Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD204218, John S. Einhorn, Judge.
HALLER, J.
Sapheap Chhoeur appeals from a judgment convicting him of battery (count 1), and assault by means of force likely to produce great bodily injury, with a finding that he personally inflicted great bodily injury (count 2). He contends the evidence is insufficient to support the jury verdict. He also asserts the judgment must be reversed because the trial court improperly limited a defense expert's testimony on the issue of eyewitness misidentification. We reject his arguments and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At about 12:50 a.m. on January 13, 2007, Robert Catalano was attacked and injured at a club in downtown San Diego. Chhoeur and Phornpraseut Soukhavong were charged with the offense. As we shall detail below, Catalano and club employee Jose Sotelo identified Chhoeur (who is Asian and who had a bald-shaven head) as one assailant, and Soukhavong (who is Asian and who had spiky-styled hair) as the other assailant. At trial, the defense presented the testimony of another Asian man (Thai Lam) who was at the club on the night of the assault and who also had a spiky hairstyle. Lam testified that he was the person who attacked Catalano and inflicted the injuries. The jury convicted Chhoeur but not Soukhavong. Chhoeur contends the record does not support that he was one of the assailants or that he committed aggravated assault and personally inflicted great bodily injury. To review these contentions, we summarize the evidence concerning identification of the attackers and the injuries inflicted on Catalano.
Catalano was at the club with his friend Tyson Fok. While at the club, Catalano noticed an Asian man with a spiky hairstyle. Commenting to Fok that he wondered how the male got his hair to look like that, Catalano touched the man's hair. The man, whose back was to Catalano, turned around in anger and verbally confronted Catalano. Catalano told the man to relax and stated that he "didn't mean to do it." The man called Catalano a name and then walked away. Catalano also turned and walked away.
About 20 seconds after Catalano had walked away, someone came up from behind him and pushed or shouldered him, causing him to spill his drink. Catalano turned around and said "what the fuck." There were three males standing there. Two of the males appeared angry and were swearing at him. The two angry males were Asian; one was bald-shaven and one had a spiky hairstyle.
Catalano and the two angry men continued to exchange curses. Suddenly, Catalano saw a glass object "coming towards [his] mouth" that hit him in the mouth. He was not sure which of the two men hit him with the glass object. However, Catalano had the impression that the spiky-haired man was the person who delivered the blow with the glass object.
The blow with the glass object caused Catalano to fall to his knees. After he fell, Catalano could see the two males above him "taking turns" hitting him in the face. He saw the bald-shaven man hit him by his right "eye orbit," and the spiky-haired man hit him in the right area of his forehead. Although he could not see if either or both of the men were holding something, he felt and heard the glass object hit and break on his forehead. After he was hit in the forehead, he could not see who was hitting him because there was "glass, alcohol, [and] blood." He then felt a hit on his nose. He was not sure if a glass object was used for this last hit, and he thought that this hit to his nose might have been a punch with a fist. While the attack was occurring, Catalano was trying to get up off his knees, and he did not have the opportunity to punch back.
Sotelo, who was working at the club clearing tables, saw an Asian man with a shaven head and an Asian man with a spiky hairstyle attack Catalano. Sotelo noticed people arguing, and saw the bald-shaven man punch Catalano with his hand, causing Catalano to fall to the floor. The bald-shaven man then began walking away, and the spiky-haired man grabbed a beer bottle and hit Catalano with the bottle. When Sotelo saw the person hit Catalano with the bottle, Sotelo ran to alert a security guard at the door who was about eight feet away. The security guard at the door (who was required to stay at his post) summoned other security guards. Sotelo then returned to the fight scene. Sotelo noticed the spiky-haired person was moving away. Sotelo grabbed and held the spiky-haired person until the security guards arrived.
After the altercation, the club's security guards detained Soukhavong inside the club at the scene of the fight and detained Chhoeur outside the club where he was standing with friends. Chhoeur and Soukhavong (plus a third individual) were brought to the club's security office where they were identified by Catalano and Sotelo. Both Catalano and Sotelo identified Chhoeur as the bald-shaven man who punched Catalano and Soukhavong as the spiky-haired man who hit him with the bottle.
