People v. Crowell-Ford CA4/1 ( 2023 )

Filed 8/22/23 P. v. Crowell-Ford 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
THE PEOPLE, D080078
Plaintiff and Respondent,
v. (Super. Ct. No. FSB18001506)
CHRISTIAN CROWELL-FORD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Michael A. Smith, Judge. Affirmed
Gene D. Vorobyov, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson, Marvin E. Mizell, and Arlyn Escalante, Deputy Attorneys General,
for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Christian Crowell-Ford of first degree murder and
found true various firearms enhancements. (Pen. Code,1 §§ 187, subd. (a);
12022.53, subds. (b)-(d).) During his jury trial, evidence was presented that
an eyewitness identified Crowell-Ford as the perpetrator of the murder. The
trial court instructed the jury to consider several factors when assessing the
eyewitness identification testimony, including the “certainty factor” provided
in CALCRIM No. 315. The certainty factor asked the jury to evaluate “how
certain was the witness when he or she made an identification.”
In People v. Lemcke (2021) 11 Cal.5th 644, 647 (Lemcke) our high court
directed trial courts to omit the certainty factor from CALCRIM No. 315 until
the instruction was modified to avoid “juror confusion regarding the
correlation between [eyewitness identification] certainty and accuracy.”
Crowell-Ford’s sole contention on appeal is that the trial court erroneously
included the unmodified certainty factor in CALCRIM No. 315 and in so
doing violated his constitutional rights. He argues that he was prejudiced by
the trial court’s instructional error and asks this court to reverse his
conviction and remand the matter for a new trial. We conclude the
instruction did not violate Crowell-Ford’s constitutional rights when viewed
within the context of the jury instructions and trial record as a whole. We
further conclude that the purported instructional error was harmless, and we
therefore affirm the judgment.
1 All undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
The Evidence at Trial
On the afternoon of April 13, 2018, Crowell-Ford visited his girlfriend,
D.C., at her grandparents’ home. D.C.’s grandparents lived in a mobile home
park that was separated from a nearby field and drainage wash by a six feet
tall retaining wall. D.C.’s grandparents, uncle, and cousin, were also present
in her grandparents’ home that afternoon. Crowell-Ford left the mobile home
at some point during his visit and did not tell D.C. where he was going.
That same afternoon, P.I. worked on a construction project in a mobile
home next to D.C.’s grandparents’ residence. The mobile home was elevated
around three or four feet, which allowed P.I. to see over the retaining wall
and into the nearby field. While he was working on floorboards in the home,
P.I. heard a round of gunshots that he initially believed may have been
fireworks. He looked through the window and saw two people facing each
other in the field. P.I. had never seen the people before and he described
them as a “Hispanic” man and a “Black” man. He observed the Hispanic man
walking backwards with his hands up.
P.I. resumed his work and a few minutes later heard between eight to
ten rapid gunshots. He looked through the window again and no longer saw
the Hispanic man standing. He saw the African American man jump over
the retaining wall, walk through the mobile home complex, and enter D.C.’s
grandparents’ home.
P.I. walked to the retaining wall, looked over, and saw the Hispanic
man lying in the field. After observing that the man was not moving, he
called 911. P.I. told police dispatch, “I seen a guy getting shot I think” and
described the suspect as a “Black guy.”
3
Another resident of the mobile home park, A.P., also witnessed the two
men in the field. At around dusk, A.P. was washing dishes and facing a
window that looked toward the retaining wall bordering the mobile home
park. He heard popping sounds that he later believed to be gunshots and saw
two people—a “Hispanic” man and a “Black” man—facing each other in the
field. A.P. observed the African American man walking towards the Hispanic
man while “pointing and firing.”
After a brief pause, A.P. heard more gunshots and no longer saw the
Hispanic man standing. He told police he observed the African American
man jump over the retaining wall and walk into the mobile home complex,
but he testified that he did not get a good look at his face. A.P. called 911 and
told police dispatch that he observed a “Black male shoot at, at some other
guy . . . . ” He told police the shooter was wearing a black beanie and a black
shirt with red letters.
