Filed 9/15/16 P. v. Ferguson CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A144768
v.
LEON ERNEST FERGUSON, (Contra Costa County
Super. Ct. No. 05-131170-3)
Defendant and Appellant.
Leon Ernest Ferguson appeals after a jury convicted him of multiple counts arising
from four separate robberies. He argues (1) his convictions of kidnapping for robbery
(Pen. Code, § 209, subd. (b))1 lack substantial evidence; (2) the trial court erred in
limiting the testimony of appellant’s expert witness; and (3) a prior prison term
enhancement should be stricken. We agree with appellant’s final contention, and
otherwise affirm.
BACKGROUND
Robbery of Rosalez and Rios
About 9:30 p.m. on February 13, 2011, Eleana Rosalez and George Rios were on
the porch outside their apartment. A man approached, pulled out a gun, and demanded
money. He took property from Rosalez and Rios; after asking Rosalez if she had
anything in her bra, he put his hand inside her bra to check. The man then told Rosalez
1
All undesignated section references are to the Penal Code.
1
and Rios to open the front door and go inside. After they all entered, the man shut the
door behind him. Rosalez’s two-year-old son, Alexander, was inside the apartment with
a pit bull puppy. When Alexander saw them, Rosalez asked the man to put his gun away
and he slid the gun up his sleeve. The man told them to go upstairs and he followed them
into the master bedroom. The man took some property and the puppy, told them to stay
upstairs, took more property downstairs, and then left.
Rosalez told officers the perpetrator was an African-American male, 22 or 23
years old, about six feet tall, 170 to 180 pounds, and wearing a gray and green plaid,
button up hoodie. Four days later, Rosalez identified appellant out of a series of six
photographs. Rios did not recognize the robber in a photographic lineup four days after
the robbery.
Robbery of Pickett
About 10:40 p.m. on the same night Rosalez and Rios were robbed, a man
approached David Pickett outside his apartment, one or two blocks from Rosalez and
Rios’s apartment. The man robbed Pickett at gunpoint. Pickett told officers the robber
was an African-American male, about 5 feet 10 inches tall, wearing a gray and blue
checkered jacket over a gray hoodie, in his late 20s to 30s, and weighing about 150 or
160 pounds. In late March 2011, Pickett was shown a six person photographic lineup; he
identified someone other than appellant as possibly the robber.
Robbery of Dessureault and Hernandez
About 11:20 p.m. on the same night as the prior two robberies, Joseph Dessureault
and Jasmine Hernandez were in the parking lot outside Dessureault’s apartment, which
was located in the same apartment complex as Rosalez and Rios’s apartment. Hernandez
testified a man robbed them at gunpoint, reached into her bra to check for money, and
then left.
Hernandez told police the robber was an African-American male with a dark
jacket and gray hooded sweatshirt. Dessureault told the police the robber was an
African-American male, between 20 and 30 years old. Four days after the robbery,
Hernandez and Dessureault were separately shown a photographic lineup; Hernandez
2
thought one of the men—not appellant—looked familiar, and Dessureault identified
appellant.2
Robbery of Sam’s Jewelers
The next day, on February 14, 2011, about 10:30 a.m., Fazle Tiwana and Zulfiqar
Malik were working in Sam’s Jewelers, located across the street from the previous
night’s robberies. Three African-American men in their early 20s entered, looked at a
ring, and left. One of the men soon returned and asked to see the ring again. The man
then began to run out of the store with the ring; Tiwana grabbed his jacket and he fell to
the ground, dropping his cell phone before he ran out the door. Tiwana gave the cell
phone to the police.
Tiwana described the robber as about 5 feet 10 inches tall and 175 to 190 pounds.
When shown a photographic lineup two weeks after the robbery, Tiwana did not identify
anyone as the robber. At trial, he said appellant’s face looked different than the robber’s.
Two weeks after the robbery, Malik identified appellant in a photographic lineup.3
Cell Phone Evidence
Police examined the cell phone dropped by the robber at Sam’s Jewelers.4 The
phone contained two photographs that appeared to be “selfies.” Appellant admitted to the
police that he was the person in the photographs. The phone also contained a photograph
of a pit bull puppy, taken on the morning of February 14, 2011. Rosalez identified the
puppy in the photograph as the puppy that had been stolen from her the night before.