Catalano and Sotelo did not identify the third individual (Chris Khoungnavong) who was detained at the security office. Catalano stated he was not sure he had been hit by a third person and he did not remember what the third person (standing with the two angry men) looked like. He stated that during the assault he was focused on Chhoeur and Soukhavong who were standing close to him and "in [his] face," whereas the third person was standing a bit behind them.
When first interviewed by the police, Catalano described Chhoeur as "black," whereas he is Asian. When Catalano was shown the three suspects at the club and identified Chhoeur, he recognized that Chhoeur was not Black and explained that in the dim lighting of the bar Chhoeur looked "tanner" than he actually was.
Although the light in the club was "dim," Catalano stated he was able to see people. When Catalano and Sotelo identified Chhoeur at the security office, Chhoeur was wearing a white tank top but no shirt. The club did not allow people to enter without a shirt. To support the theory that Chhoeur removed his shirt because it had blood on it, the prosecution presented evidence showing that Chhoeur was wearing a shirt before the fight took place.
Sotelo was about six or eight feet away when he saw Chhoeur punch Catalano, and about two or three feet away when he saw Soukhavong hit Catalano with the bottle. Sotelo stated people had moved to the side when the first punch was thrown and he had a clear view. However, Sotelo's identification of Soukhavong was contradicted by a later statement by Sotelo identifying Lam as the spiky-haired assailant. During the defense investigation of the case Sotelo was shown a copy of a driver's license picture of Lam. When viewing this picture, Sotelo identified Lam as the assailant who used the bottle.
At trial, Catalano and Sotelo again identified Chhoeur and Soukhavong as the two assailants. Catalano stated he was 100 percent sure of his identification. However, Catalano stated he did not know if the spiky-haired man who attacked him was the same person as the man whose hair he touched. He explained that he had only a brief encounter with the man whose hair he touched, and he did not pay attention to that man's appearance.
Catalano's injuries included broken teeth, a cut to his lip, a cracked jaw, a fractured eye orbit, a split forehead, and a broken nose. Three of his teeth had to be repaired with caps and veneer. He required approximately 20 stitches to repair the cut to his lip. He assumed that the injuries to his teeth, lip and jaw were caused by the first blow with the glass object because he did not remember getting hit in the mouth again. His forehead injury required the removal of glass and seven or eight stitches. After an unsuccessful attempt at the hospital to straighten his nose, a plastic surgeon had to rebreak it and set it. He received medical treatment for about two and one-half months.
Defense Evidence
Lam was called as a witness by Soukhavong. Lam, who testified over the objection of his attorney, was acquainted with Chhoeur and Soukhavong and had been socializing with them at the club on the night of the incident. Lam, like Soukhavong, is an Asian man who wore his hair in a spiky style. Lam testified that he was the individual whose hair Catalano touched. Lam stated that Catalano grabbed and yanked his hair, and, responding to this, he turned around and asked Catalano "why the hell" he pulled his hair. Catalano said, "Fuck you. Want to take it outside?" The men continued to exchange words, and Lam felt afraid because it was obvious Catalano wanted to fight him. Lam stated he hit Catalano in the eye with his fist and Catalano fell down. As Catalano started to get up, Lam felt he was going to get his "butt kicked." Lam grabbed a beer bottle and used it to strike Catalano in the forehead, causing the bottle to break. As people started to crowd around, Lam went outside. He was not detained by the authorities. He testified his motive for testifying was to "do[] the right thing."
Testifying on his own behalf, Soukhavong denied that he struck Catalano with a beer bottle. Soukhavong stated that while he was at the club he heard a commotion, like people scuffling. About 10 to 15 feet away he saw a friend, Linda Huynh, falling to the ground. Soukhavong walked through the crowd towards Huynh. Soukhavong saw Chhoeur pushing people out of the way and running towards Huynh. Chhoeur tried to pick Huynh up, but Catalano hit Chhoeur in the face. Chhoeur swung back at Catalano but Catalano leaned back and avoided the punch. Catalano then lunged at Soukhavong with his fist and Soukhavong stepped back. Soukhavong, feeling afraid he was going to get hurt, swung back at Catalano but did not know if he hit him. After Soukhavong swung at Catalano, Catalano disappeared into the crowd. Soukhavong was then detained by Sotelo and the security guards.
