P. v. Ellison

Filed 2/15/08 P. v. Ellison CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis III, Judge. Affirmed.

A jury convicted Jessie Emanuel Ellison of three counts of robbery (Pen. Code,^[1] 211); three counts of assault with a firearm ( 245, subd. (a)(2)); three counts of making a criminal threat ( 422); and three counts of false imprisonment by violence, menace, fraud, and deceit ( 236, 237, subd. (a)). Additionally, the jury found true special allegations that Ellison personally used a firearm in the commission of the robbery ( 12022.53, subd. (b)) and "engaged in the tying, binding, or confining of" the victims of the robbery ( 1170.84). The trial court sentenced Ellison to 15 years in prison.

Ellison appeals, asserting that his convictions must be reversed on two grounds. First, he argues that the trial court erred by admitting evidence regarding the circumstances of his termination from the store that was robbed. Second, Ellison contends that the trial court erred by limiting a defense expert witness's testimony regarding erroneous eyewitness identifications in other criminal cases. As discussed below, we find these contentions to be without merit, and affirm.

FACTS

In 2004, Ellison became an employee of Dollar Tree, a bargain retail store. That same year, he was promoted to assistant manager of the Murphy Canyon location. While Ellison was an assistant manager, the store experienced cash shortages from the store safe and missing deposits. Dollar Tree's corporate office launched an investigation of the Murphy Canyon store that eventually led to Ellison's termination on June 1, 2005.

Approximately four weeks after Ellison was fired, he entered the Dollar Tree store shortly before closing time, at around 9:00 p.m. At that time, assistant manager George Cordova (who had replaced Ellison) and employees Gracie Sanders and Lakeshia Wilson were preparing the store for closing. Cordova saw Ellison enter the store and walk quickly down an aisle, without making "eye contact," as if "he had to get to a certain spot." Cordova knew Ellison because Ellison had visited the store on numerous occasions since his termination to "visit" with the store employees and purchase items. Cordova estimated that he had seen Ellison in the store on five prior occasions since he started working there on May 22.

Cordova, thinking Ellison's behavior was odd, left his register to follow him, but could not locate Ellison anywhere in the public areas of the store. Cordova then proceeded to the back of the store to a nonpublic, warehouse area, where the employees unload deliveries. Cordova observed that the door to the freight loading area outside the store was not secured, as it normally would be. Cordova secured the door, and retraced his steps back toward the retail area of the store. As he did so, Cordova was confronted by a person wearing a mask and holding a shotgun. A second person holding a handgun then stood up and pointed the gun at Cordova's stomach. The two men led Cordova through the warehouse and pushed him against a wall. The man with the shotgun placed the gun on a stack of water bottles with the gun facing Cordova. He then put Cordova's hands behind his back, asked Cordova how much the store made in sales that day, and demanded the code to the store's safe. Cordova gave the man the code. Although Cordova incorrectly instructed the man that an asterisk, rather than a pound sign, should be entered after the code, the robbers were able to open the safe.^[2]

The man then duct-taped Cordova's hands, mouth, and ankles and told him to lie on his stomach. The man kneeled over Cordova to search through his pockets. While the man was kneeled over, Cordova could see under his mask and recognized the man as Ellison. Cordova knew immediately upon seeing him that it was Ellison and had "[n]o doubt at all" about the identification. Ellison then took both the store keys and Cordova's car keys from Cordova, immediately returning Cordova's car keys despite the fact that there was no obvious marker identifying the store keys.

When Cordova did not respond to Wilson's calls for assistance over the intercom, Sanders went to the back of the store, calling for Cordova and started to open the manager's office door. As she turned the knob, someone from inside the office opened the door. Sanders recognized the person that opened the door as Ellison. She had previously seen Ellison about two or three times a week when she was working at a nearby McDonald's (where Ellison came during his breaks), knew that he previously worked at Dollar Tree, and had no doubt about her identification. Ellison then directed Sanders out of the office to an area at the back of the store. There, Sanders saw Cordova lying face down on the floor with his hands, feet, and mouth taped. Ellison's accomplice told Sanders to get on the floor and duct-taped her wrists behind her back.

