Filed 4/7/22 P. v. Taylor CA3

Refiled opinion (originally filed 4/5/22)

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Summary of the Appeal

A jury found defendant Stefawn Taylor guilty of three counts of robbery and related crimes on three separate days. The jury was unable to reach an agreement as to whether defendant used a knife in the robbery of his second victim, or whether he assaulted that victim with a knife. The jury found true an allegation that defendant had used a knife while committing the third robbery and related attempted robberies, but it was unable to reach a verdict as to the guilt of his alleged codefendant (hereafter J.L.) in that crime.

At a bifurcated trial, the jury found an allegation that defendant had two prior convictions for robbery within the meaning of Penal Code section 667, subdivisions (a) and (b) through (i) (strikes) true, which meant defendant was subject to a sentencing enhancement of 25 years to life for each of the current offenses under Penal Code section 667, subdivision (e)(2)(A)(ii). (Unspecified statutory section citations that follow are to the Penal Code.) The court sentenced defendant to a total determinate term of 33 years and an indeterminate term of 75 years to life.

On appeal, defendant raises three arguments. First, he argues that the trial court erred and violated his due process rights when it denied his request to sever the trials on the three separate incidents that led to his three robbery convictions. Second, he argues that limitations the trial court placed on the scope of his expert witness’s testimony denied him a fair trial. Third, defendant argues the trial court abused its discretion when it denied his motion to dismiss the prior strike allegations and enhancements before it sentenced him. We find no error and affirm the trial court’s judgment.

Facts and History of the Proceedings

June 16, 2019, Robbery of Kathleen F.

On June 16, 2019, Kathleen F. was returning to her house. As she approached her front door, someone came behind her and shoved her, knocking her into her metal screen door. He then grabbed her shoulders and threw her down to her cement porch, grabbed her purse, and ran. The person was behind her and she did not see him at that time, but she got up, walked to her front yard, and saw a person she believed was the perpetrator on a white bicycle two to three houses down. Kathleen F.’s husband was home and came outside.

On June 16, Stephanie S. was driving when she saw a man on bicycle traveling in the opposite direction. He seemed to be in a hurry, was looking over his shoulder, and carrying what looked like a purse. She stopped at a stop sign in front of Kathleen F.’s house, and Kathleen’s husband flagged her down and asked her to stop the man. Stephanie S. made a U-turn and followed the man. Stephanie caught up with the man at a big wall at the end of the street, and she honked her horn. The man threw the bicycle and purse over the wall, and then he climbed over the wall. She went back to Kathleen F.’s house where she spoke with the 9-1-1 operator.

Also on June 16, Chad T. was in his front yard when he saw a man riding a bicycle that had distinct white mag wheels, and he thought the man and bicycle looked like someone he had seen in a video posted online. The person had a bag in his hands.

Stephanie S. and Chad T. were shown photo lineups the day after the robbery. Defendant was not included in that lineup; instead it included another possible suspect. Stephanie took several minutes and said the most similar person in the lineup was the other possible suspect, but she rated herself as only five out of ten in terms of certainty. Chad selected someone that was not the other suspect with 99 percent certainty. Later, on August 27, 2019, Chad was shown a live lineup that included defendant. Chad selected the defendant and was confident defendant was the person he saw on June 16, 2019, as opposed to the person he had previously selected from the photo lineup. Stephanie was shown a photo lineup that included defendant on October 14, 2019. Stephanie also identified defendant.

In July 2019, an officer from the San Ramon Police Department performed a traffic stop of someone who is not a party to this action. Some items that matched the description of items Kathleen F. had in her purse when she was robbed were found in the vehicle, along with items labeled with defendant’s name and photograph, including a California ID card, a social security card, and a UPS ID badge.

At trial, both Stephanie S. and Chad T. identified defendant as the man they saw on the bicycle.

August 8, 2019, Robbery of Ryan S.

Ryan S. testified at trial that, on August 8, 2019, he was living with his girlfriend. He arrived home and noticed that the gates they normally used for the dogs were up against the door of the master bedroom, blocking it, and the dogs were in the kitchen. He heard shuffling sounds coming from the master bedroom, and went towards it. Ryan saw defendant, whom he identified in court, coming around a corner, holding his girlfriend’s purse and wearing Ryan’s backpack. He had never seen defendant before. He went after defendant, who fell backwards. Defendant reached for his pockets and started talking about a gun, and Ryan froze. Defendant said he had Ryan’s things, and when Ryan protested, defendant insisted he was taking the items. Defendant said to Ryan, “I have your Derringer, bitch.” A Derringer is a small, .22 caliber pistol. This matched the description of a gun Ryan kept in his dresser; so, Ryan knew defendant had his gun.

Ryan S. testified that when defendant got up, he had a knife and came towards Ryan with a swipe towards Ryan’s throat. Defendant then kept trying to back Ryan into the hallway, using the knife to swing at Ryan. Defendant stabbed at the wall above a hallway light switch. Ryan continued to backup. They were heading down the hallway towards the front door. Defendant poked Ryan in the chest, in the area of his heart, and asked if Ryan could feel it. This resulted in three red spots that later became bruises.

Ryan S. moved towards the front door and unlocked it. His girlfriend called, and defendant told Ryan he would kill him if he answered the phone; so, Ryan hung up the phone. When she called again, defendant started counting down from 10, and told Ryan he would kill him if he answered. At the front door, defendant threatened to cut himself and made a slashing motion towards his own left arm. Defendant went out the screen door.

Defendant turned around and had Ryan S. close the door. When Ryan tried to follow the defendant, defendant stabbed the door. Defendant would then turn back around, and if Ryan tried to follow him defendant would stab the door again. Defendant wound up stabbing the screen door four times.

Ryan S. got outside. Ryan had noticed a neighbor was home when he got home, and he started yelling someone robbed his house to try to get her attention.

Defendant began walking towards a greenbelt trail. Ryan S.’s neighbor, B.C., came out and started filming the altercation, and defendant started acting differently. On camera, defendant talked to Ryan about Ryan owing defendant money, and acting like Ryan and defendant knew each other. In the video, you can hear defendant mention Ryan’s wife, but Ryan is not married and his girlfriend did not know defendant. Ryan had never met defendant. Ryan continued to follow defendant, and defendant asked if Ryan really wanted to follow him away from the camera. Ryan backed off, because he was afraid he was going to get stabbed if he got out of the viewpoint of the camera. Ryan testified that defendant then ran off on the greenbelt trail. Ryan called 9-1-1.

B.C. testified that as Ryan S. walked back to his house, the other man casually walked down a trail that was on the side of the house. Then, a couple courts down, the man got on a bicycle and rode off. The bicycle looked like a mountain bicycle. She thought it was black, but was not sure. B.C. also testified that the man had something in his hands. He was swinging the hand with the object in it at Ryan. The motion was consistent with how someone would swing a knife.

Ryan S. later determined that defendant had taken some of his and his girlfriend’s possessions.

Detectives later showed Ryan S. a photo lineup. He recognized defendant in the lineup. A print found at Ryan’s house matched defendant’s right index and right middle finger.

August 13, 2019, Robbery of Andrew L. and the Attempted Robbery of His Friends

On the night of August 12, 2019, to the early hours of August 13, 2019, Andrew L., Gabriel S., Jayson T., and I.B. were hanging out at I.B.’s house. They were drinking alcohol. Andrew, who was 18 at the time of trial, had smoked some marijuana that night. Sometime after midnight, they left to get food from Taco Bell. At some point as the four were walking, defendant and his companion, J.L., passed them on bicycles. Defendant and J.L. circled back and started a conversation, which did not start in a particularly aggressive tone.

Andrew L. testified that someone then hit him in the face. Though Andrew did not know who punched him, I.B. testified the black man, whom he identified as defendant, got off his bicycle and swung at Andrew. J.L. is white. Andrew and I.B. were both knocked to the ground. I.B. said defendant pushed him into a ditch. Andrew and I.B. wound up with scrapes on their legs. Defendant pulled out a knife, pointed it at Andrew and demanded Andrew give him his property. Jayson T. testified that defendant demanded his and Gabriel S.’s property when he had the knife out, and I.B. testified defendant told “us to give him our stuff.” I.B. ran in one direction, and Jayson and Gabriel ran in another.