Four of Chhoeur's and Soukhavong's female friends or acquaintances, including Huynh, testified in support of the defense version of the events. Jacqueline Lin and Kim Phan stated that they saw Lam punch Catalano and/or hit Catalano with a bottle; they did not see anyone else participate in the fight; and they saw Chhoeur assisting Huynh after she fell to the floor. Huynh testified that she saw Lam and Catalano engage in a verbal altercation; she saw someone (who she thinks was Catalano) throw a punch; she was knocked to the floor during the commotion; and Chhoeur assisted her up and took her outside where Chhoeur stayed until he was detained by the security guards. Jessica Larsen testified that she saw a scuffle and a girl on the floor; Chhoeur ran over and tried to help the girl up; Catalano hit Chhoeur in the face; Chhoeur swung back at Catalano but missed; and Chhoeur continued to assist the girl and then exited the club. After these observations, Larsen heard the sound of glass breaking but did not see what occurred.
Jury Verdict and Sentence
The jury convicted Chhoeur of (1) count 1 battery (Pen. Code, § 242, as a lesser included offense of battery with infliction of serious bodily injury), and (2) count 2 assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), with a finding that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The jury acquitted Soukhavong of the offenses as charged in the information, and deadlocked on the lesser included offense of simple assault.
Subsequent statutory references are to the Penal Code unless otherwise specified.
Chhoeur was initially charged with assault with a deadly weapon and assault by means of force likely to produce great bodily injury, but at trial the prosecutor elected to present the jury solely with the theory of assault by means of force likely to produce great bodily injury. At trial the prosecutor also sought to amend the information to add a personal use of a deadly weapon enhancement for Chhoeur. The trial court declined this enhancement request, ruling the evidence was insufficient as a matter of law to show Chhoeur personally used a bottle during the attack.
The trial court denied Chhoeur's motion for new trial based on his claim that the verdict was not supported by the evidence. The court stated that although it would not have been surprised if the jury had found insufficient evidence to convict Chhoeur, the identification evidence provided from two witnesses who were independent of each other (Catalano and Sotelo) was "certainly sufficient" to support the guilty verdict. At sentencing, the trial court granted Chhoeur probation, requiring that he serve 365 days in jail as a condition of probation.
DISCUSSION
I. Sufficiency of the Evidence
In evaluating a challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (Ibid.) If the circumstances reasonably justify the trier of fact's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (Id. at p. 1054.) Resolution of evidentiary conflicts and inconsistencies is the exclusive province of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Likewise, it is the exclusive province of the trier of fact to determine the credibility of a witness, and we defer to the trier of fact's credibility resolutions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Unless testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction, and a jury may accept a witness's testimony in whole or in part. (People v. Young, supra, at p. 1181; In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
The record supports the jury's finding that Chhoeur was one of the assailants. The jury was entitled to credit Catalano's and Sotelo's testimony that Chhoeur was the bald-shaven man who participated in the assault. As noted by the trial court, Catalano and Sotelo each independently identified Chhoeur. Although the lighting was dim at the club, the testimony of numerous witnesses (including defense witnesses) reflected that they could see faces or recognize people. There is nothing in the record indicating that Catalano's and Sotelo's identification testimony was inherently improbable or physically impossible. Absent such impossibility or improbability, it was up to the jury to decide whether their identifications were sufficiently reliable to identify Chhoeur beyond a reasonable doubt. The jury could consider that the close proximity between Catalano and his assailants and the distinctive characteristic of Chhoeur's bald-shaven head lent particular support to the accuracy of Catalano's identification of Chhoeur. Although defense witnesses testified they did not see Chhoeur hit Catalano, the jury was not required to credit these witnesses' observations. Additionally, two of the defense witnesses (Soukhavong and Larsen) described Chhoeur as participating in the melee, including swinging at Catalano, albeit as a defensive measure and without actually touching Catalano. Faced with the conflicting observations of what occurred, it was the jury's task to sort out the manner in which Chhoeur participated in the altercation, and it could reasonably conclude he was an assailant as described by the prosecution witnesses.