Wilson headed toward the back of the store when neither Cordova nor Sanders replied to her calls over the intercom. Wilson looked in the office and could see that the safe was open. A man appeared and pointed a gun at her. Wilson's fear and shock from seeing the man with the gun caused her to lose control of her bladder. Wilson was able to get a good look at the man and identified him as Ellison. Wilson had seen Ellison enter the store earlier in the day, around 6:00 p.m., accompanied by another man, and on two previous occasions.

Ellison asked Wilson for the code to her register. Ellison then took Wilson to the area where his accomplice was waiting and the other store employees were being held and tied her up with tape. From Ellison's questions, Wilson got the impression that he was familiar with how the register worked because he "knew what he was doing" and knew which questions to ask to get the information required to open the register.

Ellison and his accomplice told the store employees to remain in the store after they left, and that if the employees did not, Ellison and his accomplice were going to kill them. Soon after, the employees heard the robbers leaving through the back exit and then the sound of a car with a bad muffler driving off. Eventually, the employees were able to release themselves from the duct tape and call the police.

On the night of the robbery, Jamey Garrison, an employee of the adjacent PetSmart store, noticed a dark grey or green Hyundai parked directly in front of the Dollar Tree at closing time. There was a man inside the car and another man, who Garrison identified as Ellison, standing next to the car. Garrison continued collecting shopping carts in the parking lot and later noticed the Hyundai leaving, taking a path that was consistent with driving around to the back of the store. Garrison believed the car had a muffler problem because the exhaust system made "a very loud sound." After the robbery, the police impounded Ellison's green Hyundai Sonata and determined that the car had an exhaust leak that resulted in its making a loud noise when running.

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion by Admitting Evidence Concerning Ellison's Termination from Dollar Tree

Ellison contends that the trial court erred in admitting evidence regarding the events leading up to his termination from Dollar Tree. We address this contention after setting forth the relevant procedural history.

A. Procedural History

At Ellison's first trial,^[3]the trial court granted a prosecution motion seeking the admission of evidence regarding Ellison's termination from Dollar Tree. The prosecution renewed its motion at the second trial, again seeking to introduce "evidence of Mr. Ellison's termination for time card fraud and the fact of safe shortages and missing deposits during [his] employ[ment]." The prosecution contended this evidence was relevant to establish Ellison's motive for the crime and to impeach his credibility as a witness.

At a hearing on the motion prior to the second trial, the trial court, noting that its ruling was informed by the testimony it had heard in the first trial, ruled in favor of the prosecution, allowing it to present evidence "as to the termination, the nature of that termination, and the [subsequent worker's] compensation claim" alleging stress-related injury. The court "f[ou]nd that the testimony related to the termination and the issue of stress is both relevant and probative as to any motive and [to] credibility," and the "probative value of that evidence substantially outweighs any prejudicial effect."

Based on the trial court's ruling, Robert Williams, an employee of Dollar Tree who handled theft investigations, testified at trial as to the circumstances of Ellison's termination. Williams testified that during Ellison's employment at the Murphy Canyon Dollar Tree store, the store experienced "various cash shortages . . . within the safe" and had "deposits missing." Williams's subsequent investigation of the cash shortfalls gradually began to focus on Ellison when Williams discovered that: (i) Ellison was violating store policy by refusing to "count the safe" with the other assistant manager upon her arrival at the store; (ii) deposit logs initialed by Ellison were purportedly countersigned by another employee but the initials of that employee did not match her handwriting; (iii) Ellison manually altered his time card to indicate he was at the store when he was absent; and (iv) money was missing from the safe on a day when Ellison worked alone. As an assistant manager at the store, Ellison was aware of the investigation.^[4] Williams asked a district manager to contact Ellison to schedule an interview about his suspicions and set a date, May 19, to meet. Ellison did not attend the meeting, however, and a day before it was scheduled Ellison filed a worker's compensation disability claim due to stress. Dollar Tree suspended Ellison on May 20, and a week later, on June 1st, fired him.

B. Analysis

Ellison contends that the evidence of the circumstances of his termination four weeks prior to the robbery should have been excluded because it was irrelevant (Evid. Code,  350), and any probative value of the evidence was "substantially outweighed by the . . . danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code,  352.)