2
At trial, Dessureault—who claimed not to remember almost any details about the
robbery and admitted testifying to the grand jury about his fears of retaliation—testified
that he had never seen appellant before in his life and that he picked appellant’s
photograph in the photographic lineup because Hernandez told him to pick it. Hernandez
denied telling him which photograph to pick.
3
At trial, Malik testified he did not remember the theft or any related details. He
admitted testifying before the grand jury that he was afraid of retaliation if he testified
against appellant.
4
The cell phone provider did not require identification to become a service subscriber,
and the name given for the registered subscriber was “Baby Honey.”
3
In the week leading up to the robberies, there were well over 100 calls and texts
between the cell phone and Julia Whitaker’s phone, including several texts back and forth
about 11:40 p.m. on February 13 and four calls on the morning of February 14. When
asked by the police in a March 2011 interview for the name of his spouse or significant
other, appellant identified Julia Whitaker. There were also two calls from the cell phone
to appellant’s mother during the days before the robberies.
Handgun Evidence
Rios, who had experience with guns from hunting, identified the gun used by the
robber as a black, nine millimeter, semiautomatic handgun. Pickett told the police the
gun was a black semiautomatic pistol. Dessureault told the police the gun was a black,
nine millimeter, semiautomatic or .40 caliber glock-style handgun.
On February 18, 2011, appellant fled to December Carroll’s residence when
officers approached him for reasons unrelated to the robberies. The officers asked
appellant where his gun was and appellant told them he had thrown it outside, changing
his story several time regarding where it was. Carroll told police appellant entered her
house with a gun and ran into one of the bedrooms. Police found a black, nine
millimeter, semiautomatic handgun in the bedroom.
Defense Evidence
Dr. Deborah Davis testified for the defense as an expert in eyewitness
identification. Her testimony is discussed in detail below.
Verdict and Sentencing
The jury found appellant guilty of kidnapping for robbery of Rosalez (§ 209, subd.
(b)); kidnapping for robbery of Rios (§ 209, subd. (b)); first degree robbery of Rosalez
(§§ 211, 212.5, subd. (a)); first degree robbery of Rios (§§ 211, 212.5, subd. (a)); sexual
battery by restraint of Rosalez (§ 243.4, subd. (a)); being a felon in possession of a
firearm (former § 12021.1 (current § 29900)); second degree robbery of Pickett (§§ 211,
212.5, subd. (c)); second degree robbery of Hernandez (§§ 211, 212.5, subd. (c)); second
degree robbery of Dessureault (§§ 211, 212.5, subd. (c)); second degree robbery of
Tiwana (§§ 211, 212.5, subd. (c)); and second degree burglary of Sam’s Jewelers
4
(§§ 459, 460, subd. (b)). The jury also found true allegations that appellant personally
used a firearm in connection with all kidnapping and robbery charges related to Rosalez,
Rios, Pickett, Hernandez, and Dessureault. (§ 12022.53, subds. (a)(3), (a)(4), (b).)
Appellant pled no contest to an additional count of being a violent offender in possession
of a firearm. (§ 29900, subd. (a)(1).) The court found true an allegation that appellant
had a prior conviction. (§§ 667, subd. (a)(1), 667.5, subd. (b).) The trial court sentenced
appellant to state prison for a term of 46 years to life.
DISCUSSION
I. Kidnapping for Robbery Convictions
Appellant argues the kidnapping for robbery convictions lack substantial evidence
because the forced movement of Rosalez and Rios from their front porch to the inside of
their apartment did not substantially increase their risk of physical or psychological harm.
We disagree.
Section 209, subdivision (b)(1), provides that “[a]ny person who kidnaps or carries
away any individual to commit robbery [or other enumerated offenses] shall be punished
by imprisonment in the state prison for life with the possibility of parole.” By its own
terms, this provision “shall only apply if the movement of the victim is beyond that
merely incidental to the commission of, and increases the risk of harm to the victim over
and above that necessarily present in, the intended underlying offense.” (§ 209,
subd. (b)(2).)5 “These two elements are not mutually exclusive but are interrelated.
