Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Nos. BF116022A, BF116022B David R. Lampe, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant George Tyler.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Mavis Watson.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant George Tyler was convicted of murdering his girlfriend’s five-year-old son, Darion. Tyler’s mother, codefendant Mavis L. Watson, was convicted of being an accessory after the fact. On appeal, they contend (1) the trial court erred by denying Tyler’s Batson/Wheeler motions; (2) the trial court erred in denying Watson’s motion to sever her trial from Tyler’s; (3) the trial court erred in admitting autopsy photographs; (4) Watson is entitled to more conduct credits; and (5) Tyler’s abstract of judgment is incorrect. We will vacate Tyler’s sentence and remand for correction of his abstract of judgment. In all other respects, we will affirm.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson), overruled in part by Johnson v. California (2005) 545 U.S. 162; People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
PROCEDURAL SUMMARY
On March 23, 2007, the Kern County District Attorney charged Tyler with second degree murder (Pen. Code, § 187, subd. (a); count 1) and assault of a child under the age of eight (§ 273ab; count 2). The same information charged Watson with being an accessory after the fact (§ 32; count 3).
All statutory references are to the Penal Code unless otherwise noted.
On July 31, 2009, a jury found Tyler and Watson guilty as charged. The trial court sentenced Tyler to prison for 25 years to life on count 2, and 15 years to life on count 1, stayed pursuant to section 654. The court denied Tyler credit for time served pursuant to section 2933.2. The court sentenced Watson to prison for the midterm of two years, and granted her 56 days of custody credits pursuant to section 4019.
FACTS
In August 2006, Tyler had been living with his girlfriend, Dionna, in her house in Rosamond for about two years. They lived with four children-their baby and Dionna’s three other children, five-year-old Darion, four-year-old Khaloni, and three-year-old Kenneth. Tyler’s mother, Watson, lived about 30 minutes away.
Tyler was prohibited by a court order from being in the same home as the children, but Dionna knowingly violated the order. She lied to the social workers and told them that Tyler did not live with her and the children, and she told the children to lie also. She had witnessed Tyler hit the children, but she had not reported it to the authorities.
On the evening of August 10, 2006, Tyler’s friends, Terrance and Derrick, came over to the house to play dominoes and drink beer. While the three men were playing, five-year-old Darion came into the room and talked to Tyler about tying his shoes. Tyler asked Darion who had taught him how to tie his shoes, and Darion responded that his mother had taught him. Tyler grabbed Darion by his shirt, pulled him close, and asked him the same question two more times. Tyler did not like Darion’s answer, so he slapped him. Dionna was standing nearby. Terrance told Tyler to leave Darion alone because he did not really understand what Tyler was talking about. Terrance and Derrick tried to tell Tyler how to explain things to children. Tyler pushed Darion away, and both Darion and Dionna left the room.
About 20 minutes later, Dionna left the house, leaving all the children alone with the three men. A short time later, Terrance and Derrick left as well.
Dionna went to pick up her cousin, Kenna, who was going to help care for the children over the weekend. When they stopped at Dionna’s father’s house, Dionna and Tyler spoke on the telephone. Tyler told her to “hurry up and get [her] ass back here” because Darion had said, “Fuck you” to him, and he was “so sick of this shit.” Dionna hung up and told Kenna they had to go. She said, “Oh, my God, he’s about to beat my [….]”
Four-year-old Khaloni was in the boys’ room, which was next to the master bedroom, because Tyler told her to get into Darion’s bed. From there, she could hear from the master bedroom Darion screaming, “Mommy, ” and Tyler asking him, “Who taught you how to tie your shoes?” Khaloni also heard “[w]hooping sounds, like slapping sounds” and a whipping sound from a weight lifting belt.
About 20 minutes after Dionna called Tyler, she and Kenna arrived back at the house. Dionna knocked on the door because she did not have her house keys. Tyler asked, “Who is it?” and opened the door when Dionna replied.
Tyler stood at the door in wet, blue boxer shorts. He was holding Darion over his shoulder with his left arm. Darion was naked, limp, and motionless. His eyes were rolled back in his head and blood was coming out of his mouth. His bottom teeth had been knocked out and he was covered in bruises. Dionna thought he was dead and she started screaming, “My baby.”