According to I.B., Jayson T., and Gabriel S., J.L. pulled out a gun—or something chrome at least—and the gun went off at some point. When he testified in his own defense, J.L. testified he pulled the gun out for protection when he saw defendant scuffling in a ditch with two of the victims and thought maybe the teenagers were attacking him and defendant. He said he shot the gun off by accident.

One of the men, who I.B. testified was defendant, took Andrew L.’s backpack and then defendant and J.L. got back on their bicycles and rode away. When Andrew got his backpack back, a marijuana pen was missing.

Timothy G. was driving home from work and saw two groups at the side of the road, where one person was pointing what looked like a gun at the other group. He made a U-turn and saw some of the people running. He stopped some of the runners and they said they had just been robbed and asked him to call 9-1-1. He went in the direction the group, said the robbers had ridden on their bicycles, and he called 9-1-1. About a half mile later, he passed two people on bicycles. He saw the two men on the bicycles go behind a dumpster near a Dutch Bros Coffee shop and roll their bicycles into the bushes.

A sheriff’s deputy who arrived at the scene saw J.L. and defendant and ordered them to stop. J.L. stopped, but defendant kept walking. Another officer arrived and caught up with defendant and was able to detain him. Defendant told the officer his name was John Williams. A knife and a backpack were located in the bushes, and two backpacks were found behind the dumpster along with two bicycles. One of the backpacks contained identification belonging to Andrew L.

Charges and Verdicts

The People filed an amended consolidated information on January 23, 2020. Count 1 accused defendant of the second degree robbery of Kathleen F. on June 16, 2019, under section 211. Count 1 included an enhancement allegation under section 667.9, subdivision (b), that Kathleen was over the age of 65 (a senior), that Kathleen’s senior status was known or reasonably should have been known to defendant, and that defendant had previously been convicted of section 211 robbery in October 2014. The jury found defendant guilty on this count and found all enhancements to be true.

Counts 2, 3, and 4 all concerned the incident that occurred on August 8, 2019, at Ryan S.’s home. Count 2 alleged under section 211 defendant committed first degree robbery in a residence. Count 3 alleged under sections 459 and 462, subdivision (a) defendant committed first degree residential burglary. Both counts 2 and 3 included an enhancement allegation for the use of a knife, within the meaning of section 12022, subdivision (b)(1). Count 3 also included an enhancement alleging a person other than an accomplice was in the residence at the time of the burglary. Count 4 alleged defendant deliberately and willfully assaulted Ryan with a knife, which is a deadly weapon, in violation of section 245, subdivision (a)(1). The jury found defendant guilty on counts 2 and 3, and it found true that during the burglary, a person other than an accomplice was present. The jury was unable to decide whether defendant used a knife in committing the crimes alleged in counts 2 and 3, or if he was guilty of assault with a knife, as alleged in count 4.

Counts 5, 6, 7, 8, and 10, stemmed from the altercation between defendant and J.L. on one side and alleged victims Andrew L., I.B., Jayson T., and Gabriel S. on the other. Counts 5, 6, 7, and 8 respectively accused defendant and J.L. of section 211 second degree robbery against Andrew, and second degree attempted robbery against I.B., Jayson, and Gabriel. Counts 5 through 8 included enhancement allegations that J.L. personally discharged a firearm under section 12022.53, subdivision (c); J.L. personally used a firearm under sections 12022.53, subdivision (b) and 12022.5, subdivision (a); that defendant used a knife, a deadly and dangerous weapon; and that defendant as a principal in the offense was armed with a firearm. Count 10 alleged that defendant gave a false identification to a police officer when he was detained following the altercation. The jury found defendant guilty on all five counts.

On counts 5, 6, 7, and 8 the jury found true that defendant had used a knife, a dangerous weapon, while committing the crimes. The jury found not true that defendant had used a handgun when he committed counts 5, 6, 7, and 8. The jury made no findings with respect to J.L.’s involvement in the robbery and attempted robberies or use of a gun as alleged in counts 5-10.

The information also alleged that on two prior occasions—October 30, 2014, and again on October 28, 2015—defendant was convicted of robbery under section 211, a serious felony within the meaning of section 667, subdivision (a). The information alleged that these prior convictions were serious felonies that qualified as strikes under California’s three-strikes scheme. (See §§ 667, subds. (b)-(i) & 1170.12.) The jury found true that defendant had two prior convictions for robbery within the meaning of section 667, subdivisions (a) and (b) through (i).

The trial court declared mistrials on the counts and enhancements upon which the jury was unable to reach a verdict or finding as to their truth.

Discussion

I

The Trial Court Did Not Abuse Its Discretion When It Denied the Motion to Sever

A. Additional Background

In ruling on the motion to sever, the trial court considered motions and trial briefs submitted by the parties; the 9-1-1 recordings with the Kathleen F. and her husband, Stephanie S., and Ryan S.; and preliminary hearing transcripts. Because we evaluate a trial court’s denial of a motion to sever based on the record before it at the time it made its ruling, in addition to describing the arguments of the parties and the trial court’s ruling on the motion, we outline the substance of the testimony at the preliminary hearings and the 9-1-1 calls here. (See People v. Vargas (2020) 9 Cal.5th 793, 817 [“We review a trial court’s denial of a severance motion for abuse of discretion based on the record before it at the time of that denial”].)

1. Preliminary Hearing Testimony Regarding June 16, 2019

Kathleen F. testified. She stated she was born in 1934, making her approximately 85 at the time of the hearing, and 84 or 85 at the time of the June 16, 2019, robbery. She stated that on the day of the alleged robbery, she returned home from running errands and parked in her driveway. When she exited her car, she was carrying a plant and had a purse over her shoulder. As she went to open the metal screen door to her house, someone hit her against the screen door, pushed her to the ground, grabbed her purse and ran. She did not see the person who attacked her right away, but saw him on what she believes was a white bicycle a few houses down when she got up and went to the front of the house to look, and then she only saw the back of him. She could not tell much about the appearance of her attacker, but he appeared to be male with dark hair, and she thought maybe he had a scarf on his head.

When Kathleen F. was out front, there was a woman, named Stephanie S., in a pickup truck in the intersection in front of her house. Kathleen’s husband asked Stephanie to follow the man on the bicycle, and she turned around to follow the bicycle. Stephanie came back later and reported that when the man on the bicycle had reached a dead end in the street, he threw his bicycle over a retaining wall then went over himself. Kathleen stated she kept a checkbook, credit cards, a Medicare card, her driver’s licensed and various other items in her purse.

Officer Tony Parham of the Sacramento Police Department also testified at the preliminary hearing regarding the June 16, 2019, incident. He went to the location of the robbery and spoke with Kathleen F. He also spoke with Stephanie S. Stephanie told him she was driving when she saw a man on a bicycle moving very fast in the opposite direction, and she thought it was weird he was traveling so fast. She described the man as a black adult of about 25 or 29 years old, of medium build—maybe 180 pounds, and with dreadlocks. She saw the man on the bicycle about two houses west of Kathleen’s residence. She said two elderly people were standing in front of their house and waving their arms, and they said someone had just robbed the woman; so, she turned around and tried to catch up with the man on the bicycle. She caught up with the man and was maybe 10-12 feet away from him when he was getting off the bicycle. He threw the bicycle over a retaining wall, then jumped over the wall himself. Stephanie told Parham that before the man on the bicycle went over the wall, she saw he was carrying a purse in his left hand. After the man with the bicycle went over the wall, Stephanie turned around, and she saw Chad T. outside doing yard work.

Officer Parham also spoke with Chad T. He said he saw Stephanie S. chasing after someone riding a bicycle. He said he thought the man on the bicycle may have been carrying something in his left arm. Chad believed he had seen the man on the bicycle before. He believed the man had been identified on Nextdoor.com as a possible package thief.