When police officers arrived at the mobile home park, they found Irwin
Dominguez deceased in the nearby field. The medical examiner determined
Dominguez had been shot 14 times and died within minutes of suffering his
injuries. Near his body were 16 expended nine-millimeter cartridge casings
and a fired bullet. Officers also found “fresh” shoe impressions one or two
feet from Dominguez’s body, approximately 15 feet from the retaining wall,
and directly next to the retaining wall.
P.I. directed the responding police officers to the mobile home he
observed the man from the field enter. Although P.I. did not keep constant
observation on the mobile home, he did not see the man exit the home prior
to the police’s arrival. He described the man as having “dreadlocks” and
wearing a black and red t-shirt, black jeans, red shoes, and a black beanie.
4
The police set up a containment perimeter around D.C.’s grandparents’
home. D.C.’s grandfather, uncle, and cousin exited the home, and police gave
announcements ordering everyone else to exit. Crowell-Ford walked out of
the home, followed by D.C. and her grandmother. An officer testified that
Crowell-Ford was the only person who exited the home and “fit the
description” provided by P.I.
Crowell-Ford was detained by police and P.I. agreed to do an “infield
show[-]up.” P.I. was concerned about being perceived as a participating
witness in the criminal investigation, so he asked an officer to pretend to
arrest him before returning to do the show-up. The officer placed P.I. in
handcuffs and drove him away from the mobile home complex.
P.I. returned to the mobile home park in the back of the police patrol
car. Crowell-Ford stood in front of the patrol car and P.I. said “that’s him” or
“that’s the guy.” P.I. was “certain” Crowell-Ford was the same man he saw in
the field where Dominguez’s body was found. He recognized Crowell-Ford’s
hair and believed he was possibly wearing the same shirt but had changed
pants.
Police officers obtained a search warrant for D.C.’s grandparents’ home
and searched the residence. The mobile home had three bedrooms: the first
bedroom, used by D.C.’s grandparents; a second bedroom, used for storage;
and a third bedroom, used by the grandparents’ grandchildren, including
D.C. In the bedroom used by D.C., officers found a gun and a high capacity
magazine wrapped in a t-shirt and hidden in a ventilation grate. A black
beanie was also found in the same bedroom.
Crowell-Ford was arrested and transported to the police station. The
shoes Crowell-Ford was wearing at the time of his arrest were booked into
evidence. A homicide detective compared the shoe impressions found near
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Dominguez’s body and the nearby retaining wall, with the shoes Crowell-
Ford wore during his arrest. The detective opined that the sole pattern of
Crowell-Ford’s shoes matched the shoeprints.
Crowell-Ford’s fingerprints were not found on the gun, magazine, or
floor vent under which the gun and magazine were found. The police took
DNA swabs from the gun, magazine, floor vent, and beanie, and no evidence
was presented that any sample matched Crowell-Ford. Nor did Crowell-Ford
test positive for gunshot residue.
A firearms expert opined that the shell casings and bullet found near
Dominguez’s body had been fired by the gun found in the ventilation grate.
D.C.’s uncle asserted that neither he, nor D.C.’s grandparents, stored a gun
at the grandparents’ residence.
D.C. disclosed to police that when Crowell-Ford returned from his
unannounced absence on the afternoon of the shooting, he told her that he
had been in the wash area behind the retaining wall but had returned when
he heard gunshots. Crowell-Ford was wearing a black shirt when he initially
returned but asked D.C. if she could provide him with a different shirt. D.C.
gave him a blue shirt and she could not remember what he did with the black
shirt that he had previously been wearing. D.C. testified she was not present
with Crowell-Ford when he changed clothes or while he was in her bedroom
and bathroom.
During the trial, neither P.I. nor A.P. made an in-court identification of
Crowell-Ford as the man they observed in the field on the afternoon of
Dominguez’s murder. However, P.I. testified that he was “certain” the man
he identified in the mobile home park—Crowell-Ford—was the same man in
the field with Dominguez during the shooting. D.C. also had trouble
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identifying him in the courtroom because she believed Crowell-Ford “looked
different” during the trial.