In the front bathroom, there was water in the bathtub and Darion’s teeth were on the counter.
Tyler grabbed Dionna and took her to the master bedroom. The shower was running in the master bathroom and the floor was wet. The other children were in the boys’ room and the baby was screaming on the bed in the master bedroom. Tyler told Dionna that he “whooped” Darion with his weight lifting belt because Darion would not stay still. Tyler pointed to the bloody weight lifting belt on the bedroom floor. The belt was four or five inches wide and had a big buckle. Tyler’s clothes and bloody shoes were also on the bedroom floor. Tyler repeatedly told Dionna he did not mean to do it and he was going to kill himself.
Darion jerked and Dionna realized he was not dead. She grabbed him and patted his arms. She ran to the front of the house and picked up the telephone to call the police, but Tyler came up behind her, stood with his body against hers, and asked what she was doing. Dionna was afraid Tyler was going to beat her, as he had done more than 100 times in the past. Dionna explained she was just going to call Watson. Dionna pleaded with Tyler to let her call Watson because they needed some help. Dionna called Watson and screamed that Tyler had killed Darion and she needed Watson to come help her. Tyler screamed that he did not kill Darion. When Dionna said that Darion was going to die, Watson said she was on her way.
Kenna repeatedly told Tyler and Dionna they needed to take Darion to the hospital, but Tyler said he would go to jail and Dionna said her children would be taken away. Dionna said Darion was going to be okay.
Dionna and Kenna put all the children in the car to go get help. Tyler came out and told Dionna to get in the car. Kenna thought they were going to the hospital, but, to her surprise, Tyler turned the opposite direction and drove them to Watson’s house. Dionna was talking to someone on a cell phone, saying, “He done killed my baby.” On the way, they met Watson’s car and both cars pulled over. Watson moved Dionna and Darion to her car. Watson asked Tyler, “Boy, what have you done?” Watson told Kenna, “You ain’t seen nothing, and you don’t know nothing.” Kenna took the statement as a threat. Watson then drove Dionna and Darion to Watson’s house.
Tyler drove Kenna and the remaining children to the house of his sister, Tiffinay. On the way, he explained to Kenna that he “didn’t mean to do it[.]” He said, “[T]he reason why I kept whooping [Darion] is because [I] told him to stand up, and he wouldn’t stand up.” Tyler said he was going to kill himself and he needed to get his gun. After Tyler picked up Tiffinay and her boyfriend, he started to tell them what happened, but the boyfriend told Tyler to wait until Kenna got out of the car. Tyler drove to Watson’s house.
At Watson’s house, Watson took Dionna and Darion to her bedroom. Darion lay on the bed unconscious. He was black and blue and he had several knots on his head. His mouth was swollen and would not shut. Tiffinay’s boyfriend put ice on Darion’s head. Darion’s breathing had slowed and Dionna told Watson they needed to go to the hospital, but Watson just screamed at her and called her a stupid bitch. Watson took all the telephones in the house, including Kenna’s cell phone, and said, “[A]in’t nobody using [my] goddam phones.” Kenna, who was in another room with the children, could hear Darion’s labored breathing. She could hear Dionna crying and Watson telling her to shut up.
That night, Darion slept with Watson on Watson’s bed. Dionna watched Darion through the night. The next morning, Dionna saw him stop breathing. She said to Tiffinay, “You[’ve] got to save my baby. He’s dead.” Watson told Tiffinay to take Dionna and Darion to the local clinic because “there wasn’t no fucking ambulance coming out to her house.” Dionna believed Watson sent Tiffinay with her to watch her.
After they left, Watson entered the room where Kenna was with the children and told Kenna, “You better not say nothing, ” and “You don’t know nothing.” Watson repeated this to her throughout the day. When they were in the kitchen, Watson made these statements to Kenna while standing next to a gun that was on the counter. Kenna perceived the presence of the gun as a threat. Kenna knew that Watson and her family were very violent people who were involved with drugs and had used guns in a violent way in the past. Kenna thought they might kill her when the whole thing was over. At some point, Watson took the baby, then put Kenna, Khaloni, and Kenneth in another bedroom that had a deadbolt and locked the door for a few hours.