Distinct from the simple battery conviction, Chhoeur challenges the sufficiency of the evidence to support the count 2 assault by means of force likely to produce great bodily injury with a finding of personal infliction of great bodily injury. He contends the record shows that the great bodily injury was caused by the beer bottle used by the spiky-haired assailant, and thus these injuries must be attributed to this second assailant, not to him. The contention is unavailing. Assuming Chhoeur did not use the bottle, the record supports that he punched the victim with force likely to cause great bodily injury and that he personally inflicted great bodily injury.
Catalano testified that he saw the bald-shaven man punch him by his eye orbit, and that his eye orbit was fractured. Great bodily injury is physical injury which is significant or substantial, not insignificant, trivial or moderate. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; § 12022.7, subd. (f).) Its existence is a question of fact for the jury. (People v. Escobar (1992) 3 Cal.4th 740, 750.) The jury could reasonably conclude that a fractured eye orbit constitutes significant injury, thus supporting a finding that Chhoeur used force likely to cause great bodily injury and that he personally inflicted great bodily injury.
Further, because Catalano was unable to determine which of the two assailants gave him the broken nose, the jury was authorized to render a personal infliction of great bodily injury finding against Chhoeur under the group beating principles applicable to this enhancement. When it is unclear which of multiple assailants actually caused the great bodily injury, the group beating principles allow imposition of the enhancement on the assailants who used force that was substantial enough, either alone or in combination, to have caused the injury. (People v. Modiri (2006) 39 Cal.4th 481, 486, 494, 496-497.) Catalano testified that the two assailants were "taking turns" hitting his face; he was unable to identify which assailant hit his nose because his vision was obscured after the bottle broke on his forehead; and the nose hit might have been inflicted with a fist rather than a glass object. Given the evidence showing Chhoeur was punching Catalano's face, and given that punching can cause a broken nose, the group beating principles are applicable to this injury and provide further support for the jury's finding that Chhoeur personally inflicted great bodily injury.
The jury was instructed regarding the group beating principles. (See CALCRIM No. 3160.)
We note that Sotelo testified that he saw Chhoeur begin to walk away after he punched Catalano, and he then saw the spiky-haired man hit Catalano with the bottle. However, Catalano testified that after he was hit by the bottle the first time and fell down, he saw the men "taking turns" hitting him and that they "repeatedly" hit him. The jury was entitled to credit Catalano's observations and to infer that Chhoeur was still participating in the assault at the time of the nose hit.
In his briefing on appeal, Chhoeur states that Catalano testified his nose injury was caused by the glass object. This is not supported by the record. Catalano stated that he believed the glass object used during the first hit injured his teeth, lip and jaw; he also testified the glass object was used when his forehead was hit. However, he testified he did not know if the last hit he felt (which was to his nose) was from a glass object, and it was possible that this last hit was a punch from a fist. As stated, the jury could properly find that Chhoeur was responsible for the nose injury because he was one of multiple assailants engaging in assaultive conduct that could have caused the nose injury. Thus, the jury's findings of assault by means of force likely to produce great bodily injury and personal infliction of great bodily injury are supported by both the fractured eye orbit and the broken nose.
To support his challenge to the sufficiency of the evidence for count 2, Chhoeur notes that when he was examined by a police officer at the scene, the officer did not observe any injuries to his hands. This fact does not defeat the jury's verdict. Chhoeur has not cited any evidence showing that it is impossible to punch a person and inflict great bodily injury without sustaining injury to the assailant's hand. Absent such impossibility, the jury was not required to find Chhoeur did not inflict one or more forceful punches during the attack merely because the officer did not observe any injuries to his hands.
II. Limitation on Expert Testimony
The defense presented the testimony of an expert witness (Dr. Scott Fraser) who described factors that can affect the reliability of eyewitness identifications. Chhoeur argues the trial court abused its discretion and violated his due process rights when it limited the matters that Dr. Fraser could address in his testimony.