On cross-examination, Parham admitted that the next day he received information from another peace officer who believed, based on descriptions, that someone other than defendant was a possible suspect in the robbery. He created a photographic lineup with that suspect in the number 3 position and showed it to Stephanie S. and Chad T. Stephanie selected that suspect from that lineup with 50 percent certainty. Chad at first wavered between the persons in spots 4 and 5, then pointed to the initial suspect, and ultimately picked the photo in position 4 from that lineup, and he said he was 99 percent sure he had selected the man he saw on the bicycle.

Detective Susan Curtis of the Sacramento Police Department testified about a live lineup of suspects, including defendant, that she performed with Chad T. During that lineup, Chad identified defendant. When he filled out a form regarding his level of certainty in that identification, Chad indicated, “I am sure.” She also performed a photo lineup, which included a photo of defendant, with Stephanie S., and Stephanie selected defendant.

2. June 16, 2019, 9-1-1 Call with Kathleen F. and Stephanie S.

In her 911 call, Kathleen F. told the operator that someone knocked her down, grabbed her purse, and got back on his bicycle. She said, “t just hurts” but that she was “okay” and did not need an ambulance. Kathleen said the assailant appeared to be in his early 20’s.

3. [i]Preliminary Hearing Regarding August 8, 2019

Detective Paul Labane from the Sacramento Sheriff’s Department testified regarding the August 8, 2019, incident. He met with Ryan S. when investigating the crime. When he came home on August 8, 2019, Ryan encountered someone in his residence. When shown a photo lineup, Ryan identified defendant as the person he encountered in his home. Ryan said that defendant was holding a black leather bag, and a purse that belonged to Ryan’s girlfriend, and that one bag held Ryan’s Play Station. Ryan pleaded with defendant to leave his property, and defendant said he was homeless, needed money, and had possession of Ryan’s gun. Ryan said he did not know defendant. Ryan then tried to tackle defendant.

4. August 8, 2019, 911 Call with Ryan S.

During his 911 call, Ryan S. reported he had just been robbed by a black man. He said he came home and found the man “rustling” in his master bedroom. He said the man had pulled a knife on him and poked him in the chest with it. He described the man as having dreadlocks, being about 6’1” and 175 pounds, and maybe 35 years old. Ryan described how the suspect had stabbed through his screen door and made a motion like he would slash Ryan’s throat. Ryan said he was not bleeding, but the man had poked him in the chest to make him back up.

5. Preliminary Hearing Testimony Regarding August 13, 2019

Deputy Ross Nishio of the Sacramento Sheriff’s Department testified regarding the August 13, 2019, incident. Nishio spoke with Andrew L., a reported robbery victim. Andrew reported that he and three of his friends had been going to get something to eat near Madison Avenue and Dewey. They were approached by one black man and one white man who were travelling on bicycles and who they did not know. At first, the interaction with the two men was friendly. But later the white man pulled out a pistol and pointed it at Andrew, and the black man pointed a knife at Andrew. The men demanded Andrew’s cash and property, the white man shot the pistol in the air, and Andrew fell to the ground when someone punched him in the face. Andrew gave the men his backpack. The men then rode off on their bicycles. When Nishio interviewed one of Andrew’s friends, I.B., he gave a similar story. He too had been pushed down by someone and fell into a ditch. Nishio observed scrapes on Andrew’s and I.B.’s legs, which they said were caused during the encounter.

Deputy Cayman Gleason of the Sacramento County Sheriff’s department also testified regarding the August 13, 2019, incident. He spoke with Gabriel S., one of Andrew L.’s friends who was with him during the incident. He was present when Gabriel was shown two suspects—defendant and J.L.—that other officers had detained. Gabriel positively identified defendant and J.L. as involved in the incident. Deputy Gleason also spoke with Deputy Miller about his role in the investigation the night of the incident. Deputy Miller said he found a person who met the description of a potential suspect. When Deputy Miller spoke with that potential suspect, the potential suspect said his name was John Williams, but when Gleason showed Miller a photo of defendant, Miller said defendant was the person he spoke with.

6. Severance Motion, Hearing, and Ruling

Defendant filed a motion whereby he asked the trial court to sever trial of the counts alleged against him by date, i.e., to “receive three (3) separate trials corresponding to the dates of the three incidents.” The People did not file an opposition to the motion, but presented an oral argument.

At the hearing on the severance motion, defense counsel argued that in Kathleen F.’s case there was an issue regarding “[t]he identification of the person who mugged [Kathleen F.].” “n that case the defense is to challenge the reliability of the identification and to challenge that the person they are describing was actually Mr. Taylor.” He stated that his strategy of challenging the identification of the perpetrator with respect to the alleged robbery of Kathleen was, “inconsistent with the defense in the other two cases.” Defense counsel then stated that with respect to the alleged incident with Ryan S., he intended to raise a defense that defendant and Ryan, “know each other.” As to the third incident, defense argued that, “this wasn’t a robbery.”

B. [i]Legal Standards Applicable to Motions to Sever

“An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . .” (§ 954.) In these cases, “evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (§ 954.1.)

“Joinder is ordinarily favored because it avoids the increased expenditures of funds and judicial resources that may result from separate trials. (See Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) Joinder, therefore, ‘is the course of action preferred by the law.’ (Ibid.)” (People v. Simon (2016) 1 Cal.5th 98, 122 (Simon).) Nonetheless, “the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” (§ 954; see Simon, supra, 1 Cal.5th at p. 122.)

Appellate courts’ review of motions to sever joined claims proceed, “in two steps. First, we examine whether, in light of the information available at the time” the trial court denied the motion, “the trial court abused its discretion in denying the severance motion prior to the guilt phase. (People v. Mendoza (2000) 24 Cal.4th 130, 161 (Mendoza).) Where . . . the statutory requirements for joinder are met, a defendant must make a ‘clear showing of prejudice’ to establish that the trial court abused its discretion in denying the motion. (Mendoza, at p. 160.) A defendant seeking severance of properly joined charged offenses must make a stronger showing of potential prejudice than would be necessary to exclude evidence of other crimes in a severed trial. (People v. Soper (2009) 45 Cal.4th 759, 774.)” (Simon, supra, 1 Cal.5th at pp. 122-123, fn. omitted.)

“Second, even if the trial court’s ruling was proper as a matter of state law, we will reverse the judgment if the defendant shows that joinder of the charges actually resulted in ‘ “ ‘gross unfairness’ ” ’ amounting to a denial of due process during the guilt phase. (Mendoza, supra, 24 Cal.4th at p. 162.)” (Simon, supra, 1 Cal.5th at p. 123.) “In determining whether joinder resulted in gross unfairness, . . . a judgment will be reversed on this ground only if it is reasonably probable that the jury was influenced by the joinder in its verdict of guilt. (People v. Merriman[ (2014)] 60 Cal.4th [1,] 49.)” (Simon, supra, 1 Cal.5th at pp. 129-130.)

C. The Trial Court Did Not Abuse Its Discretion When It Denied the Motion to Sever Charges

In determining whether a trial court abused its discretion in denying a motion to sever charges, “[t]he factors we consider are as follows: (1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether any of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case. (People v. Elliott (2012) 53 Cal.4th 535, 551.)” (Simon, supra, 1 Cal.5th at p. 123.) We “consider the cross-admissibility of the evidence in hypothetical separate trials” first, because “f the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.” ([i]People v. Soper (2009) 45 Cal.4th 759, 774-775 (Soper).)

“If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider” the remaining three factors, which inform our determination as to “ ‘whether the benefits of joinder were sufficiently substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ ([People v. ]Bean [(1988)] 46 Cal.3d 919, 938; [citations].)” (Soper, supra, 45 Cal.4th at p. 775.)

Defendant argues the trial court abused its discretion because the evidence relating to the charges stemming from the three incidents was not cross-admissible, the evidence relating to the robbery of Kathleen F. was more likely to inflame the jury against him, and stronger evidence of a crime against Kathleen was joined with weaker evidence of crimes in the other two cases.