Following the presentation of the prosecution’s evidence, Crowell-Ford
moved to dismiss the case based on a “lack of I.D.” In response, the
prosecution proffered that although P.I. was unable to identify Crowell-Ford
in court during the trial, P.I. “testified that the person that he identified as
the person that he saw in the field with the victim during the sound of
gunshots and with the hands placement as he testified to, he was certain that
he identified the right person. We laid the appropriate foundation that [the
person P.I. identified] was the defendant Crowell-Ford.” The trial court
found there was substantial evidence to support a guilty verdict and denied
the motion. Crowell-Ford did not present affirmative evidence.
Jury Instructions
The trial court provided 40 pages of jury instructions to the jury, which
included 29 individual numbered instructions. The instructions included
CALCRIM No. 315, which related to eyewitness identification testimony. As
given by the trial court, CALCRIM No. 315 provided:
You have heard eyewitness testimony identifying the defendant.
As with any other witness, you must decide whether an
eyewitness gave truthful and accurate testimony. [¶] In
evaluating identification testimony, consider the following
questions: [¶] Did the witness know or have contact with the
defendant before the event? [¶] How well could the witness see
the perpetrator? [¶] What were the circumstances affecting the
witness’s ability to observe, such as lighting, weather conditions,
obstructions, distance, and duration of observation? [¶] How
closely was the witness paying attention? [¶] Was the witness
under stress when he or she made the observation? [¶] Did the
witness give a description and how does that description compare
to the defendant? [¶] How much time passed between the event
and the time when the witness identified the defendant? [¶] Was
the witness asked to pick the perpetrator out of a group? [¶] Did
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the witness ever fail to identify the defendant? [¶] Did the
witness ever change his or her mind about the identification? [¶]
How certain was the witness when he or she made an
identification? [¶] Are the witness and the defendant of different
races? [¶] Were there any other circumstances affecting the
witness’s ability to make an accurate identification? [¶] The
People have the burden of proving beyond a reasonable doubt
that it was the defendant who committed the crime. If the People
have not met this burden, you must find the defendant not
guilty.2
The trial court provided additional instructions relating to the
credibility of witnesses, including CALCRIM No. 226. This instruction
required the jury to evaluate the credibility and believability of witnesses,
including a factor that asked “how well could the witness see, hear, or
otherwise perceive the things about which the witness testified.”
Crowell-Ford objected to the use of CALCRIM No. 371 (relating to a
defendant’s attempt to hide evidence) and CALCRIM No. 372 (relating to a
defendant’s flight) but he did not object to the use of CALCRIM No. 315.
Closing Arguments
The prosecution argued the evidence established, beyond a reasonable
doubt, that Crowell-Ford committed the premeditated murder of Dominguez.
They emphasized P.I.’s certainty during his identification of Crowell-Ford,
arguing that P.I. was “certain that the person that he picked out in that
infield lineup was the person that was in the field that he saw going toward
2 CALCRIM No. 315 was modified in March 2022. The instruction now
states, “[a] witness’s expression of certainty about an identification, whether
the identification was made before or at the trial, may not be a reliable
indicator of accuracy.” (CALCRIM No. 315 (rev. March 2022).) The
instruction directs the jury to consider additional factors related to
eyewitness certainty, including whether the police used procedures that
increased the witness’s level of confidence about the identification. (Ibid.)
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Mr. Dominguez, hopping over the retaining wall, and going into [D.C.’s
grandparents’ home]. He was certain.” The prosecution later posed the
rhetorical question, “how certain was Mr. [P.I.] when he made an
identification? I asked him. He said, ‘I was certain that the person that I
picked out on that day was the person that I saw in the field, jumping over
the wall, and going into the house.’ He said he was certain, and he picked
him out in the infield show-up.”
The prosecution also argued that the physical and circumstantial
evidence supported a conclusion that Crowell-Ford was the perpetrator of
Dominguez’s murder. They noted that the gun used to commit the murder
was found in Crowell-Ford’s girlfriend’s room, and that the evidence
suggested he was alone in this room for some time. Further, P.I. and A.P.
provided independent descriptions of the perpetrator that matched Crowell-
Ford’s clothing and hairstyle on the night of his arrest. Finally, the
prosecution discussed the detective’s opinion that the shoe impressions near
Dominguez’s body matched Crowell-Ford’s shoes. They argued that the
eyewitness identification, combined with the physical and circumstantial
evidence, proved Crowell-Ford’s guilt beyond a reasonable doubt.