Kenna testified that at some time during the day, she showered the children and noticed bruises on Kenneth and Khaloni.
From the clinic, Darion was air-lifted to a children’s hospital in Hollywood, where he remained on life support for hours until he died. At both the clinic and the hospital, Dionna claimed that Darion was injured when she ran over him with a car, but the medical personnel did not think the injuries were consistent with her explanation. Dionna did not tell the truth because the rest of her children were still at Watson’s house and she knew there was a gun at the house. Dionna felt her children were being held hostage and she was afraid Watson or Tyler would kill them.
Dionna said she gave a truthful version of the events to law enforcement during the investigation.
Meanwhile, Watson took Kenna, Khaloni, and Kenneth to Dionna’s house. On the way, Watson stopped in Saddleback and conducted a drug deal. At Dionna’s house, Watson parked on the street, got out, and told the rest to stay in the car. But after about five minutes, Kenneth told Kenna he had to use the bathroom, so she took him into the house. Kenna saw Watson cleaning the front bathroom where Darion’s teeth were on the counter. She was cleaning the bathtub and wiping off the counter. She told Kenneth to use the toilet, then told them to get out and get back in the car. Ten or fifteen minutes later, Watson came out of the house carrying the weight lifting belt, the shoes and boxer shorts Tyler had been wearing the previous night, the clothes Darion had been wearing the previous night, and a bag of papers. As they drove back to Watson’s house, Watson gradually threw these items out of the car into the desert. When they got to Watson’s house, Watson told Kenna to sit there and again warned her not to say anything. Because Watson had taken all the telephones, Kenna could not call anyone.
After about one and one-half hours, a social worker knocked on the door and stated she was taking the children into protective custody. Watson gave her Khaloni and Kenneth, but told her the baby was not there. The social worker returned five minutes later with a police officer and demanded the baby. Watson left the house and returned with the baby. When the police were present, Kenna asked Watson if she could leave, and she let her go.
Kenna testified that Watson falsely set herself out as a day care provider. “She had something posted as a day care, but she didn’t really take care of kids. It was like a fake day care.”
Blood was later found on the cabinets and in the shower of the master bathroom and on the wall and door between the master bathroom and master bedroom. The doors to the master bedroom and the front bathroom were damaged, the wall near the door to Darion’s room was dented, and the wall in the den had two holes in it. According to Dionna, the blood and damage were not present before the night that Tyler beat Darion.
An autopsy revealed Darion’s extensive injuries. He had contusions, abrasions, and bruises all over his head and face. He had multiple linear bruises extending down the side of his face, caused by a linear object, such as a belt, and he had abrasions on his chest and back. He had suffered internal bleeding in his head, brain, chest, back, colon, arms, and legs. His injuries were not consistent with having been run over by a vehicle. His painful death-ruled a homicide-was caused by complications, such as brain swelling and organ failure, resulting from blunt force trauma.
This evidence was presented through the pathologist’s testimony and photographs of the autopsy.
Law enforcement arranged a recorded telephone conversation between Dionna and Tyler. In it, Tyler stated that he did not know if he should kill himself. He asked Dionna, “[I]s there a way you can tell [‘em] you know something else?” He suggested that she could say her cousin, Deshon, did it. Tyler referred to Darion’s death as an accident.
In an August 31, 2006 interview with law enforcement, Watson claimed that Dionna had been smoking marijuana and may have been driving under the influence when she hit Darion with her car. Watson claimed that Darion seemed normal when Dionna brought him to Watson’s house, but Darion told her that night that he had been hit by a car. Watson, who ran a day care business, said she would be able to recognize a hurt child, and she did not notice any bruises on Darion. She said she went to Dionna’s house that day to get clothes and food for the children. She had not seen Tyler since they had all gone to Bakersfield before Darion’s death.
Tyler’s Defense
The social worker who came to Watson’s house to pick up the children did not see a weapon in the house. Kenna did not say anything to her other than that her aunt was a social worker.
An officer testified that he spoke to Dionna on August 10, 2006, to investigate a mark found on Kenneth’s body in June 2006. Dionna took responsibility for the mark, explaining she had spanked Kenneth. She assured the officer that Tyler was not living in her home. The following day, the officer heard what had happened to Darion. He sent officers to the hospital, but Dionna left when they arrived.