1. The Evidence Was Cross-Admissible

In assessing the cross-admissibility factor, “ ‘two-way’ cross-admissibility is not required.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1129, overruled in part on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421; see also People v. Merriman, supra, 60 Cal.4th at p. 38; People v. Cunningham (2001) 25 Cal.4th 926, 985.) “In other words, it may be sufficient, for example, if evidence underlying charge ‘B’ is admissible in the trial of charge ‘A’—even though evidence underlying charge ‘A’ may not be similarly admissible in the trial of charge ‘B.’ ” (Alcala, supra, 43 Cal.4th at p. 1221.) Here we find that evidence from the robbery of Kathleen F. on June 16, 2019, was admissible to prove defendant’s intent to commit robbery on August 8, 2019, and August 13, 2019.

As our Supreme Court did in Soper, supra, 45 Cal.4th at page 776, and Alcala, supra, 43 Cal.4th at page 1222, we look to cases analyzing the admissibility of evidence of uncharged crimes for guidance as to whether evidence in support of joined counts would be cross-admissible (see also, e.g., People v. Ewoldt (1994) 7 Cal.4th 380 [discussed in both Soper and Alcala]). Evidence Code section 1101 governs the admissibility of uncharged crimes. Evidence Code section 1101, subdivision (a), generally prohibits the admission of “evidence of a person’s character or a trait of his or her character,” including in the form of “specific instances of his or her conduct,” when that evidence is “offered to prove his or her conduct on a specified occasion.” “The provision ‘expressly prohibits the use of an uncharged offense if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense.’ (People v. Thompson (1980) 27 Cal.3d 303, 316.)” (People v. Chhoun (2021) 11 Cal.5th 1, 25 (Chhoun), italics added.)

However, Evidence Code section 1101, subdivision (b), clarifies that this limitation does not prohibit, “the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Italics added, see also Chhoun, supra, 11 Cal.5th at p. 25 [“ ‘If an uncharged act is relevant to prove some fact other than propensity,’ such as the perpetrator’s intent or identity, or the existence of a common plan, ‘the evidence is admissible, subject to a limiting instruction upon request.’ (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406.)”].)

“[T]here exists a continuum concerning the degree of similarity required for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought: ‘The least degree of similarity . . . is required in order to prove intent. [Citation.] . . . In order to be admissible [for that purpose], the uncharged misconduct must be sufficiently similar to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” [Citation.]’ ([People v. Ewoldt, supra, 7 Cal.4th 380,] 402, italics added.) By contrast, a higher degree of similarity is required to prove common design or plan, and the highest degree of similarity is required to prove identity.” (Soper, supra, 45 Cal.4th at p. 776.)

“[A] fact finder properly may consider admissible ‘other crimes’ evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes ([Alcala, supra, 43 Cal.4th at p. ]1224 & fn. 14, citing [People v.] Carpenter [(1997)] 15 Cal.4th 312, 380–383), and further (2) the threshold standard articulated in Ewoldt can be satisfied—that is, ‘the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored’ the requisite intent. (Alcala, supra, 43 Cal.4th at p. 1224, paraphrasing Ewoldt, supra, 7 Cal.4th 380, 402.) There is no requirement that it must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.” (Soper, supra, 45 Cal.4th at p. 778.) Applying this standard, the evidence here was cross-admissible as evidence of intent.

First, based on the record at the time of the severance motion hearing, there was sufficient evidence to sustain a finding that defendant committed all three crimes. For the June 16, 2019, there was testimony from the victim that someone had shoved her to the ground and stolen her purse; eyewitnesses saw someone quickly cycling away from the scene while carrying something, then throwing his bicycle over and scaling a wall; both of those eyewitnesses identified defendant as the person they saw when defendant was included in a lineup; and the People advised the court that some of the items stollen from Kathleen F. had been found with defendant’s identification.

For the August 8, 2019, crime, Ryan S. had informed an investigator that he arrived home to find defendant, who Ryan did not know, holding his and his girlfriend’s possessions in the master bedroom. During the 9-1-1 call Ryan made, he said he had been robbed and the robber had poked Ryan with a knife and threatened to slash his throat. For the August 13, 2019, crime, officers testified at the preliminary hearing regarding their interviews with three of the victims. Two of the victims reported being physically hit or shoved so that they fell to the ground, and Andrew L. reported a black assailant pointed a knife at him and demanding his property, leading Andrew to give the man his backpack before the assailant took off on a bicycle. When shown defendant, one of the victims of the August 13, 2019, incident identified defendant as the perpetrator.

Second, there were factual similarities to show that in each of the scenarios defendant harbored the same intent—i.e., to rob the victims. In each incident there was evidence that defendant had used violence to effectuate securing and absconding with the victim’s property: On June 16, 2019, he shoved an elderly victim into a metal door and pushed her to the ground before grabbing her purse. On August 8, 2019, he waved a knife at the victim’s throat and poked the victim with the knife in order to rob the victim. On August 13, 2019, the evidence was that two victims were knocked to the ground, defendant brandished a knife, and J.L. fired a gun, before defendant secured Andrew L.’s backpack and left on his bicycle.

Our Supreme Court has “ ‘ “ ‘long recognized “that if a person acts similarly in similar situations, he probably harbors the same intent in each instance” . . . . The inference to be drawn is . . . that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.’ ” ’ (People v. Roldan (2005) 35 Cal.4th 646, 706.)” (Chhoun, supra, 11 Cal.5th at p. 27.) Here, evidence from each of the alleged incidents as known at the time of the hearing on the severance motion suggested that defendant intended to rob the victims using force and threats of force, and there was enough overlap in the forms of force used—pushing someone to the ground and/or brandishing a knife—to support a common means of completing the thefts.

Here, at a minimum, the evidence was cross-admissible to show intent. Additionally, contrary to defendant’s arguments, there was fairly strong evidence that defendant was, in fact, the perpetrator of the June 16, 2019, robbery—when included in a lineup, two eyewitnesses selected him and his identification was found with items stolen from Kathleen F. Any prejudice on the issue of his identity would not have outweighed the probative value of cross-admission of evidence to prove intent. (Soper, supra, 45 Cal.4th at p. 779, fn. 16 [“[W]e reject the proposition . . . that whenever identity remains at issue—and in the absence of an affirmative finding of cross-admissibility of the evidence to prove identity—evidence underlying uncharged offenses that otherwise would be admissible to prove intent always will be inadmissible under Evidence Code section 352 for that purpose. Rather, the admissibility of such evidence would be a matter subject to the trial court’s discretion under Evidence Code section 352, after balancing the probative value of the evidence against the potential for prejudice” original italics].)

2. Defendant Has Not Shown Prejudice Arising from Denial of the Motion to Sever.

“Our [Supreme Court’s] decisions . . . make clear that even the complete absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to order a requested severance. [It has] repeatedly . . . found a trial court’s denial of a motion to sever charged offenses to be a proper exercise of discretion even when the evidence underlying the charges would not have been cross-admissible in separate trials.” (Alcala, supra, 43 Cal.4th at p. 1221, original italics.) If cross-admissibility is not found, we then consider if the other three factors “combined with our earlier determination of absence of cross-admissibility . . . might establish an abuse of the trial court's discretion.” (Soper, supra, 45 Cal.4th at p. 775.) “We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.” (Ibid.)

Defendant makes two prejudice arguments and we disagree with both.

First, he argues that the trial court abused its discretion in finding that there was nothing so egregious about the Kathleen F. crime that it would inflame the jury against defendant and cause them to be prejudiced against him in considering the other events. As the trial court observed, while Kathleen was elderly, she did not appear to be physically harmed in the June 16, 2019, incident, and no weapon was observed in the commission of the crime.

In contrast, in the Ryan S. case, based on the evidence in the record at the time of the hearing on the motion to sever, defendant was inside of Ryan’s home and defendant threatened Ryan with a knife, going so far as to poke him in the chest with it. Then, in the August 13, 2019, incident, there was evidence that defendant punched Andrew L. with a force that made him fall and then pushed another victim into a ditch, and that defendant brandished a knife while his companion fired a gun. Like the June 16, 2019, incident, none of the evidence from the August 8, 2019, or August 13, 2019, incidents suggested any of the victims were seriously injured—in fact, there is no evidence that any of the victims required medical attention as a result of their encounters with the defendant. On this basis, the trial court acted well within its discretion when it found there were no, “great differences between these three incidents that are likely to inflame the jury such that it would cause jurors to convict in one case because they receive some emotional visceral response and feeling as to the facts in another case.”