The defense characterized the prosecution’s argument as mainly
focusing on “the gun and its location,” and argued that other people aside
from Crowell-Ford had access to the gun. The defense further argued that
P.I. and A.P. were not credible witnesses because the distance between the
shooting and their vantagepoint was too far away to be accurate. They
focused on the forensic evidence, noting that Crowell-Ford’s fingerprints and
DNA were not found on the gun, magazine, or the vent within which the gun
was found. Considering the lack of fingerprint and DNA evidence, the
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defense argued that ample reasonable doubt existed and asked the jury to
find Crowell-Ford not guilty.
The Verdict and Sentence
The jury convicted Crowell-Ford of first degree murder and made true
findings on the firearms allegations, including allegations that he personally
used a firearm, intentionally discharged a firearm, and intentionally
discharged a firearm causing great bodily injury or death. (§§ 187, subd. (a);
12022.53, subds. (b)-(d).) The trial court sentenced him to an indeterminate
life term of 50 years-to-life in state prison.
DISCUSSION
CALCRIM No. 315, as provided by the trial court, provided 13 factors
for the jury to consider when evaluating eyewitness identification testimony,
including the certainty of the witness when they made their identification.
Our high court in Lemcke, expressed concern that the certainty instruction
reinforced a common misconception that an “identification is more likely to be
reliable when the witness has expressed certainty.” (Lemcke, supra, 11
Cal.5th at p. 647.) Consequently, the Lemcke court held that a “reevaluation
of the certainty instruction [in CALCRIM No. 315] is warranted,” citing to the
“near unanimity in the empirical research that ‘eyewitness confidence is
generally an unreliable indicator of accuracy.’ ” (Ibid.) The court referred the
matter to the Judicial Council and its Advisory Committee on Criminal Jury
Instructions to determine whether and how to modify the instruction in a
manner that avoided reinforcing “juror confusion regarding the correlation
between certainty and accuracy.” (Ibid.) Until such an evaluation, the court
directed the trial courts to “omit the certainty factor from CALCRIM No. 315
unless the defendant requests otherwise.” (Id. at p. 648.)
10
After Lemcke was published, the jury in Crowell-Ford’s trial was
erroneously instructed to consider the unmodified certainty factor. Crowell-
Ford contends the certainty factor instruction violated his constitutional
rights and that he was prejudiced as a result.3 We review Crowell-Ford’s
challenge to CALCRIM No. 315 de novo. (People v. Posey (2004) 32 Cal.4th
193, 218 [“The independent or de novo standard of review is applicable in
assessing whether instructions correctly state the law”].) In so doing, we
“consider the jury instructions as a whole to determine whether error has
been committed. [Citations.] We may not judge a single jury instruction in
3 The parties additionally raise the issue of forfeiture. Crowell-Ford
concedes that he did not object to CALCRIM No. 315 at trial, but he contends
he did not forfeit his claim because no objection is needed when an issue
affects his substantial rights.
In People v. Sanchez (2016) 63 Cal.4th 411, 461-462 (Sanchez), our high
court concluded that the defendant forfeited his argument relating to the
constitutionality of the certainty factor by failing to object at trial. Although
we agree with the Attorney General that Crowell-Ford similarly forfeited his
argument, we may only determine whether his “substantial rights” were
affected by deciding if the instructions were given in error, and, if so, whether
the error was prejudicial. (People v. Franco (2009) 180 Cal.App.4th 713, 720
[“Instructional error affects a defendant’s substantial rights if the error was
prejudicial under the applicable standard for determining harmless error.”].)
Accordingly, in addressing whether his substantial rights were affected, we
must necessarily determine the merits of Crowell-Ford’s claim that his
constitutional rights were violated by the jury instruction and that he
suffered prejudice as a result. We therefore discuss the merits of his claim
despite our concern that he forfeited the issue by failing to object at trial.