When the officer spoke to Khaloni on August 11, 2006, she said Tyler had never struck her, but Dionna had whipped her the previous day. She appeared to mean she had spanked her with a belt. She said Tyler had not whipped Darion until this occasion, and had done so because he would not lie down and take a nap. She did not mention tying shoes.
On cross-examination, the officer testified that Kenna told him Watson and her family had a very violent history and she was afraid of them. Watson was involved in drug sales, buying and selling stolen guns, check fraud, and welfare fraud. Kenna tried to distance herself from the family, and she felt threatened and intimidated as a witness.
The officer interviewed Dionna on August 12, 2006. She told him that she called Tyler when she was out on August 10, 2006, because she was afraid he would be mad that she had been gone too long. He told her that he had to whip Darion because he said, “Fuck you, ” but she did not believe it because Darion was afraid of Tyler and Darion would never say that.
Khaloni told the deputy that Tyler was mean because he whipped people with a belt and he had whipped and killed Darion. She said Tyler also whipped Kenneth the same night, and the deputy found bruises on Kenneth.
At the hospital, Dionna told officers that she ran over Darion with her car two times as she was backing up to her house.
When Watson’s husband, Curtis, went to pick up Tiffinay from the hospital, Dionna came running out after her and got in the car too. Curtis asked Dionna, “You’re not going to stay at the hospital?” and she said she did not want to stay there with those people. Curtis thought she was referring to Darion’s father’s relatives. Curtis did not see Tiffinay make any threats to Dionna.
Dionna later told an officer that she fled the hospital because she got scared when she saw officers examining her vehicle. She was afraid the officers would arrest her.
A Los Angeles officer testified that in February 2004, he was pursuing a suspicious vehicle that refused to stop. The vehicle pulled over, Dionna got out, and the vehicle continued to evade the police. The vehicle stopped in an apartment complex and the driver (Kenneth’s father) ran, but was eventually apprehended. Darion, Khaloni, and Kenneth were left inside the vehicle.
Watson’s sister-in-law, Chyrel, testified that she had seen Dionna write a bad check and then run out of the grocery store when she was discovered. Chyrel witnessed Dionna striking Khaloni with a belt, throw a shoe at her, and call her a bitch. Chyrel’s husband also witnessed Dionna discipline her children inappropriately. Dionna admitted to Chyrel that she had run over Darion with the car and that Tyler was not involved, but Chyrel never reported this to the police.
Tyler’s ex-girfriend, Latisha, testified that she and Tyler lived together from 2002 to 2005. She had three young children of her own and they had a child together. Tyler was a good father to all the children and the children loved him. He did not discipline the children; that was Latisha’s job.
Latisha’s daughter, Tiaunee, testified that Tyler was good to her and her brothers. He never spanked them.
Latisha’s sister, Ariell, testified that Latisha and Tyler had a happy relationship. They lived together and Ariell sometimes stayed with them. Latisha and Tyler had a child together and Latisha also had her own children. Ariell observed that Tyler took care of them well and responsibly. She never saw him physically discipline a child. She said he was not the type of person who would beat a child.
Kenna’s high school teacher believed Kenna was dishonest and would lie to cover for her friends. She was loud, obnoxious, and disruptive to the educational process. She had received numerous referrals for bad behavior at school.
Watson’s Defense
Watson presented photographs to be admitted, but did not otherwise present a defense.
Rebuttal
Officers recovered a pair of extra-large blue gym shorts from the desert along the highway.
DISCUSSION
I. Batson/Wheeler Motion
Tyler contends the trial court erred in denying his motions under Batson and Wheeler made after the prosecutor exercised peremptory challenges against a disabled prospective juror and an African-American prospective juror. Watson joins. We conclude substantial evidence supported the trial court’s findings.
At trial, Watson joined in only one of the two motions.
A. Law
“The governing principles are well settled. ‘Under Wheeler, supra, 22 Cal.3d 258, “[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against ‘members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds’-violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. [Citations.]” [Citation.] “Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. [Citations.]”’ [Citation.]” (People v. Taylor (2010) 48 Cal.4th 574, 611.) The federal constitutional right was established by Batson, and the California counterpart was recognized by Wheeler. (People v. Bell (2007) 40 Cal.4th 582, 596.)