5
This test was first articulated in People v. Daniels (1969) 71 Cal.2d 1119, which
provided the movement must “substantially” increase the risk of harm. (Id. at p. 1139.)
The Legislature omitted the word “substantially” when it codified the Daniels test in
1997 (see People v. Vines (2011) 51 Cal.4th 830, 870, fn. 20 (Vines)), and the parties
dispute whether the applicable test requires the risk of harm be substantially increased, or
just increased by any amount. Our Supreme Court has noted, albeit in dicta, that the
codification “modified the asportation standard by eliminating the requirement that the
movement of the victim ‘substantially’ increase the risk of harm to the victim.” (Id. at
pp. 869–870 & fn. 20 [applying Daniels test because codification occurred after the
defendant’s crimes].) Appellant asserts the legislative history demonstrates the
Legislature did not intend to modify the Daniels standard, but neither recites nor analyzes
the applicable legislative history and has therefore forfeited this argument. (People v.
5
[Citations.] [¶] With regard to the first prong, the jury considers the ‘scope and nature’ of
the movement, which includes the actual distance a victim is moved. [Citations.] There
is, however, no minimum distance a defendant must move a victim to satisfy the first
prong.” (Vines, supra, 51 Cal.4th at p. 870.) The second prong “ ‘ “refers to whether the
movement subjects the victim to a substantial increase in risk of harm above and beyond
that inherent in [the underlying crime]. [Citations.] This includes consideration of such
factors as the decreased likelihood of detection, the danger inherent in a victim’s
foreseeable attempts to escape, and the attacker’s enhanced opportunity to commit
additional crimes. [Citations.] The fact that these dangers do not in fact materialize does
not, of course, mean that the risk of harm was not increased.” ’ ” (Ibid.) The risk of
harm can be either physical or psychological. (People v. Nguyen (2000) 22 Cal.4th 872,
886.)
Two cases with strikingly similar facts have upheld kidnapping for robbery
convictions. In People v. Simmons (2015) 233 Cal.App.4th 1458 (Simmons), the
defendants, in two separate instances, approached victims in front of their homes; robbed
them at gunpoint; forced them to enter their homes, where additional victims were
present; and stole additional items inside the homes. (Id. at pp. 1469–1471.) After the
jury convicted the defendants of kidnapping for robbery, the defendants argued the
movement of the victims was incidental to the robberies and did not increase the victims’
risk of harm. (Id. at p. 1471.) The Court of Appeal rejected the argument, finding the
movement into the victims’ homes “decreased the likelihood the defendants would be
detected and increased the victims’ risk of harm. It allowed the defendants to engage in
additional and more dangerous crimes by hiding their victims from public view and
providing access to additional victims, and it increased the possibility of something going
awry and somebody getting hurt.” (Id. at p. 1472.)
Bryant (2014) 60 Cal.4th 335, 363–364.) In any event, as we will conclude below,
substantial evidence supports the convictions under either standard.