Second, defendant argues that he was prejudiced by the joinder of a stronger case to a weaker case. Specifically, defendant argues that, “[w]ithout the evidence that [defendant] had committed the assault and robbery on [Kathleen F.], it is reasonably possible that at least one juror would have had a reasonable doubt that [defendant] had robbed Ryan S., or the four teenagers.”

On the contrary, at the time of the hearing on the severance motion, there appeared to be equally strong evidence that defendant had, in fact, robbed the victims to secure their property in all three incidents. Officers had identified and spoken with the victims about the crimes and defendant’s role in them. Based on the evidence before the court at the time of the hearing on the motion for severance, defendant failed to meet his burden to demonstrate prejudice and the court did not abuse its discretion in finding there was none.

D. The Joinder of the Counts Did Not Violate Defendant’s Due Process Rights

Defendant argues that even if the trial court did not abuse its discretion in denying the severance motion, the joinder actually resulted in such gross unfairness that he was denied his constitutional right to due process under the law.

“In determining whether joinder resulted in gross unfairness, we have observed that a judgment will be reversed on this ground only if it is reasonably probable that the jury was influenced by the joinder in its verdict of guilt.” (Simon, supra, 1 Cal.5th at pp. 129-130; see also People v. Vargas, supra, 9 Cal.5th at p. 819.)

Defendant makes three arguments to support his position that the joinder resulted in gross unfairness. First, he argues that the fact that (1) the jury sought readbacks of evidence in the Ryan S. case, and (2) it could not reach a result as to the knife enhancements or knife assault count, demonstrate the evidence in support of the counts stemming from the August 8, 2019, incident was “extremely weak.” We disagree, if anything, this demonstrates that the jury did not allow the evidence regarding the use of a knife during the August 13, 2019, incident—where the jury did find defendant used a knife—to lead it to conclude he must have used one during the August 8, 2019, incident too. That is, this shows the jury did not allow evidence related to one crime to improperly spill over into its deliberations of another crime.

Second, defendant argues that evidence for the counts regarding the August 13, 2019, incident was also weak, and, because the jury hung on all four counts against his codefendant with respect to the August 13, 2019, incident, the jury was probably influenced by the evidence of the other crimes when it returned guilty verdicts against him on the counts stemming from that incident.

But, to begin with, the evidence against defendant was not weak on this count. Though at trial Andrew L.’s memory regarding who punched him, who pulled a knife on him, and who took his backpack was hazy, he admitted on the stand that he had told an officer who reported on the incident that it was the black man who pulled the knife. Additionally, I.B. testified that “Taylor” swung at Andrew and pushed him down, “Taylor” pulled out a knife, and, and then defendant took Andrew’s backpack. The other two victims from the incident testified that the black man had a knife, and either that the black man was trying to get Andrew’s backpack or that the assailants had Andrew’s backpack. When testifying in his own defense, J.L. stated that after the incident he noticed that defendant had an extra backpack. In contrast, the evidence regarding J.L.’s use of a gun was less strong and more inconsistent: Andrew did not recall anyone using a gun. I.B. said J.L. fired it in the air. Jayson T. said he did not see J.L. with a weapon, but saw a reflection of chrome and heard a gunshot. Gabriel S. testified the white man pulled out a gun and told the victims to give them everything they had, and that he later heard a gunshot. In testifying in own his defense, J.L. said he saw defendant in a scuffle with two of the alleged victims, and assumed defendant was getting attacked, though he did not know who had started the scuffle. He said he thought the other two guys might be coming after him, and he pulled out his gun, which he accidentally discharged when he went to put it away. Thus, there was strong evidence that defendant both pulled a knife and wound up in possession of Andrew’s backpack, but the role J.L. played in securing that backpack was less certain based on the evidence admitted regarding the August 13, 2019, incident alone.

Third, defendant argues that the prosecutor urged the jury to consider the three sets of evidence in concert in closing. Specifically, defendant points to a portion where the prosecutor was arguing that defendant was the perpetrator of the June 16, 2019, robbery. In that segment of the closing, the prosecutor noted that the fact that the perpetrator in the June 16, 2019, case appeared to be riding the same bicycle as the perpetrator in counts 4 through 6 “probably [was] not by itself sufficient evidence” of his identity alone. But, the prosecutor argued, the jury could “put[] together all of the evidence,” and that there were “so many” pieces for which individually there might be “an innocent explanation,” but which collectively showed the jury “exactly what [it] need[ed] in this case.”

In the parts of his argument in which he identifies the other pieces of evidence that go towards the issue of the identity of the June 16, 2019, assailant, the prosecutor points to finding defendant’s property with Kathleen F.’s, and the identifications by Chad T. and Stephanie S. Defendant’s suggestion that this argument led the jury to use evidence of one of the other incidents in a manner that was “grossly unfair” is unpersuasive. First, the court instructed the jury that it must “decide each charge for each defendant separately.” We presume that a jury follows the instructions given to it by the trial court. (People v. Anzalone (2013) 56 Cal.4th 545, 557.) As noted above, the jury’s findings regarding the use of the knife in the August 8, 2019, incident bolster this presumption. Second, the prosecutor’s argument actually encourages the jury to look primarily at the evidence specific to the June 16, 2019, incident. While the Prosecutor may point to evidence regarding the bicycle in the August 13, 2019, incident, he is hardly using it as the solid ground upon which to rest his case. This did not result in gross unfairness. It does not seem reasonably probable that but for the joinder of these counts the jury would have found defendant was not the robber in the June 16, 2019, incident when faced with the other evidence the prosecutor identified in closing.

II

The Trial Court Did Not Abuse Its Discretion When It Limited the Testimony of Defendant’s Expert Witness

A. Additional Background

As part of his defense, defendant called Dr. Geoffrey Loftus, who was qualified as an expert in human perception, cognition, and memory.

Before Dr. Loftus testified, the People brought a motion to exclude certain proposed portions of his testimony and requested an evidentiary hearing (the Evidence Code section 402 hearing) to establish if there was a sufficient basis for some of the opinions the defense sought to have Dr. Loftus provide the jury.

Specifically, in the motion, the People objected to possible testimony by Dr. Loftus that misidentification by eyewitnesses is the leading cause of wrongful convictions in criminal cases (Wrongful Conviction Issue). And, the People sought an Evidence Code section 402 hearing to establish whether Dr. Loftus had sufficient foundation to support his opinion in two areas: (1) that if witnesses receive confirmation that their identification of a suspect was correct, this will change the witness’s memory of the event to reflect more favorable conditions surrounding the identification such as how clearly and for how long the witness saw the individual (Confirmation Bias Issue); and (2) that his review of data from a certain study performed in Illinois regarding lineups has caused him to conclude that certain procedures can result in a “ ‘six-fold increase in false identifications’ ” (Lineup Procedure Issue).

In the opposition to the People’s motion, defendant argued Dr. Loftus’s testimony on the Wrongful Conviction Issue was based on statistics gathered from Innocence Project web sites and stated the Innocence Project “is the most well-known and respected authority in this country regarding exonerations in criminal cases.” Defendant attached to his opposition an article authored by Dr. Gary L. Wells et al., titled, “Distorted Retrospective Eyewitness Reports as Functions of Feedback and Delay” (Wells Article), and an article Dr. Loftus had co-authored titled, “What Can We Learn About Real-Life Lineups from Experiments that use Real-Life Lineups?” (Loftus Article), which the defense claimed provided the foundation for Dr. Loftus’s opinions on the Confirmation Bias Issue and the Lineup Procedure Issue, respectively.

The defendant also stressed that Dr. Loftus would not be offering an opinion as to the accuracy of any witness’s testimony in this case. At the Evidence Code section 402 hearing, defense counsel told the court that the argument he wanted to make at trial was that the trial witnesses would receive identification confirmation when they saw defendant in court.