When a Batson/Wheeler motion is made, the trial court conducts a three-part inquiry. First, the defendant must make a prima facie case by showing that the totality of the circumstances gives rise to a reasonable inference of discriminatory purpose. Second, if the defendant makes out a prima facie case of discriminatory purpose, the burden shifts to the prosecution to adequately explain its peremptory challenges by offering bias-neutral justifications for the strikes. Third, if such an explanation has been given, the trial court must decide whether the defendant has proven purposeful discrimination. (People v. Bell, supra, 40 Cal.4th at p. 596.)
In the first step, the defendant “‘must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [Citation.] ‘[The] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 186.) “[C]ertain types of evidence may be especially relevant: ‘[The defendant] may show that [the prosecutor] has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. [The defendant] may also demonstrate that the jurors in question share only this one characteristic-their membership in the group-and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of [the prosecutor] to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, … the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 342.)
If the trial court denies the motion without finding a prima facie case of group bias, the reviewing court considers “the entire record of voir dire. [Citations.]” (People v. Howard (1992) 1 Cal.4th 1132, 1155.) Because Batson/Wheeler motions call upon trial judges’ personal observations, we review their rulings with deference on appeal. We examine the record to determine whether substantial evidence supports the trial court’s findings on the question of purposeful racial discrimination. (People v. Bonilla, supra, 41 Cal.4th at pp. 341-342.) “If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.” (People v. Howard, supra, at p. 1155.) “It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 541.)
B. Facts
During voir dire, the trial court called Ms. P. The court inquired, “[D]o you transfer from that chair, or do you have to stay in the chair?” Ms. P. answered, “I can do either, but I need assistance.” When the court was asking prospective jurors their occupations, Ms. P. stated she was a full-time college student in child psychology. She lived with her mother on the east side of town, and she had no children. Her mother was self-employed, taking care of aquariums. Ms. P. was not excused in the first round of challenges, but after the next set of questions, the prosecution exercised a peremptory challenge to excuse her.
Later, Mr. W. was called from the venire. In response to the court’s questions, Mr. W. stated, “I’m a head operator for a major oil company in the sales department.” He said he had no children and he lived on the southwest side of town. In response to Tyler’s counsel’s question about being objective in a highly emotional case, Mr. W. stated, “You listen to all the evidence and make a decision after that.” Counsel asked, “You haven’t heard anything that makes you think [you] couldn’t be fair in this kind of a case?” Mr. W. responded, “No.” The prosecutor also posed a question to Mr. W.: “Mr. [W.], do you have any prior military experience?” Mr. W. answered, “No.” The prosecution exercised a peremptory challenge to excuse Mr. W.
At this point, Tyler’s counsel raised a Batson/Wheeler motion, arguing that the prosecution had systematically excluded “Whites and females and a disabled person.”
Regarding Ms. P., Tyler’s counsel stated:
“And then we had juror 1, Ms. [P.], who I don’t know if the record reflects, she’s in a wheelchair, and I don’t want to describe her medically, but it appears that she has some kind of impairment that prevents her from walking and having complete body control, has a little bit of a tremor, just to my observation.”
The court responded:
“I’m not certain that somebody suffering from what I observed was some type of probable cerebral palsy is a cognizable group, but that notwithstanding, merely pointing out that those types of people have been excluded is not sufficient to raise a reasonable inference in my mind that any act of discrimination has occurred as a result of the peremptory challenges; and I [find], therefore, that the prima facie showing was not made.”
The prosecutor explained:
“And [Mr. S.;] didn’t have a leg. He had to walk with the use of crutches, and so if we were looking in terms of disabilities, that’s who the Defense kicked when they were kicking at that point all Whites and one person who I guess could be labeled as disabled. So that’s the reason that I found it to be somewhat disingenuous in bringing the Wheeler motion at that point.” (Italics added.)
The court then turned to the subject of Mr. W. and asked Tyler’s counsel to state his motion. Tyler’s counsel explained that although Mr. W. was the only African-American excused by the prosecutor, there were very few African-American prospective jurors left and Mr. W. seemed like an average person who would be appealing to the prosecution.