Only relevant evidence is admissible at trial. (Evid. Code,  350.) Relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code,  210.) In addition, even where evidence is relevant, the trial court "may exclude [that] evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing issues, or of misleading the jury." (Evid. Code,  352.) In determining the relevance of evidence and whether it should be excluded as unduly prejudicial, confusing or misleading, the trial court is vested with broad discretion, and its rulings will be reversed on appeal only where an abuse of that discretion is demonstrated. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Jordon (1986) 42 Cal.3d 308, 316.)

Applying the above standard, we conclude that the trial court did not abuse its discretion by admitting evidence concerning Ellison's termination from Dollar Tree. The evidence that Dollar Tree had investigated Ellison leading to his termination four weeks prior to the robbery, and the circumstances of that investigation, was relevant and of significant probative value to the prosecutor's theory of the case. The evidence supported the prosecutor's contention (in closing argument) that Ellison had "animosity toward Dollar Tree" and, therefore, a motive to "get those bastards back" after he was targeted (fairly or unfairly) for investigation by Dollar Tree and subsequently fired. Based on this evidence, the prosecutor could permissibly argue that it was no coincidence that, four weeks later, the Dollar Tree store where Ellison had worked was robbed by someone with inside knowledge of Dollar Tree's operations. (People v. Crittenden (1994) 9 Cal.4th 83, 134.) In short, the evidence Ellison challenges on appeal had a "tendency in reason" to establish a motive for Ellison to rob the store and thus we cannot conclude that the trial court abused its discretion in concluding that the evidence was relevant. (Evid. Code,  210; People v. Harris, supra, 37 Cal.4th at p. 337.)^[5]

We also do not believe the trial court abused its discretion in concluding that the probative value of the evidence (as discussed above) was not substantially outweighed by the potential for undue prejudice. (Evid. Code,  352.) Clearly the evidence was harmful to Ellison's case because it suggested that he had a motive for the charged crime. Nevertheless, " '[t]he prejudice which . . . Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) Undue prejudice comes from evidence "that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." (Ibid.)

Ellison asserts that there was a potential for unfair prejudice inherent in the evidence because: (i) the evidence suggested that Ellison robbed Dollar Tree because he was unemployed and needed money, and evidence of poverty is generally inadmissible to suggest a motive for a property crime; and (ii) the evidence could have been used by the jury to support an inference of a criminal propensity that Ellison "stole from the store as an employee" and so must have "stole from it again" in the instant robbery.

Evidence of poverty is generally inadmissible to establish motive. (People v. Koontz (2002) 27 Cal.4th 1041, 1076.) The evidence regarding Ellison's termination in the instant case, however, was not admitted to suggest that Ellison was unemployed and needed money. In fact, Ellison testified that his wife was employed when he was fired, and that he procured employment shortly after his termination. Instead, the evidence was admitted because the particular circumstances of his termination could support a permissible inference that he had a motive animosity toward his former employer to rob the Dollar Tree store. Consequently, the case law cited and assertions made by Ellison regarding the prohibition of evidence of poverty to suggest a motive for a theft-related crime is inapposite, and the contention that the evidence was unfairly prejudicial in this respect, unconvincing.

We do agree that the second contention made by Ellison is valid there was some danger of unfair prejudice inherent in the evidence as the jury could have improperly inferred a criminal propensity (e.g., if Ellison was a thief while employed, he was also likely to be a robber after his termination).^[6] (See People v. Holt (1984) 37 Cal.3d 436, 450 [" 'evidence that involves crimes other than those for which a defendant is being tried has a "highly inflammatory and prejudicial effect" ' "].) This potential for unfair prejudice, however, does not end the inquiry. The question for the trial court was whether this potential for unfair prejudice "substantially outweighed" the probative value of the evidence. (Evid. Code,  352.) As we have noted, the evidence had strong probative value in supplying a motive for the offense. Thus, while we recognize that there was some potential for unfair prejudice, we cannot conclude on this record that the trial court abused its discretion in concluding that this potential did not substantially outweigh the evidence's probative value. (Ibid.) Consequently, we reject Ellison's contention that reversal is required on this ground.^[7]

II

The Trial Court Did Not Abuse Its Discretion by Limiting the Testimony of the Defense's Expert Witnesses

Pursuant to a motion brought by the prosecution, the trial court restricted the defense eyewitness identification expert's testimony, prohibiting him from testifying with respect to erroneous eyewitness identifications in other criminal cases. Ellison contends that "[e]xclusion of evidence offered in [his] defense violated the Sixth and Fourteenth Amendments of the United States Constitution." We address this claim after setting forth the pertinent procedural history.