1. Evidence Code Section 402 Hearing Testimony and Ruling on the Wrongful Conviction Issue

With respect to the Wrongful Conviction Issue, at the Evidence Code section 402 hearing, Dr. Loftus testified that in cases in which convicted defendants have been exonerated, most of which involve the use of DNA evidence, roughly 70 percent of the cases involved the identification of a “demonstrably innocent defendant” by a witness or witnesses. He testified he obtained the 70 percent figure by looking at information collected by the Innocence Project over the course of three to four decades and made available on their webpage. He stated that though he has not really looked into the details of any of the listed cases, he believes the Innocence Project is a fairly reliable source.

On cross-examination, Dr. Loftus admitted to not knowing how the Innocence Project goes about identifying exoneration cases, but he stated that exoneration cases tend to be pretty news-worthy because they are rare, and the Innocence Project keeps a close eye out for them. Of the 367 exoneration cases identified by the Innocence Project, Dr. Loftus said he has read “relatively detailed descriptions”—i.e., someone else’s summary of witness testimony—of maybe 10 or 20 of them. He also admitted he could not say what portion of each the cases he reviewed were formed based on eyewitness testimony, that he has not spoken with any defense attorneys or witnesses about those cases, and he has not read any police reports from those cases. He also admitted he could not say in how many of the exoneration cases eyewitness identification was the basis for the jury’s determination of guilt. Dr. Loftus took the position that these figures show that in at least some instances, people have formed false memories, demonstrating the possibility of forming false memories that lead to misidentifications cannot be dismissed. When asked by the court, Dr. Loftus acknowledged that he did not have numbers concerning when eyewitness identifications have led to rightful convictions, but that the number would likely be large. He stated he does not know the percentage of people identified by eyewitnesses who are actually guilty.

The court found that testimony by Dr. Loftus concerning the alleged misidentification of witnesses as the leading cause of wrongful convictions in other cases would be “confusing and highly prejudicial,” and it did not find that the proposed testimony to be helpful. The court stated that without corresponding evidence regarding the number of eyewitness identifications that led to rightful convictions, the jury would have no way of placing the statistics in context. The court also found that the fact that there had been wrongful convictions in unrelated cases would have no real relevance in the instant case unless the witness could go into the facts of those cases and opine as to how those facts compare to this case, which would “take an inordinate amount of time.” This was particularly true given Dr. Loftus had not himself studied the exoneration cases and instead relied on Innocence Project data. The court also found that testimony would primarily serve to evoke an emotional response from the jury, suggesting to the jury that in the absence of corroborating evidence like DNA, they could never have confidence in positive identifications. The court also found opinion testimony that eyewitness testimony was the leading cause of wrongful convictions lacked foundation, because Dr. Loftus did not review all the evidence in the cases in which the convicted persons had been exonerated. The court found that under Evidence Code section 352, opinion testimony that eyewitness misidentification is a leading cause of wrongful convictions would be highly prejudicial and would have no probative value, and, therefore, that the prejudicial effect of the proposed testimony outweighed the evidence’s probative value. The court ordered the defense to stay away from this line of questioning.

2. Evidence Code Section 402 Hearing Testimony and Ruling on the Confirmation Bias Issue

Dr. Loftus responded in agreement to the defense’s question asking if he was prepared to testify that it is his opinion that once a witness receives confirmation of their identification of a suspect, they may alter their memory to reflect a more confident identification “or to reflect other conditions that are more favorable to a reliable identification.” Dr. Loftus explained that there had been a variety of studies, most of which had been carried out by Dr. Gary Wells in a staged atmosphere, the results of which indicated that if a test subject was told they picked the right person from a lineup, even if the subject did not pick the right person, the subject’s confidence that he or she picked the right person would increase, and the subject’s memory of the circumstances under which he or she viewed the perpetrator would change to reflect a situation that was more conducive to memorizing the perpetrator to begin with. For example, they would remember themselves as paying more attention or as viewing the perpetrator longer.

Dr. Loftus described one type of study as one in which subjects would be shown a live lineup in which the supposed perpetrator was absent from the lineup. As such, any identification of a perpetrator from the lineup would be false. Of the people who would choose someone from the lineup, they would be divided into two groups, one in which they were given information that they made a right choice, and a control group where they were not told anything about the accuracy of their selections. Relative to the control group, the experiment group subjects developed memories of viewing the perpetrator under circumstances that would be more conducive to forming a memory of the perpetrator. They would also have greater confidence in their identifications. The defense asked Dr. Loftus if seeing a person they identified in court might affect a witness’s memory of how they saw a perpetrator initially, even if officers did not say anything to the witness after the witness made an identification. Dr. Loftus responded, “t could,” but conceded he did not know of any experiments that had been performed regarding the impact of seeing somebody in court. In the experiments Dr. Loftus described, “the feedback was provided pretty much immediately after the witness made their selection.”

3. [i]Evidence Code Section 402 Hearing Testimony and Ruling on the Lineup Procedure Issue

Dr. Loftus testified that when a police officer conducting a lineup knows who a suspect is—i.e., when a lineup is not double blind—and the witness chooses that suspect, you cannot rule out that the witness’s selection was based, at least in part, on some kind of information being conveyed by the police officer. Dr. Loftus stated in addition to overt ways of communicating information, people have nonverbal ways to communicate. He said when lineups are done double blind, it’s easier to conclude the witness selected a person based on their own memory. Dr. Loftus testified there had been studies performed at the commission of the Illinois State Legislature to investigate blind versus nonblind lineups. The studies involved approximately 540 real photo and live lineups. Half of the lineups were performed double blind and, based on another recommendation, with lineup subjects each being shown one at a time (the Recommended Method). The other half were not double blind, and in them the lineup members were presented all at once (the Traditional Method). The findings were that there was a 33 percent increase in witnesses selecting the suspect when the lineup was done using the Traditional Method. Dr. Loftus testified he had done a mathematical analysis of the data from those studies and determined there was a five- to six-fold increase in false identifications in the Traditional Method as compared to the Recommended Method.

On cross-examination, Dr. Loftus admitted that he had drafted a paper regarding the Illinois study and his analysis of it in 2011 with an Illinois public defender, but that the paper was still being revised and not yet published. He admitted his calculations using that data—i.e., his estimate of increased false identifications in one scenario—relied on “witness theory.” He described witness theory as “complex and mathematical,” but essentially a theory regarding how a witness makes a choice. He said he was unaware if anyone other than him had used witness theory to analyze lineup data. In his analysis he notes there are a variety of ways someone can make an identification, and he testified as to how some of those means of identification were seen as more legitimate than others. He testified that in his paper he estimated that in 79 percent of cases a lineup administrator will guide a witness to a suspect. He also stated that to reach his overall conclusion regarding the risks of identification using the Traditional Method he had to make assumptions regarding the number of suspects who were identified that were actually innocent. He testified he believes the consequences stemming from doing a nondouble-blind lineup are greater than those from doing a lineup when everyone appears at once. He discussed how some studies had performed a meta analysis of the data to come up with the differential between running a lineup where each person in the lineup is presented on their own as opposed to one where all lineup members are presented at once.

The court decided that statistics could not be offered by Dr. Loftus on this issue. It stated, “I have no confidence from what I heard this morning, and no clear understanding, of the reliability of Dr. Loftus’ analysis of how he arrived at his numbers. I just don’t have any foundation upon which to grab on to upon which to give any credence to those figures. I find it extremely confusing.” It found, under Evidence Code section 352, that the evidence regarding the statistics Dr. Loftus cited had no probative value, and that any probative value was substantially outweighed by its prejudicial effect, in that it would confuse the jury, and it would require an inordinate amount of time for the People to further vet the foundation of Dr. Loftus’s proposed testimony regarding the statistics.

In ruling that the defense could not ask Dr. Loftus about the statistical analysis he has done regarding double-blind lineups, the court allowed, “he is free to say, [‘]I studied blind lineups versus unblind lineups. Here’s what an unblind lineup is. Here’s what a blind lineup is. Here’s where the dangers exist with respect to unblind lineups.[’] And he could set forth the factors he discussed.” For example, the court allowed that he could testify as to how an officer may communicate his or her feelings about a selection nonverbally, or that the placement of the suspects might mean something. Dr. Loftus just was not allowed to offer statistics.