The prosecutor explained that he had left an African-American in the jury box, and he believed three more African-Americans were in the venire.
The court considered various factors, then found no prima facie showing of discrimination. When the court invited the prosecutor to put his reasons on the record, the prosecutor stated:
“Mr. [W.] was part of the veneer [sic], … and he was part of about six people that were seated there …, and it was striking to me when he walked by me to sit down there … that he wore camouflage pants and a brown T shirt, which to me, in my opinion, is completely inappropriate for coming to court and even as a juror. [¶] Also, during the time that he was seated over there, at one point when I was glancing about, I noticed that he had kept his sunglasses on, which is also inappropriate. The dress is inappropriate period. The sunglasses may have just been an oversight, that he hadn’t realized that he still had them on, or perhaps he’s sensitive to light and only removed them when he came up as part of the group out of respect during questioning. That also explains the reason that I asked him the question … when I was given the opportunity to question the prospective juror about whether he had any military service, because he appeared to be of an age that he could have even retired from the military and then taken on a second job working for an oil company. So I was trying to give him the benefit of the doubt that perhaps he was more comfortable in military clothing and for him that’s what he normally wore on his days off, but his answer was that he had … no prior military service, and so I thought that his wearing of those clothes … was completely inappropriate for court and, to me, reflected someone who did not have respect for the Court or [take] seriously the responsibilities in coming here dressed in that way.”
C. Analysis
1. Ms. P.
Assuming without deciding that disabled people constitute a cognizable group for purposes of Batson/Wheeler, we conclude defendant failed to present a prima facie case of discrimination against a member of that group. As the trial court explained, merely pointing out that the prosecution struck a member of the group did not establish a prima facie case of discrimination against that group. Tyler presented no evidence that the prosecutor struck most or all of the disabled jurors-indeed he presented no evidence that the prosecutor excused any other disabled prospective jurors. Similarly, Tyler presented no evidence that the prosecutor had used a disproportionate number of his peremptory challenges against disabled prospective jurors, or that Tyler himself was disabled. (See People v. Bonilla, supra, 41 Cal.4th at p. 342 [factors relevant to prima facie case].) The prosecutor, however, noted that Tyler’s counsel had also excused a disabled prospective juror. And although the questioning of Ms. P. was brief, it was similar to the questioning of many other prospective jurors. There was simply no evidence to suggest a discriminatory purpose in the prosecutor’s excusal of Ms. P. The prosecutor was permitted to exercise a peremptory challenge against Ms. P. for any permissible reason or for no reason at all. (People v. Huggins (2006) 38 Cal.4th 175, 227.) We discern no error here.
2. Mr. W.
In the case of Mr. W., who was unquestionably a member of a cognizable racial group, we again agree that defendant did not make a prima facie showing of discrimination. Mr. W. was the only African-American against whom the prosecutor exercised a peremptory challenge. An African-American prospective juror remained in the jury box and others remained in the venire. Furthermore, the record plainly established a valid, nondiscriminatory basis for excusing Mr. W.-his overly casual dress, which the prosecutor found disrespectful, and his strange wearing of sunglasses indoors. (People v. Reynoso (2003) 31 Cal.4th 903, 917 [peremptory challenge based on prosecutor’s personal observations and impressions is proper].) Again, we see no error.
3. Conclusion
We have reviewed the record to determine whether, under all the relevant circumstances, a reasonable inference of discrimination was raised in the case of either Mr. P. or Mr. W., and we find no evidence to support such an inference. We therefore conclude substantial evidence supported the trial court’s findings that Tyler failed to make prima facie showings of discrimination, and his Batson/Wheeler motions were properly denied.
II. Motion to Sever
Watson contends the trial court erred in denying her motion to sever her trial from Tyler’s. She asserted below that the serious nature of the charges against Tyler and the graphic nature of the evidence would prejudice her if the trials were not severed.