A. Procedural History

Prior to the second trial, the prosecution filed an in limine motion seeking to limit the testimony of Dr. Thomas MacSpeiden, a clinical psychologist whose testimony the defense intended to offer regarding the (un)reliability of eyewitness identifications. Specifically, the prosecution asked that the trial court prohibit the defense expert from making any "reference to specific cases or instances of misidentification in criminal cases." After a lengthy colloquy with counsel regarding the request, the court ruled that: "there should not be any references to specific cases or instances of misidentification in prior criminal cases"; that the expert could not testify about "erroneous conviction rates" or a study of DNA exonerations, which concluded that in 90 percent of the cases studied the conviction was the result of mistaken identification testimony; and that the defense expert could not show the jury a chart demonstrating the difficulties in identifying a real Lincoln head penny among 15 similar facsimiles of the penny.^[8]

The defense expert, MacSpeiden, testified at trial. He identified a number of factors that could potentially undermine an eyewitness identification including, of particular relevance to the instant case, "weapon focus" where a witness in the presence of a weapon will unconsciously focus on the weapon as opposed to the face of the person holding it; and the potential for overwhelming stress (as would be indicated by a person voiding their bladder) to hinder a witness's ability to accurately perceive an event. Under cross-examination, however, MacSpeiden acknowledged that the problems inherent in eyewitness identifications were less significant when eyewitnesses identified "a familiar face." The prosecution presented a rebuttal witness, Ebbe Bruce Ebbesen, a professor of psychology, who disputed many of the critiques of eyewitness reliability offered by MacSpeiden.

B. Analysis

Ellison contends that the trial court erred in limiting MacSpeiden's testimony, particularly with respect to the expert's reference to studies demonstrating the existence of erroneous eyewitness identifications in actual criminal cases. This evidence of " 'real life' studies," Ellison contends, "was more relevant than any other testimony Dr. MacSpeiden had to offer" and had significantly more probative value than the controlled experiments outside of a criminal justice setting that MacSpeiden was allowed to describe. Ellison concludes, "[I]t is grotesquely unfair to prevent jurors from understanding the documented problems with eyewitness testimony that has resulted in numerous wrongful convictions."

Our Supreme Court has confronted the complex issue of expert eyewitness identification testimony on multiple occasions. In the leading case on the question and the case relied on by Ellison for his contentions, People v. McDonald (1984) 37 Cal.3d 351 (McDonald), the high court held that a trial court abused its discretion in excluding "in wholesale fashion" the entirety of a defense expert's testimony. (Id. at p. 372.) The court added a strong caveat to its ruling, however. The court emphasized that "the decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion." The court explained:

"We expect that such evidence will not often be needed, and in the usual case the appellate court will continue to defer to the trial court's discretion in this matter. Yet deference is not abdication. 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." (McDonald, supra, 37 Cal.3d at p. 377, fn. omitted.)

The court later applied the caveat noted in McDonald in People v. Sanders (1995) 11 Cal.4th 475 (Sanders), where it held that the trial court did not abuse its discretion by excluding testimony offered by a defense eyewitness identification expert. The court reiterated that the general rule is to grant trial courts great deference in their rulings regarding expert witnesses, and this general rule controlled where "by contrast" to the situation in McDonald: (i) "the eyewitness testimony [in Sanders] was strong and unequivocal"; (ii) the crime occurred in a lighted building; (iii) "the witnesses were in close proximity to the perpetrators"; and (iv) "the eyewitness testimony was not the only evidence linking the defendant to the crime." (Sanders, at p. 509.)

