags in the donut shop’s trash can. In addition, the trial evidence established that Lawson is shorter than Williams and Thomas; Rivera identified Williams and Thomas as the two unmasked men outside the Dollar Warehouse, and testified that the masked robber was shorter than Williams and Thomas. The videotape from the Dollar Warehouse’s security system established that the masked robber wore red gloves. This evidence, coupled with Lawson’s shifting statements to Radtke when confronted with a videotape from the 99¢ Store, supports the reasonable conclusion that Lawson was the masked robber. (See People v. Duran (2001) 94 Cal.App.4th 923, 933-934 [defendant’s willfully false statements may constitute evidence of guilt].)
Lawson contends that in examining the record for substantial evidence, we must assume that he was not the masked robber because the evidence established that the masked robbery was the shooter, but the jury did not return a verdict on the allegation that Lawson personally used a firearm. He is mistaken. Section 954 states in part: “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” This provision represents a recognition that inconsistent verdicts often reflect “‘“not . . . the confusion but the mercy of the jury.”’” (See People v. Amick (1942) 20 Cal.2d 247, 252, quoting People v. Horowitz (1933) 131 Cal.App. Supp. 791, 793.)
As the court explained in People v. Lopez (1982) 131 Cal.App.3d 565, 569-571 (Lopez), the principle underlying section 954 permits appellate courts to examine the entire trial record for substantial evidence to support a conviction on a particular count, regardless of whether the jury made determinations with respect to other counts or special allegations that may be factually inconsistent with the conviction. In Lopez, the defendant was charged with six counts of assault with a deadly weapon, each of which was accompanied by an allegation that the defendant had personally used a firearm. (Lopez, 131 Cal.App.3d at pp. 568-569.) The evidence at trial disclosed that the defendant, along with several other men, had participated in multiple shootings at a holiday picnic. (Ibid.) The jury found the defendant guilty on each count of assault with a deadly weapon, but found the gun use allegations not true. (Id. at p. 569.)
On appeal, the defendant contended that the court could affirm his convictions only if there was substantial evidence that he had acted as an aider and abettor, arguing that the jury’s special findings barred the court from examining the record for substantial evidence that he had been the direct perpetrator of the shootings. (Lopez, supra, 131 Cal.App.3d at p. 569.) Pointing to the well established principle “of refusing to invalidate an inconsistent jury verdict if it is otherwise supported by substantial evidence,” the court held that it was “not limited to [the defendant’s] proffered theory in [its] examination of the sufficiency of the evidence.” (Id. at p. 571.) It reasoned that section 954 embodies a broad concept of “jury largesse” that attributes inconsistencies in verdicts to “‘acts of leniency’” rather than “‘“‘acts of stupidity’”’” by the jurors. (131 Cal.App.3d. at p. 571, quoting People v. Amick, supra, 20 Cal.2d at p. 252.) In view of Lopez, the jury’s failure to return a verdict regarding the personal gun use allegation against Lawson does not limit the scope of our review for the existence of substantial evidence.
Lawson suggests that the jurors were divided as to whether he was the masked robber because it requested a read-back of Radtke’s testimony about Lawson’s interview before it reached its verdict. Although this request indicates that the jury examined the evidence with care, it does not show that the failure to return a verdict was not ultimately the product of leniency or mercy on the part of some of the jurors.
Lawson’s reliance on Pulido v. Chrones (9th Cir. 2007) 487 F.3d 669 is misplaced, as that case is distinguishable. There, the defendant was charged with murder and robbery, and the jury received erroneous instructions that effectively eliminated an element of felony-murder, as applicable to aiders and abettors. (Id. at pp. 672-674.) The jury returned a special circumstance finding of robbery felony-murder, but deadlocked on whether the defendant had personally used a firearm during the robbery. (Id. at p. 672.) In assessing the instructional error, the Ninth Circuit assumed that the jury found the defendant had not personally murdered the victim, and concluded that the error constituted per se structural error. (Id. at pp. 672-676.) Because Pulido v. Chrones does not discuss the jury’s deadlock on the personal gun use allegation in connection with a review for the existence of substantial evidence, it is not authority on the question before us. In sum, the record discloses sufficient evidence to support Lawson’s conviction.
II.
Appellants contend that the abstracts of judgment in their cases must be amended to reflect that at Williams’s sentencing, the trial court imposed a restitution fine of $5,400.23 (§ 1202.4), to be paid jointly and severally by appellants and Thomas. We agree. Such awards may be imposed jointly and severally on co-defendants. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) Here, the trial court ordered that liability for the fine was to be joint and several with respect to appellants and Thomas, but the abstracts of judgment for appellants indicate that they are each individually responsible for the fine. Respondent concedes that the abstracts of judgment are incorrect. In view of this discrepancy, the abstracts of judgment must be amended to reflect the trial court’s oral pronouncement. (People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
DISPOSITION
The superior court is directed to prepare amended abstracts of judgment for appellants to reflect liability for the restitution fine under section 1202.4 is joint and several with respect to appellants and Thomas. The judgments against appellants are affirmed. The superior court is also directed to forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
We concur: EPSTEIN, P. J., SUZUKAWA, J.