A. Law
“‘There is a statutory preference for joint trial of jointly charged defendants. (§ 1098.) “A ‘classic’ case for joint trial is presented when defendants are charged with common crimes involving common events and victims.”’ [Citation.] ‘An appellate court reviews a trial court’s ruling on a motion for separate trials for abuse of discretion.’ [Citation.] ‘Under Penal Code section 1098, a trial court must order a joint trial as the “rule” and may order separate trials only as an “exception.”’ [Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 725-726.) “[S]everance should generally be granted ‘“in the face of an incriminating confession [by a codefendant], prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.”’ [Citations.]” (People v. Pinholster (1992) 1 Cal.4th 865, 932, disapproved on another ground in Peoplev. Williams (2010) 49 Cal.4th 405, 458-459.)
“We review a trial court’s denial of a severance motion for abuse of discretion based upon the facts as they appeared when the court ruled on the motion. [Citations.] If we conclude the trial court abused its discretion, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result at a separate trial. [Citations.] ‘If the court’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder “‘resulted in “gross unfairness” amounting to a denial of due process.’”’ [Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 237.)
B. Analysis
In this instance, neither abuse of discretion nor gross unfairness appears. Darion’s death was an important common event, even though Tyler and Watson were charged with different offenses arising from this occurrence. In order to establish Watson as an accessory after the fact in violation of section 32, the prosecution was required to prove the following three elements: (1) Tyler committed a felony; (2) after Tyler committed the felony, Watson harbored, concealed, or aided Tyler; (3) when Watson did so, she intended that Tyler avoid or escape arrest, trial, conviction, or punishment. (CALCRIM No. 440.) Much of the trial evidence concerning the events leading up to and culminating in Darion’s death was relevant and admissible to prove that Tyler committed a felony, that Watson knew he did, and that she aided him with the intent that Tyler avoid arrest and conviction. Furthermore, there was no evidence of incriminating confessions, antagonistic defenses, the prospect of exonerating testimony, or the likelihood of confusion. The prosecutor clearly explained the sole charge against Watson:
“Count 3 deals with Mavis Watson only, and it only deals with what she did in Rosamond.… After she knows that this felony has happened, she knows that [Tyler’s] done it, and she goes back to try to aid him, the perpetrator, with intent to help to avoid his arrest, trial, conviction, or punishment, and that’s what she did here when she went back there to clean up, to take those items.”
Although Watson’s association with a murderer was prejudicial, it was necessary to prove the charge against her-assisting the murderer after the murder. Watson’s association with Tyler could not have been kept from the jury in a separate trial. For these reasons, we believe the trial court’s denial of the severance motion was a reasonable exercise of discretion and conclude that joint trial was not grossly unfair to Watson. (People v. Burney, supra, 47 Cal.4th at p. 237.)
In any event, Watson has not demonstrated a reasonable probability of a more favorable outcome if she had been tried separately. (People v. Burney, supra, 47 Cal.4th at p. 237.) While we agree the graphic nature of the evidence was unpleasant, the jurors in a separate trial would still have heard about the bloody crime scene that Watson cleaned up and the bloody weight belt and shoes that she disposed of. And, more importantly, proof of Watson’s guilt as an accessory after the fact was overwhelming. The evidence overwhelmingly established that Tyler murdered Darion, and that Watson thereafter aided Tyler by cleaning up Dionna’s house and removing incriminating evidence so Tyler would not be arrested and convicted. We conclude any error in denying the motion to sever was harmless.
III. Admission of Autopsy Photographs
Watson argues the admission of 16 photographs of Darion’s autopsy violated Evidence Code section 352 and Watson’s due process right to a fair trial. Watson claims the photographs were cumulative to each other and to the pathologist’s lengthy and detailed testimony. Watson also claims the photographs added nothing to prove she was an accessory after the fact, but merely inflamed the passion of the jurors against her and heightened their sympathy for Darion. Recognizing that her counsel failed to object to the photographs, Watson contends her counsel was ineffective. Tyler joins in Watson’s argument.
A. Law
“‘The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice ….’ (Evid. Code, § 352.) ‘The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.’ [Citation.] We review the trial court’s ruling under Evidence Code section 352 for abuse of discretion [citation], and a reviewing court will reverse a trial court’s exercise of discretion to admit crime scene or autopsy photographs only when ‘the probative value of the photographs clearly is outweighed by their prejudicial effect.’ [Citation.]” (People v. Watson (2008) 43 Cal.4th 652, 683-684.)