4. Jury Instruction

The court instructed the jury using CALCRIM No. 315, which advises juries regarding how to gauge the reliability of eyewitness testimony identifying defendants. With it, the court told the jury, “you must decide whether an eyewitness gave truthful and accurate testimony.” It advised the jury to consider the following: “Did the witness know or have contact with a defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness’s ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] How certain was the witness when he or she made an identification? [¶] Are the witness and the defendant of different races? [¶] Was the witness able to identify other participants in the crime? [¶] Was the witness able to identify the defendant in a photographic or physical lineup? [¶] Were there any other circumstances affecting the witness’s ability to make an accurate identification?”

5. Dr. Loftus’s Testimony

At trial, Dr. Loftus testified about how memory is formed. He talked about how memories are formed using “conscious experience” information gathered at the time of witnessing and event, and second-source post-event information that fills in gaps in the memory after the event is over. He testified that witnesses cannot dissect which part of their memories come from which source, and that witnesses may confidently remember events in ways that differentiate from reality.

He talked about various factors that can impact the reliability of a memory. He said people are less able to correctly identify a person of a different race than their own. He talked about why a person with little or no actual memory of a person might positively identify someone as the perpetrator of a crime when identification procedures are biased or intrinsically unreliable. One possible source of unreliability he identified was lineups that are not performed using double blind procedures, because it is possible that the administrators of those lineups give off clues, sometimes in subtle, nonverbal ways.

B. Standard of Review

“California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720), and to give testimony in the form of an opinion (Evid. Code, § 801).” (People v. Ewing (2016) 244 Cal.App.4th 359, 381) A testifying expert may “express an opinion on ‘a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).) In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.” (People v. Sanchez (2016) 63 Cal.4th 665, 675.) “ ‘The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.’ (People v. McDowell (2012) 54 Cal.4th 395, 426.)” (People v. Duong (2020) 10 Cal.5th 36, 60; see also People v. Ewing, supra, 244 Cal.App.4th at p. 381.)

Here, the trial court acted well within its discretion when it entered a ruling on the three issues raised in the People’s motion and at the Evidence Code section 402 hearing.

On the Wrongful Conviction issue, the trial court fairly concluded that allowing Dr. Loftus to testify that misidentification was the leading cause of wrongful convictions would be highly prejudicial and confusing. Given Dr. Loftus’s inability to put the data regarding wrongful convictions into any sort of context—be that by describing the specifics of the cases in which those convictions occurred or by providing a comparative figure for when witness identifications could be confirmed as leading to correct convictions—and the emotional response such testimony would likely evoke in the jury, the trial court acted within its discretion in finding the prejudice caused by this testimony would outweigh any possible probative value.

Similarly, the court acted within its discretion when it prevented Dr. Loftus from testifying about the specific results of the Wells studies on the Confirmation Bias Issue. Those studies were performed in artificial settings that suggest the results may have been impacted by factors that were not at issue in this case. For example, in the studies, test subjects were encouraged to make their best guesses, even if they were reluctant to. In contrast, here, a transcript from the police lineup with Stephanie S. in which she identified defendant reveals the lineup administrating officer told her, “if you don’t see anybody you recognize, just don’t pick anybody. . . . I want you to feel confident.” And she clarified that this meant she should not guess, and that she should only select someone if she was 100 percent sure. Additionally, in the Wells experiments, (a) the witness selection, offering of confirmation, and witness assessment of their confidence in their selection happened in a short amount of time; and (b) the test subjects were told they picked the right person, while, here, defense counsel’s primary concern was that a confirmation bias might occur as a result of seeing the defendant in court—i.e., not as a result of someone telling them they picked the right person—months after the initial crime and witness lineups occurred.

Finally, the trial court acted within its discretion to prevent Dr. Loftus from testifying that lineups performed using the Traditional Lineup methods result in false identifications a rate of five- to six-fold the rate of false identifications when performed under Recommended Lineup procedures. His data analysis was, indeed, confusing, and it had not yet been presented in a peer reviewed study. Also, his testimony regarding analysis by other experts on the impact of having all lineup members appear at once or separately did not inspire confidence. Moreover, the trial court did not prevent Dr. Loftus from testifying that it is his opinion there are problems with nonblind lineup procedures. The trial court permitted Dr. Loftus to testify as to the differences between double blind and unblind lineups, that he had studied them, and that he developed certain concerns as a result of his studies.

Defendant relies on People v. McDonald (1984) 37 Cal.3d 351 (McDonald) (partially overturned on unrelated grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914) to support his position that the trial court erred in excluding portions of Dr. Loftus’s proposed testimony. This reliance is misplaced. In McDonald, a defendant was charged with shooting a victim during a robbery. (McDonald, at p. 355.) Seven witnesses who saw the crime from varying distances provided equivocal identifications of the defendant as the assailant. (Id. at pp. 355-358.) The defendant presented testimony by several witnesses who stated he was in another city the day of the killing and supported their testimony with postcards and phone bills. (Id. at p. 360.)

The Supreme Court reversed the defendant’s murder conviction, citing the trial court’s exclusion of all expert testimony regarding the reliability of eyewitness identification. The defense expert would have informed “the jury of various psychological factors that may affect the reliability of eyewitness identification, and to ‘help to counter some common misconceptions’ about the process.” (McDonald, supra, 37 Cal.3d at p. 361.) Among the factors the defense expert would have testified to were: “[T]he observer’s state of mind, his expectations, his focus of attention at the time, the suddenness of the incident, the stressfulness of the situation, and differences in the race and/or age of the observer and the observed,” and how the recall of a memory can be affected by things like the phrasing of a question, discomfort in making a lineup identification, and a wish to end the experience of picking a suspect in a lineup. (Id. at pp. 361-362.)

In contrast to McDonald, the trial court in the present case allowed Dr. Loftus to testify about the various factors affecting memory and identification, including the impact of witnesses and perpetrators being different races, the risks of using nondouble-blind lineup procedures, and how memories are formed. In drawing some limits around the potential scope of Dr. Loftus’s testimony, the court carefully considered the proffered testimony weighing its relevance and potential prejudicial impact. We find no error by the trial court.

Defendant also claims the court’s exclusion of Dr. Loftus’s testimony on false identification violated his constitutional right to present a defense. However, when evidence is properly excluded under Evidence Code section 352 the defendant’s constitutional rights are not violated. (People v. Mills (2010) 48 Cal.4th 158, 194, 196.)

III

The Trial Court Did Not Abuse Its Discretion When It Denied Defendant’s Romero Motion

A. Romero Motion and Sentencing

Defendant brought a motion to strike some of his enhancements, including the two prior convictions that were strikes, under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). At the sentencing hearing, but before the trial court sentenced defendant, the court heard argument on the Romero motion and denied it.

In denying the motion, the court found defendant fell within the spirit of the three-strikes scheme. It reasoned that the prior conduct that gave rise to the prior strikes was not remote in time; the offenses at issue in this case occurred within four years from release from custody, and one of the current offenses occurred while defendant was still under supervision for an earlier offense. The court noted defendant also had a 2011 conviction for receiving stolen property under section 496, subdivision (a), which meant he was under a term of five years’ probation at the time of the 2014 and 2015 strike offenses.

Defendant also has misdemeanor domestic violence offenses from 2011 and 2013 which resulted in probation and some jail time on his record. The court observed defendant had a juvenile record, but declined to consider that record in ruling on the Romero motion. “In short,” the court reasoned, “when you view the totality of his adult record, the defendant has a nonstop history of criminal conduct beginning in 2011. Each of these offenses involve acts of violence, and the conduct in subsequent offenses appears to be rising and increasing its level of violence and seriousness. [¶] Since 2011 he has either been in custody or on some grant of supervision. Further, I do not see and make the finding that he has taken any steps to change his ways. [¶] The presentence report states that his occupation is unknown. During the trial, a UPS employee card with Mr. Taylor’s name on it was received in evidence, causing me to believe that he was at one time employed by UPS, but I have no information concerning that. [¶] Absent from your pleadings, Mr. Danilowitz, is any information concerning Mr. Taylor’s schooling, schooling that he may have undertaken, any jobs he may have held, anything that might show me he is inclined to lead a productive, law-abiding life. Those are factors that I need to consider when viewing whether to grant a motion to strike a prior serious felony conviction, but you offer me nothing in that way.”