6
Similarly, in People v. Ellis (1971) 15 Cal.App.3d 66, the defendant and an
accomplice approached four separate victims outside their apartments; robbed one of the
victims on the street; forced or attempted to force all of the victims into their apartments;
and, once inside the victims’ apartments, stole items and in some instances committed
additional crimes. (Id. at pp. 72–73.) The trial court set aside the indictment’s counts
alleging kidnapping for robbery. (Id. at p. 67.) The Court of Appeal reversed, finding
“the asportation of the female victims from the public street to their confined upstairs
apartments . . . did ‘substantially increase the risk of harm over and above that necessarily
present in the crime of robbery itself.’ [Citation.] On the street violence must necessarily
be kept to a minimum because of the obvious risk of discovery and apprehension. But in
the [victims’] closed apartments the men would need have little fear of being hindered in
their criminal plans, which here also included sexual and other violent assaults on their
victims.” (Id. at p. 73.) Although the People discuss Simmons and Ellis at length in their
brief, appellant made no attempt to distinguish them in his reply brief and we see no basis
for any meaningful distinction.6
Appellant argues the movement of a robbery victim from an outdoor to an indoor
setting does not automatically cause a substantial increase in the risk of harm. (See
Simmons, supra, 233 Cal.App.4th at p. 1473 [“simply removing someone from public
view does not necessarily satisfy the requirement that the risk of harm to a victim is
increased”]; People v. James (2007) 148 Cal.App.4th 446, 456 (James) [“There is no
rigid ‘indoor-outdoor’ rule by which moving a victim inside the premises in which he is
found is never sufficient asportation for kidnapping for robbery while moving a victim
6
Simmons did conclude the movement in that case, in addition to causing an increased
risk of harm, “caused additional harm in fact. [One of the victims] testified about his
understandably heightened fears when [the defendant] pushed a gun into his spine before
they entered his home and when, once inside, he had to bear witness to threats to his
family and friends.” (Simmons, supra, 233 Cal.App.4th at p. 1472.) Rosalez’s testimony
about whether she was more afraid inside her house than outside is not entirely clear; in
any event, the fact was not dispositive in Simmons but rather an additional piece of
evidence supporting the conviction.
7
from inside to outside (or the reverse) is always sufficient.”].)7 However, a number of
cases have concluded, in various factual settings, that the victim’s movement from a
public to a private location did substantially increase the risk of harm. (People v.
Dominguez (2006) 39 Cal.4th 1141, 1153 [affirming kidnapping for rape conviction
where the movement “changed the victim’s environment from a relatively open area
alongside the road to a place significantly more secluded, substantially decreasing the
possibility of detection, escape or rescue”]; People v. Shadden (2001) 93 Cal.App.4th
164, 170 [“By moving [the victim] to the back room, [the defendant] placed her out of
public view. This made it less likely for others to discover the crime and decreased the
odds of detection. [Citation.] When he closed the door, he enhanced his opportunity to
rape and injure her.”]; People v. Jones (1999) 75 Cal.App.4th 616, 629–630 [“The critical
factor which substantially increased the risk of harm to [the victim] occurred when [the
defendant] forced her to move the 40 feet [within a parking lot] in order to then push her
into her car. Although the car alarm was sounding, once he pushed her into the car, she
was no longer in public view as when she was in plain sight with appellant holding his
hand over her mouth—a situation which would have aroused concern immediately in any
onlookers.”]; People v. Salazar (1995) 33 Cal.App.4th 341, 348 [movement of victim
from exterior walkway to motel room meant “the likelihood of anyone detecting [the
defendant] decreased dramatically” and “he had an enhanced opportunity to perpetrate
any additional crimes he desired”]; see also James, supra, at p. 456 [“it has often been
held that . . . defendants who moved their victims to more secluded or enclosed areas did
substantially increase the risk [to the victims]”].) In this case, as in Simmons and Ellis,
7
As appellant notes, there are cases reversing aggravated kidnapping convictions in
circumstances where the victim was moved to a more secluded setting. (In re Crumpton
(1973) 9 Cal.3d 463, 466 [service station attendant moved from a location near the
service island to the ground behind a truck parked on the station premises]; People v.
Killean (1971) 4 Cal.3d 423, 424 [“In the course of robbing a jeweler and his companion
in the former’s apartment, [the defendants] caused them to move across the threshold and
through various rooms in search of valuables.”]; People v. Williams (1970) 2 Cal.3d 894,
899–900 [victim moved from public area of service station premises to the inside of a
locked bathroom].)
8
the movement of Rosalez and Rios from the public location of their front porch to the
interior of their apartment substantially decreased the likelihood of detection and
increased appellant’s opportunity to commit additional crimes—including crimes against
an additional victim, two-year-old Alexander—without arousing the suspicion of passers-
by. This movement substantially increased the victims’ risk of harm.
Appellant argues Rosalez and Rios were at no greater risk of harm from the
movement than they would have been had he broken into their apartment in the first
instance and confronted them there. He cites no authority specifically providing that this
is the appropriate test by which to measure the increase in risk of harm. To the contrary,
such a test appears to be implicitly rejected by the analysis of Simmons, Ellis, and the
other cases cited above finding an increased risk when the victim was moved from a
more public to a more private location.