B. Analysis
We have viewed the autopsy photographs and conclude they were highly probative of the cause and manner of Darion’s death. The photographs revealed the extensive bleeding that occurred under Darion’s skin and dura, in his brain, and in his organs.
As to Tyler, admission of the autopsy photographs was not an abuse of discretion under Evidence Code section 352 and it did not render his trial unfair. “Although autopsy photographs of a murder victim are always unpleasant, the photographs in this case are not overly graphic and are relevant to the manner in which [Darion] was killed. [Citation.] Because the probative value of the autopsy photographs that were admitted into evidence … was not clearly outweighed by their prejudicial effect, the trial court did not abuse its discretion.” (People v. Carey (2007) 41 Cal.4th 109, 128; People v. Watson, supra, 43 Cal.4th 652, 684.) In addition, we do not find the number of photographs excessive or the photographs themselves cumulative. Instead, they reflected the pathologist’s systematic and scientific approach to the examination and “illustrated [the pathologist’s] testimony and made its import clearer to the jury. [Citations.]” (People v. Brasure (2008) 42 Cal.4th 1037, 1054.)
“[T]he prosecution [was] not required to seek stipulations or use ‘other “sanitized” method[s] of presenting its case.’ [Citations.]” (People v. Brasure, supra, 42 Cal.4th at p. 1054; People v. Pollock (2004) 32 Cal.4th 1153, 1170 [autopsy photographs of murder victim are always relevant at trial to prove how the crime occurred; prosecution need not prove these details solely through witness testimony]; People v. Gurule (2002) 28 Cal.4th 557, 624 [“[P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecutor’s theory of the case.”].) “‘As a rule, the prosecution in a criminal case involving charges of murder or other violent crimes is entitled to present evidence of the circumstances attending them even if it is grim.’ [Citation.]” (People v. Brasure, supra, at p. 1054.) Darion had been beaten extensively and the photographs documented this. “Some … were indeed gruesome, but not necessarily so. The challenged photographs simply showed what had been done to the victim; the revulsion they induce is attributable to the acts done, not to the photographs.” (Ibid.)
As to Watson, even if the photographs were not relevant to her participation after the fact, she cannot show prejudice due to the overwhelming evidence against her, specifically that she cleaned up the bloody crime scene and disposed of bloody evidence after the beating. This evidence alone suggested Tyler had committed a violent crime against Darion. Accordingly, Watson cannot show she was prejudiced by her counsel’s failure to object to the admission of the photographs. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 697; People v. Ledesma (1987) 43 Cal.3d 171, 217-218; People v.Hester (2000) 22 Cal.4th 290, 296-297 [to establish ineffective assistance of counsel, defendant must show counsel’s deficient performance was prejudicial; we can adjudicate ineffective assistance claim solely on issue of prejudice].)
IV. Section 4019 Credits
Watson asserts that she was entitled to additional conduct credits under the amended version of section 4019. This contention has been resolved against Watson.
Because Tyler was convicted of murder, he was not eligible for section 4019 credits. (§ 2933.2.)
Under section 3, it is presumed that a statute does not operate retroactively “‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application]. [Citation.]’ [Citation.]” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “‘clear and compelling implication’” from any other factor(s), that it intended the amendment operate retroactively. (Ibid.) Therefore, the amendment applies prospectively only.
We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.
We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)
(The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.)
V. Tyler’s Abstract of Judgment
Tyler contends, and the People concede, that the abstract of judgment fails to indicate his actual custody credits, despite the trial court’s oral pronouncement and minute order reflecting 1, 089 days of actual custody credits. The People also concede that the abstract fails to reflect the orally pronounced sentences on counts 1 and 2. At sentencing, the court imposed 25 years to life on count 2, and 15 years to life on count 1, stayed pursuant to section 654. We will remand the matter with directions to amend the abstract of judgment.
DISPOSITION
Tyler’s sentence is vacated and the matter is remanded to the Kern County Superior Court with directions to amend Tyler’s abstract of judgment to reflect the actual custody credits for time served and the sentences orally pronounced by the trial court, and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgments are affirmed in all other respects.
WE CONCUR: Cornell, Acting P.J., Gomes, J.