The instant case presents a scenario that is much closer to Sanders than McDonald. Consequently, like our Supreme Court in Sanders, we believe the appropriate course is to follow the general rule of deferring to the trial court's assessment of the value of the expert testimony to the trier of fact. (Sanders, supra, 11 Cal.4th at p. 510; McDonald, supra, 37 Cal.3d at p. 377 [stating that "in the usual case the appellate court will continue to defer to the trial court's discretion in this matter"].) Here, as in Sanders (and unlike McDonald), the four eyewitnesses who identified Ellison were "strong and unequivocal" in their identifications. (Sanders, at p. 509; McDonald, at pp. 375-376.) Further, unlike both McDonald and Sanders, at least two of the eyewitnesses were acquainted with Ellison prior to the crime.^[9] As the defense expert acknowledged, this is a critical factor in assessing eyewitness accuracy that significantly undermined the applicability of the scientific criticisms of stranger identification testimony. In addition, whereas in McDonald "no other evidence connected [the] defendant with the crime" (McDonald, supra, 37 Cal.3d at p. 375), here, as in Sanders, there was substantial corroboration of the eyewitness identifications. (See Sanders, supra, 11 Cal.4th at pp. 509-510; People v. Jones (2003) 30 Cal.4th 1084, 1112 [holding that trial court did not abuse its discretion in excluding eyewitness expert where eyewitness identification was "substantially corroborate[d]" by other evidence].) Four separate witnesses identified Ellison; Ellison had been terminated from the store just four weeks prior to the robbery under strained circumstances; the perpetrator appeared to be a former employee, familiar with the store's security systems; and Ellison's car matched the car used in the burglary.

Finally, whereas in McDonald (and Sanders) the trial court excluded the defense expert's testimony in its entirety, here, the trial court placed only minor restrictions on the expert testimony. (McDonald, supra, 37 Cal.3d at p. 372 [emphasizing that such evidence "cannot be excluded in wholesale fashion"]; Sanders, supra, 11 Cal.4th at p. 508 [affirming, despite exclusion of all defense expert testimony on eyewitness identifications].) The defense expert was permitted to, and did, testify as to the full panoply of "psychological factors affecting eyewitness identification" the absence of which required reversal in McDonald with particular emphasis on the factors potentially present in the instant case: "weapons focus" and extreme stress. (McDonald, at p. 377.) MacSpeiden's testimony was limited by the trial court only in that he could not reference a handful of studies that analyzed actual criminal cases to support his opinion, or use a chart to illustrate one particular experimental study. Consequently, while one might quibble with the precise limitations placed on MacSpeiden's testimony by the trial court, the controlling case law dictates the conclusion in light of the strong eyewitness testimony and substantial corroborative evidence that the trial court did not abuse its discretion in limiting the expert's testimony.^[10] (Sanders, supra, 11 Cal.4th at p. 509; People v. Jones, supra, 30 Cal.4th at p. 1112 [holding that trial court did not abuse its discretion in excluding eyewitness expert where eyewitness identification was "substantially corroborate[d]" by other evidence]; People v. Goodwillie (2007) 147 Cal.App.4th 695, 725-726 [trial court did not abuse its discretion in excluding defense expert on eyewitness identifications where four other witnesses identified defendant, and other evidence in the case corroborated the eyewitness testimony].)

Further, even were we to conclude that the trial court did abuse its discretion in limiting the defense expert's testimony, reversal would not be warranted because "it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the" error. (Sanders, supra, 11 Cal.4th at p. 510.) As we have already noted, the value of MacSpeiden's testimony to the defense was significantly undermined by the fact that, while the identification studies he referenced for his opinions primarily critiqued stranger identifications, at least two of the victims in the instant case were previously acquainted with Ellison. MacSpeiden himself recognized (in testimony highlighted by the prosecutor in closing argument) that identification of an acquaintance as opposed to a stranger was "a whole different ballgame" because "[t]he human capacity for recognition" of a previously viewed face "is phenomenal," and had been shown to be 98 percent accurate or even higher "if we were talking about familiar faces" such as "a coworker." In the instant case, then, because two of the eyewitnesses were previously acquainted with Ellison, there was little likelihood that MacSpeiden's testimony would have undermined their strong positive identifications of Ellison. Consequently, any detraction from the persuasiveness of MacSpeiden's opinion that generally resulted from the trial court's ruling could have had only minimal influence on the jury's overall evaluation on the eyewitness testimony.