Prior to trial, the court ruled that Dr. Fraser could testify regarding factors that can cause eyewitness misidentifications. However, the court ruled he could not give opinions on the reliability of a particular witness's identification in the case because this was a matter for the jury to decide and under California law was not the proper subject of expert opinion testimony. Based on this ruling, the court stated the defense could ask generic hypothetical questions concerning factors that affect eyewitness reliability, but that it could not ask hypothetical questions that sought opinions on reliability based on the particular facts of the case, because the latter would in effect elicit opinions on the reliability of a particular witness's identification.
In addition to testimony from Dr. Fraser concerning factors that affect eyewitness identification reliability, during the pretrial hearing the defense proffered testimony regarding illumination studies that Dr. Fraser had conducted at the club—i.e., testimony regarding how well the club was lit and how the lighting impacted how far a witness would be able to see. The trial court ruled the defense could present testimony from eyewitnesses describing the lighting at the time of the incident and how far they could see, but that Dr. Fraser would not be permitted to address the specific lighting that he observed at the club. The court explained that describing the lighting level and how far a person could see was part of "normal life experiences that we all have in comparing light at different occasions as we go through the day." The court stated that Dr. Fraser could testify about his studies in general about lighting and people's ability to see in different types of lighting, but that he could not describe his observations when he went to the club.
At trial, Dr. Fraser testified at length regarding factors that could affect eyewitness perception and memory. He explained in detail the effect of such factors as consumption of alcohol, dim lighting, objects obstructing the direct line of vision, divided attention to other tasks or goals, misattribution of a bystander's distinctive characteristic to a main character, suggestive field show-ups, cross-racial identifications, and the carry-over effect of previous identifications.
To be admissible, expert opinion testimony must be "[r]elated to a subject that is sufficiently beyond common experience" so that the opinion "would assist the trier of fact." (Evid. Code, § 801, subd. (a).) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission; even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. (People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) If expert opinion evidence addresses a matter sufficiently beyond common experience that it would assist the jury, it is admissible even if it encompasses an ultimate issue in the case. (People v. McDonald, supra, at p. 371; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 805.) However, expert opinion testimony is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the expert. (People v. Torres (1995) 33 Cal.App.4th 37, 45.)
The courts recognize that the area of expert opinion is not subject to hard and fast rules, and the fact that a particular aspect of an expert's opinion is admitted in one case does not necessarily mean it must be admitted in another case. (People v. Smith (2003) 30 Cal.4th 581, 627; People v. Wilson (1944) 25 Cal.2d 341, 349.) "The circumstances in which evidence is offered and its exact nature, and the exercise of the trial court's discretion, can vary from case to case." (People v. Smith, supra, at p. 627.) Generally, the trial court should admit expert opinion testimony if it refers to matters requiring some expertise, and it should exclude opinion testimony that merely addresses matters the jury can fully understand and judge for itself. (See People v. Wilson, supra, at p. 349; People v. Smith, supra, at p.628.) On appeal, we apply the abuse of discretion standard to review a trial court's admission or exclusion of expert opinion testimony. (People v. Smith, at p. 627.)
Chhoeur challenges the trial court's exclusion of hypothetical questions and opinion testimony based on the particular facts and witnesses in this case, asserting the trial court erroneously concluded that California law prohibited expert opinion on an ultimate issue of fact in the case. When rendering its ruling, the trial court stated that the reliability of a particular witness's identification was for the jury to decide and that under California law the expert could not render an opinion on this point. This statement may have been derived from the trial court's assessment that jurors did not need expert assistance to evaluate the reliability of a particular witness's identification. The trial court did not state that the expert opinion was inadmissible because it was an ultimate issue in the case. Absent an express statement to the contrary, we presume the trial court understood and properly applied California law. (People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)
Accordingly, the issue is whether the trial court reasonably exercised its discretion when determining the jury did not need expert testimony regarding the particular circumstances of the case and the reliability of a particular witness's identification. Chhoeur contends Dr. Fraser should have been permitted to answer hypothetical questions based on the particular facts of the case because he could assist the jury by "identify[ing] and quantify[ing]" each of the various factors that affected the accuracy of a witness's identification. We are not persuaded.