II. Expert Testimony
Appellant argues the trial court’s ruling limiting the testimony of Deborah Davis,
the defense expert on eyewitness identification, was in error and deprived him of his right
to present a full defense. We disagree.
A. Background
Prior to Davis’s testimony, the trial court held a hearing on the prosecutor’s
objection that her testimony would include studies involving wrongful convictions based
at least in part on eyewitness testimony. The court noted, “there are plenty of other
studies done with the objective of actually demonstrating in a scientific manner the
fallibility of eye witness identification and there is no need to suggest to this jury that
there are all of these cases, particular criminal cases, in which there may have been an
incorrect result based on eye witness identification testimony.” The court precluded the
defense expert from referring to studies “relating to specific criminal convictions or
groups of criminal convictions,” noting, “[i]f for no other reason, I’m excluding [such
testimony] under [Evidence Code section] 352.”
Dr. Davis proceeded to testify at length. According to her testimony, “eye
witnesses are much more inaccurate than people tend to expect that they are.” People
9
process unfamiliar faces differently than familiar faces, and may not recognize the same
unfamiliar face if there are changes in angle, facial expression, and context. Similar
clothing may mislead eyewitnesses. People are much worse at correctly identifying
members of a different race. A witness’s observation is impacted by distance, lighting,
whether the person is wearing a hat or hood, whether the witness has used any drugs or
alcohol, and whether the surrounding scene is “complex” (i.e., filled with people and/or
actions). When a weapon is present, a witness is less likely to correctly identify the
perpetrator because the witness’s focus tends to be on the weapon. High levels of stress
also tend to negatively impact a witness’s ability to identify a perpetrator. Memories fade
over time and can be changed or distorted. Identification procedures can impact the
accuracy of a witness’s identification.
During her testimony, Davis discussed numerous different studies demonstrating
these principles. The studies involved different populations—including college students,
Egyptian police cadets, convenience store clerks, and soldiers—and included meta-
analyses, which combine the results of a number of different experiments to determine
the overall effect. Davis also discussed instances of actual misidentification; for
example, she testified about studies in which researchers “went into police archives and
they looked at all of the cases they could find in which a witness tried to make an
identification.” Because police “are supposed to construct lineups so you just have one
suspect and everybody else . . . you know for sure they are not guilty,” the researchers
looked at whether the witnesses identified “the suspect or did they ID one of the known
innocent foils?” Davis summarized the conclusion: “out of real live witnesses who did
identify somebody in a lineup, you could see that over 30 percent --, sometimes a lot over
30 percent were identifying a known innocent foil.” As another instance of actual
misidentification, Davis compared photographs of perpetrators and people who were
misidentified as those perpetrators.
During closing arguments, the prosecutor argued Davis “provided us with over
100 slides and all of these studies of college students, not actual crime victims but college
10
students.” In response, defense counsel argued “a lot of information she gave you came
from case studies, not just student experiments.”
B. Analysis
“When an eyewitness identification of the defendant is a key element of the
prosecution’s case but is not substantially corroborated by evidence giving it independent
reliability, and the defendant offers qualified expert testimony on specific psychological
factors shown by the record that could have affected the accuracy of the identification but
are not likely to be fully known to or understood by the jury, it will ordinarily be error to
exclude that testimony.” (People v. McDonald (1984) 37 Cal.3d 351, 377, overruled on
another ground by People v. Mendoza (2000) 23 Cal.4th 896, 914.) However, “the
decision to admit or exclude expert testimony on psychological factors affecting
eyewitness identification remains primarily a matter within the trial court’s discretion.”
(Ibid.) As relevant here, “any excess in the quantity or complexity of such testimony can
be controlled by the court’s power to limit the presentation of evidence” pursuant to
Evidence Code section 352. (Id. at p. 372; see also id. at p. 367, fn. 11.)