Because we reach the merits of the issue and conclude post that Crowell-Ford
suffered no prejudice from the purported instructional error, we need not
address his claim of ineffective assistance of counsel. (See People v. Anderson
(2001) 25 Cal.4th 543, 569 [to succeed on a claim of ineffective assistance of
counsel, the defendant must show that his “counsel’s performance fell below a
standard of reasonable competence, and that prejudice resulted.”].)
11
artificial isolation but must view it in the context of the charge and the entire
trial record.” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330–1331.)
In support of his argument that the certainty factor instruction was
error of a constitutional magnitude, Crowell-Ford discusses the scientific
consensus concluding an eyewitnesses’ certainty in an identification is not a
good predictor of accuracy. He cites to numerous studies that conclude an
eyewitnesses’ certainty or confidence in an identification is not a good
predictor of accuracy and points to other jurisdictions that have rejected jury
instructions with similar language to CALCRIM No. 315. We do not disagree
with these findings, and we share the Lemcke court’s concern about the
questionable correlation between witness certainty and accuracy.
However, the court in Lemcke did not hold that the certainty
instruction rendered a defendant’s trial fundamentally unfair or otherwise
deprived a defendant of due process. (Lemcke, supra, 11 Cal.5th at p. 661.)
Rather, the court noted that nothing in the instruction operated to “ ‘lower
the prosecution’s burden of proof’ ” or “direct the jury that ‘certainty equals
accuracy.’ ” (Id. at p. 657.) The certainty factor was simply one of several
other factors for evaluating the credibility of witness identification. (Ibid.)
The jury instruction left for the jury to determine “whether the witness
expressed a credible claim of certainty and what weight, if any, should be
placed on that certainty in relation to the numerous other factors listed in
CALCRIM No. 315.” (Ibid.)
Similarly, here, the certainty factor did not function to lessen the
prosecution’s burden of proof. CALCRIM No. 315 instructed that the “People
have the burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime.” The certainty instruction was but one
factor for the jury to consider; the jury was directed to consider twelve other
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factors within CALCRIM No. 315, including whether the witness ever failed
to identify the defendant. Notably, the main eyewitness did fail to identify
Crowell-Ford during his trial. Other instructions also required the jury to
focus on various aspects of the eyewitnesses’ testimony, including “how well
could the witness see, hear, or otherwise perceive the things about which the
witness testified.”
However, Crowell-Ford further contends that the instructional error
was compounded by the prosecution’s focus on the certainty factor during
closing argument. He argues that the prosecution repeatedly emphasized
P.I.’s assertions that he was certain of the accuracy of his identification. By
contrast, Crowell-Ford states that his counsel altogether failed to address
“how to consider witness certainty,” particularly considering that the defense
did not present expert testimony relating to eyewitness identification.
Consequently, he argues that the jury was “effectively told that it can
consider witness certainty as a reflection of witness accuracy.”
To be sure, the prosecution did focus on P.I.’s expressions of certainty
during closing argument. The prosecution expressly stated P.I. was “certain
that the person that he picked out in that infield lineup was the person that
was in the field that he saw going toward Mr. Dominguez, hopping over the
retaining wall, and going into [the D.C. residence]. He was certain.”
However, the prosecution did not equate P.I.’s expression of certainty with an
accurate identification. Rather, the prosecution argued that the strength of
the eyewitness identification was supported by other evidence, including P.I.
and A.P.’s independent descriptions of the perpetrator—which matched
Crowell-Ford—along with other physical and circumstantial evidence.
Further, the trial record reflects that the defense was permitted to, and
did, present evidence and argument that P.I.’s certainty in his identification
13
was not correlative of accuracy. On cross-examination, the defense called
into question P.I.’s ability to see the events that transpired in the field
beyond the mobile home community. The defense elicited testimony from P.I.
that he was focused on his work when he heard the gunshots, and that when
P.I. observed the perpetrator jump over the retaining wall, he “didn’t really
observe because [he] didn’t think anything was serious.” The defense moved
to dismiss the case based on a “lack of I.D.” and argued to the jury that they
should not rely on P.I.’s identification because of the considerable distance
between his vantagepoint and where the shooting occurred.