Generally, when eyewitness identification is a key element of the prosecution's case and is not substantially corroborated by evidence giving it independent reliability, a trial court is required to admit expert testimony on relevant psychological factors shown by the record that could affect identification accuracy but that are not likely to be fully known or understood by the jury. (People v. McDonald, supra, 37 Cal.3d at p. 377; People v. Jones (2003) 30 Cal.4th 1084, 1112.) Consistent with this directive, the trial court permitted Dr. Fraser to testify at length regarding various factors that can affect identification, including factors that were relevant to the particular circumstances of the case (i.e., consumption of alcohol, dim lighting, divided attention at the scene, etc.). Further, the eyewitnesses were examined at trial concerning these various factors at the time of the offense, including the quantity of alcohol consumed, the lighting and other conditions at the club, and the circumstances surrounding the identification of the suspects at the club. The trial court could reasonably conclude that once the jury was provided the expert testimony concerning the relevant factors that can affect reliability, it did not need expert assistance to evaluate the eyewitness testimony and decide whether any of these factors existed in this case and the extent to which they may have detracted from the reliability of a particular witness's identification. Chhoeur has not explained why the jury could not, on its own, consider the generic factors and apply them to the particular witnesses' identifications.
The trial court's ruling that the jury did not need expert assistance to apply the generic factors to particular witness identifications is consistent with the McDonald court's analysis concerning the nature of an identification expert's testimony, which focuses on a typical eyewitness's observations rather than the observations of a particular eyewitness in the current case: "The expert testimony... does not seek to take over the jury's task of judging credibility:... it does not tell the jury that any particular witness is or is not truthful or accurate in his identification of the defendant. Rather, it informs the jury of certain factors that may affect such an identification in a typical case; and to the extent that it may refer to the particular circumstances of the identification before the jury, such testimony is limited to explaining the potential effects of those circumstances on the powers of observation and recollection of a typical eyewitness." (People v. McDonald, supra, 37 Cal.3d at pp. 370-371.) Further, although in some cases a trial court may deem it appropriate to allow an expert to directly discuss the circumstances under which the witnesses made their identifications, Chhoeur has not shown that in this case the trial court was required to find this type of testimony would have assisted the jury. (See People v. Page (1991) 2 Cal.App.4th 161, 188 [McDonald does not require expert be permitted to discuss particular identification evidence in case or give opinion on reliability of particular eyewitness testimony].)
Chhoeur also argues Dr. Fraser should have been permitted to express an opinion about the specific lighting conditions at the club and what distances a person would be able to see under these conditions. He asserts that this opinion testimony would have assisted the jury by providing objectively quantifiable information about the effect of the club's lighting conditions on the witnesses' ability to make identifications.
At trial, Dr. Fraser testified in detail about the effect of dim lighting on the ability to accurately perceive. He stated that as light dims it has a strong effect on the ability to detect features and recognize individuals. He explained that as light becomes dimmer, the eyes' "cones" (which detect color and edges) cease to operate. The detection of colors, edges and shadings is critical to accurate person recognition, and this ability is lost as light dims, even long before it gets dark. Further, when light dims the pupils dilate to let more light in, which decreases the distance that the eyes can focus. Thus, for example, objects that can be seen from 15 feet under good light can only be seen from two to three feet in dim light.
Even assuming arguendo the trial court should have permitted Dr. Fraser to describe the lighting he observed at the club and to opine how this might have affected the ability to perceive, we conclude the error does not require reversal under either the harmless beyond a reasonable doubt standard for federal constitutional error or the reasonable probability of a more favorable outcome standard for state law error. (See People v. Tafoya (2007) 42 Cal.4th 147, 174; People v. Sanders (1995) 11 Cal.4th 475, 510.) Dr. Fraser was given a full opportunity to describe the effect that illumination has on a person's ability to perceive. He testified that in dim lighting a person cannot properly recognize features and can only see objects that are within two to three feet of the person. Numerous witnesses described the dim, dark lighting at the club. Thus, even without testimony from Dr. Fraser regarding his observations and opinions about the specific lighting at the club, the jury knew the lighting was dim and knew that in Dr. Fraser's opinion this diminished the ability to recognize people and limited observations beyond two or three feet. Given the information that was provided to the jury, we have no doubt the trial court's limitation on this aspect of Dr. Fraser's testimony did not affect the outcome.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, Acting P. J., AARON, J.