Any prejudice from the trial court's ruling was also mitigated by the fact that the ruling did little to prevent the defense from strongly contesting the reliability of the eyewitness identifications to the jury. The issue was squarely joined by the bulk of the defense expert's testimony; Ellison's counsel's cross-examination of the witnesses and closing argument; and the jury's instructions, which included CALCRIM No. 315  an instruction specifically tailored to highlight the issue of potential weaknesses (or strengths) in eyewitness testimony. (See Sanders, supra, 11 Cal.4th at p. 510 [relying on these factors to find exclusion of defense expert testimony harmless].) Consequently, in light of the factors discussed above, even if the trial court had erred in limiting the defense expert's testimony, we could not conclude that the error was sufficiently prejudicial to warrant reversal. (Ibid.)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

^[1] Statutory references are to the Penal Code unless otherwise stated.

^[2] Cordova testified that the mistake was inadvertent, but that if the code was entered improperly three or four times, the safe would shut down. Cordova also testified that he had not mentioned anything to the robbers about how the safe opened (e.g., by the entry of a code) or where it was located in the store. Ellison acknowledged in his testimony that he was aware that opening the safe required hitting pound after entering the code.

^[3] Ellison's first trial ended in a hung jury.

^[4] Ellison acknowledged in his testimony that he was made aware of the investigation and that it caused him great stress because "[n]o matter what steps we took to ensure that nothing would come up missing," the corporate office always thought money was missing.

^[5] The evidence also became relevant to impeach Ellison's credibility when Ellison took the witness stand and, thus, made his credibility a fact "of consequence to the determination of the action." (Evid. Code,  210.) While Evidence Code section 787 prohibits "evidence of specific instances of [a witness's] conduct" introduced "to attack or support the credibility of a witness," this provision was superseded by article I, section 28, subdivision (d) of the California Constitution and thus has no applicability in criminal proceedings. (In re Freeman (2006) 38 Cal.4th 630, 640, fn. 5.)

^[6] Ellison does not cite any portion of the record (and we have found none) where the prosecutor suggested such an inference to the jury. We also note that the evidence did not establish that Ellison had, indeed, stolen from the store while employed there. Williams testified that the entire management staff was under investigation, and that Ellison was ultimately not terminated for theft, but rather "for time clock violations . . . and not complying with [store] policies." Ellison testified that he repeatedly asked that he not be required to handle money since it was not supposed to be part of his job description, and that the money shortages predated his employment at Dollar Tree.

^[7] Having determined that the trial court did not abuse its discretion by admitting the evidence, we also reject, for the same reasons, the conclusory claim that admission of the evidence violated Ellison's constitutional due process and fair trial rights. It is well settled that a trial court's proper application of the "ordinary rules of evidence" does not, except in unusual circumstances, amount to a constitutional violation. (People v. Hall (1986) 41 Cal.3d 826, 834; People v. Catlin (2001) 26 Cal.4th 81, 133, fn. 12.) No such circumstances are present here.

^[8] While Ellison also asserts that "the trial court . . . excluded any mention of the experimental studies that also demonstrated problems with perception and recall," no such ruling appears in the trial record, and Ellison's citations are solely to the ruling regarding the penny chart. The court did express disfavor for any "live experiment[s]" in court testing the jurors ability to perceive and recall information, although the defense did not request the opportunity to perform such an experiment, and the trial court made no explicit ruling as to whether it could do so.

^[9] Cordova and Sanders testified to being acquainted with Ellison, having seen him on numerous prior occasions leading up to the robbery; Ellison acknowledged in his own testimony that he had met Cordova "several times" in the course of his employment, and would see Sanders "frequently" when he used to go to the McDonald's on breaks from Dollar Tree. While Wilson testified that she had seen Ellison on three prior occasions without ever being introduced to him, Ellison testified that he had, in fact, introduced himself to Wilson on one of his visits to the store.

^[10] While Ellison contends that the trial court's error was of a constitutional dimension, where, as here, the trial court did not abuse its discretion in limiting expert testimony and thus "there was no error," the "constitutional claims also fail." (People v. Sanders, supra, 11 Cal.4th at p. 510, fn. 3; People v. Hall, supra, 41 Cal.3d at p. 834 [trial court's proper application of the "ordinary rules of evidence" will not, except in unusual circumstances, amount to a constitutional violation].)