The trial court did not abuse its discretion in excluding the testimony under
Evidence Code section 352. The court could reasonably conclude evidence of wrongful
convictions based on eyewitness testimony was cumulative of other evidence
demonstrating the fallibility of eyewitness identification. We disagree with appellant’s
argument that the ruling “significantly undercut the persuasive force of the defense
eyewitness expert testimony.” Contrary to appellant’s suggestion, the trial court’s ruling
did not preclude Dr. Davis from testifying about any “real world” studies, i.e., studies
involving participants outside of a laboratory. As an example of such a study, appellant
points to studies of police files finding a substantial rate of actual misidentifications at
police lineups, as discussed in State v. Henderson (N.J. 2011) 27 A.3d 872, 886–887.8
8
State v. Henderson, supra, 27 A.3d 872, discussed these and other studies in the context
of revising the state’s framework for excluding unreliable eyewitness identifications with
pretrial hearings and revising the state’s jury instructions on eyewitness identifications.
(Id. at pp. 877–878.) The studies were introduced before a special master appointed to
11
Dr. Davis testified about precisely such studies. She also testified about other studies
involving “real world” participants such as convenience store clerks and soldiers.9 She
testified at length and in great detail about the fallibility of eyewitness identification. The
trial court’s ruling did not substantially dilute the effectiveness of her testimony and was
not an abuse of discretion.
Appellant’s reliance on cases involving child sexual abuse accommodation
syndrome (“CSAAS”) does not alter our conclusion. CSAAS testimony is “ ‘[e]xpert
testimony on the common reactions of child molestation victims,’ ” and “ ‘is admissible
to rehabilitate such witness’s credibility when the defendant suggests that the child’s
conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her
testimony claiming molestation. [Citation] “Such expert testimony is needed to disabuse
jurors of commonly held misconceptions about child sexual abuse . . . .” ’ ” (People v.
Brown (2004) 33 Cal.4th 892, 906.) People v. Bowker (1988) 203 Cal.App.3d 385
reasoned that, “to provide the jury with relevant, accurate information regarding ‘recent
findings of professional research on the subject of a victim’s reaction to [child abuse],’ ”
the testimony “must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the
evidence” and “the jury must be instructed simply and directly that the expert’s testimony
is not intended and should not be used to determine whether the victim’s molestation
claim is true.” (Id. at pp. 393–394.) Appellant argues this framework could be applied to
expert testimony about wrongful convictions involving eyewitness testimony. Assuming
this to be the case, the availability of a possible approach to present the evidence does not
render the trial court’s exclusion of the evidence an abuse of discretion.
Finally, we reject appellant’s contention that the trial court’s ruling violated his
constitutional right to present a defense. Appellant was permitted to present ample
evidence with respect to his misidentification defense. Where, as here, “ ‘ “there was no
evaluate scientific studies about eyewitness identifications; the case did not involve an
expert witness who testified before a jury. (Id. at p. 877.)
9
The prosecutor’s comment during closing argument therefore did not accurately
characterize her testimony, as defense counsel below pointed out.
12
refusal to allow [defendant] to present a defense, but only a rejection of some evidence
concerning the defense,” ’ ” due process is not violated. (People v. Boyette (2002) 29
Cal.4th 381, 428; accord, People v. Thornton (2007) 41 Cal.4th 391, 452–453 [“short of a
total preclusion of defendant’s ability to present a mitigating case to the trier of fact, no
due process violation occurs”].)
III. Prior Prison Term Enhancement
The trial court imposed a consecutive five-year enhancement for a prior serious
felony, a 2007 armed robbery conviction. (§ 667, subd. (a)(1).) The court also imposed a
consecutive one-year enhancement for the prison term resulting from the same
conviction. (§ 667.5, subd. (b).) As the People properly concede, the second
enhancement was in error and we will strike it. (People v. Jones (1993) 5 Cal.4th 1142,
1150 [“when multiple statutory enhancement provisions are available for the same prior
offense, one of which is a section 667 enhancement, the greatest enhancement, but only
that one, will apply”].)
DISPOSITION
The judgment is modified to reflect the one-year enhancement imposed pursuant
to Penal Code section 667.5, subdivision (b) is stricken and, as so modified, is affirmed.
The trial court is ordered to prepare and forward to California’s Department of
Corrections and Rehabilitation an abstract of judgment modified accordingly.
13
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A144768)
14
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