Considering “the circumstances that led to the arrest of the defendant in this case” and his criminal past and prior prison commitments, the court declined the request to exercise discretion to dismiss the strike, characterizing defendant as the sort of person the three-strikes law had in mind. The court also characterized the offenses here as violent: one incident involved pushing down an elderly woman and the other two involved using a knife. The court also concluded there were no extraordinary circumstances to justify finding defendant fell outside of the spirit and intent of the three-strikes law.

The trial court recognized the strike findings had the potential “for producing a very lengthy, in some person’s mind Draconian, sentence, but” believed that “on these facts, when applying the factors” a court “must consider under Romero, . . . it would be an abuse of discretion to grant [defendant’s] motion to strike.”

After the court denied defendant’s Romero motion, it moved onto sentencing. First, it described the probation officers sentencing recommendation in detail. Second, the court gave both parties an opportunity to make statements. Defense counsel urged the court to show some leniency. The People read a letter from the daughter of victim Kathleen F., and asked the court to impose the maximum sentence. As part of their justification for requesting the maximum sentence, the People stated, “I understand that the numbers that we are talking about today, just in looking at the reasonable likelihood of the length of someone’s life, that it goes beyond that. The reality is the law changes, and what I have found, especially with some of the recent law changes that have been passed, is that people expect that defendants are punished at the appropriate level based on the conduct, and then at a later point, when those sentences are changed, there’s an expectation that a full sentence was rendered. [¶] And so my concern is that, if the Court imposes a lesser sentence, that will in some way have an unanticipated benefit to the defendant that I don’t think he deserves.”

Next, the court made various findings that informed its sentencing decision and among the factors was the court’s conclusion that Ryan S.’s testimony regarding defendant’s use of a knife was credible and there was other evidence to suggest a knife was used. Not included in the factors and findings the court considered was any reference to possible future amendments to sentencing laws and the possibility that those amendments might reduce defendant’s sentence. Finally, the court imposed at total determinate sentence of 33 years, and an indeterminate sentence of 75 years to life.

B. Standard of Review

Section 1385, subdivision (a), allows a judge to, “either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” Our Supreme Court has held that this “power to dismiss an action includes the lesser power to strike factual allegations relevant to sentencing, such as the allegation that a defendant has prior felony convictions.” (Romero, supra, 13 Cal.4th at p. 504.) This includes the power to dismiss prior felony conviction allegations that arise under the three strikes law contained in section 667, subdivisions (b) through (i). (Ibid.) “[A] court’s failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.) When a court exercises its discretion under section 1385, it must balance both the constitutional rights of the defendant and the interests of society represented by the People. (Romero, supra, 13 Cal.4th at p. 530.)

C. The Trial Court Did Not Abuse Its Discretion

Defendant argues that the court considered various “improper” factors and failed to consider certain relevant factors when it denied the Romero motion. We do not agree.

To begin with, one of the factors defendant argues the court considered improperly was possible changes to the law that might later reduce defendant’s sentence. Defendant reasons that the prosecutor asked the court to consider possible future amendments to sentencing laws, and the court did not disagree with the prosecutor’s statements when it made its finding and entered a sentence. This argument is unpersuasive. The prosecutor did not make the statements defendant takes issue with until after the court made its ruling on the Romero motion.

Next, defendant argues the court improperly considered his use of a knife in the August 8, 2019, robbery of Ryan S., even though the jury could not make findings on allegations that defendant used a knife during that incident. Defendant argues the court’s consideration of the use of the knife amounts to an abuse of discretion.

In his briefs, defendant offered no legal support for this argument. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785, italics added; see also Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must state each point under a separate heading or subheading summarizing the point, “and support each point by argument and, if possible, by citation of authority”].) The record reflects the trial court carefully considered the evidence regarding the use of the knife on August 8, 2019, before factoring in the use of the knife, and defendant fails to point to any authority to suggest the court’s consideration of the knife when the jury made no finding of knife use was, per se, an abuse of discretion.

The one citation defendant included with this portion of his brief was to People v. Harris (2009) 171 Cal.App.4th 1488, 1498, in which the Fourth District Court of Appeal said, “[w]e recognize that the acquittal of a charge or not true finding of a sentencing allegation generally does not bind the trial court from redetermining the personal use issue for Proposition 36 purposes based on the preponderance of the evidence standard because an acquittal or not true finding merely means that the jury was not convinced beyond a reasonable doubt on such issue.”

This would appear to suggest that the trial court is not bound by a not true finding by a jury—which is a more certain finding than what we have here, where the jury reached no finding as to the truth of the knife allegation. In the reply brief, defendant cites a case in which the Supreme Court found a jury must find a fact true beyond a reasonable doubt if the fact is used to increase the sentence for a felony beyond the maximum permitted by conviction on the charged offense alone, but then he says this case does not violate that rule.

Third, defendant challenges the trial court’s conclusion that he has a nonstop history of criminal conduct, stating the crimes at issue here are “somewhat commonplace crimes” and did not really render him worthy of an enhanced sentence under the three-strikes law. Yet, “[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling . . . . (People v. Wade (1959) 53 Cal.2d 322, 338.)” (People v. Myers (1999) 69 Cal.App.4th 305, 310.) The circumstances “where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme” must be particularly “extraordinary.” (People v. Carmony, supra, 33 Cal.4th at p. 378, italics added; see also People v. Strong (2001) 87 Cal.App.4th 328, 332.)

“The well-recognized purpose of the three strikes law is to provide increased punishment for current offenders who have previously committed violent or serious crimes and have therefore not been rehabilitated or deterred from further criminal activity as a result of their prior imprisonment. (People v. Davis (1997) 15 Cal.4th 1096, 1099.)” (People v. Leng (1999) 71 Cal.App.4th 1, 14; see also People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 357-358 [purpose of the three strikes law is to ensure “ ‘longer prison sentences and greater punishment’ for serious recidivists, i.e., those felony defendants who have previously been convicted of serious and/or violent crimes”].)

In short, the standard is not whether the crimes at issue were merely “commonplace,” it is whether there was something “extraordinary” about this defendant and these crimes that warrant removing his punishment from the three-strikes scheme. That they may have been commonplace does not change that they were violent and that there is a public interest in removing someone with defendant’s record of violence and recidivism from the community for a longer period of time than we would remove someone for whom one of the instant crimes was a first offence.

Finally, defendant argues that the trial court failed to consider his age (32 at the time of sentencing) and the length of the proposed sentence when it denied the Romero motion. Among other things, to support this argument, defendant argues the resulting punishment is excessive and, “[t]he crimes committed did not involve violence or physical injury.” Quite the contrary, the crimes did involve violence. While it is true that no one was seriously hurt, the evidence shows defendant punched one victim, he knocked three to the ground, he slammed a woman in her 80’s into a metal door, and he brandished a knife during at least one of the attacks. While no one was seriously injured, defendant acted in a way where serious injury was a real risk and it was merely fortuitous that no one was seriously injured. Nothing about this fact pattern suggests the court abused its discretion in denying the Romero motion.

Defendant’s reliance on People v. Bishop (1997) 56 Cal.App.4th 1245 to support his argument that the trial court erred in failing to consider factors is misplaced. In Bishop the court considered and upheld a trial court’s exercise of its discretion to dismiss a strike when the defendant was charged with “petty theft with a prior theft-related conviction that resulted in incarceration.” (Id. at p. 1247.) Here, defendant challenges the trial court’s decision to not dismiss a strike offense, and the current and prior offenses are robberies.

In short, the trial court did not abuse its discretion in denying defendant’s Romero motion. It did not improperly consider the various factors defendant argues it ought not to have considered, and it did not fail to properly consider factors defendant argues it ought to have considered.

Disposition

We affirm the judgment of the trial court.

HULL, J.

We concur:

BLEASE, Acting P. J.

HOCH, J.