Although Crowell-Ford’s case is distinct from Lemcke because he did
not present an eyewitness identification expert to address the certainty
factor, there is no evidence in the record that Crowell-Ford was prohibited
from presenting expert testimony, nor does he argue that his counsel was
ineffective for opting not to do so. (See Lemcke, supra, 11 Cal.5th at p. 658
[the defendant “was permitted to present expert witness testimony to combat
[the inference that certainty is correlative of accuracy],” (italics added)].)
Considering the totality of the trial record, including the defense’s cross-
examination and argument calling into question the accuracy of the
eyewitnesses’ identification, we conclude the absence of expert testimony did
not exacerbate any inferences suggested by the certainty factor in a manner
that violated Crowell-Ford’s due process rights. (See People v. Wright (2021)
12 Cal.5th 419, 453 [concluding that the defendant’s due process rights were
not violated by the certainty factor instruction, even in the absence of an
eyewitness identification expert].) Rather, the jury instructions contained a
multitude of factors for the jury to consider when evaluating the
eyewitnesses’ testimony, and they did not function to lower the prosecution’s
burden of proof or direct the jury that certainty equals accuracy.
14
But even assuming arguendo that the inclusion of the certainty
instruction was constitutionally erroneous, reversal is not warranted unless
the error was prejudicial. (See People v. Hendrix (2022) 13 Cal.5th 933, 941
[“not every error at trial requires reversal; the law requires us to affirm a
jury verdict despite instructional error if the error was harmless”].) Crowell-
Ford urges us to apply the federal Chapman (Chapman v. California (1967)
386 U.S. 18 (Chapman)) standard of review to his claim of instructional error,
but he maintains that he was prejudiced under either the Chapman
standard, or the Watson (People v. Watson (1956) 46 Cal.2d 818, 836
(Watson)) standard, which applies to questions of state-law error. The
Chapman standard “ ‘ “requir[es] the beneficiary of a [federal] constitutional
error to prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” ’ ” (People v. Pearson (2013) 56 Cal.4th
393, 463.) Under Watson, we ask whether it is reasonably probable that the
defendant would have obtained a more favorable result had the complained-
of-error not occurred. (Watson, at p. 836.)
Our Supreme Court has repeatedly applied the Watson standard to
claims of instructional errors involving the certainty factor. (See Sanchez,
supra, 63 Cal.4th at p. 463 [applying the standard articulated in Watson to
determine whether the trial court erred in instructing the jury that it could
consider the certainty factor]; People v.Wright (1988) 45 Cal.3d 1126, 1144
[analyzing instructional error related to the certainty factor under
the Watson harmless error standard] (Wright).) Accordingly, the Watson
standard of review is decidedly applicable to Crowell-Ford’s claim of
instructional error. But as we explain, we conclude that prejudice has not
been established under either the Chapman or Watson standard.
15
During Crowell-Ford’s jury trial, ample evidence was presented that he
was the perpetrator of Dominguez’s murder aside from the eyewitness
identification. Two independent witnesses, P.I. and A.P., provided largely
matching descriptions of the perpetrator before P.I. identified Crowell-Ford
during the infield show-up. They both described the person who fled the field
after Dominguez’s shooting as a “Black man” wearing a black shirt and black
beanie, and P.I. told police the man had “dreadlocks.” Police observed
Crowell-Ford’s appearance upon his arrest to be largely consistent with the
witnesses’ descriptions. Although Crowell-Ford was wearing a blue shirt
when he was apprehended by police, D.C. testified that he had changed out of
a black shirt that he was wearing prior to his arrest.
The physical and circumstantial evidence presented during the trial
provided further evidence that Crowell-Ford was the perpetrator of the
murder. The firearm used in the commission of Dominguez’s murder was
discovered hidden in a room used by Crowell-Ford’s girlfriend. Crowell-Ford
had unobserved access to the room where the gun was found, and D.C.’s uncle
testified that neither he, nor D.C.’s grandparents, stored a firearm in the
home. Crowell-Ford admitted to D.C. that he had been in the area where
Dominguez’s body was discovered, and P.I. observed a man matching
Crowell-Ford’s description jump the retaining wall and enter D.C.’s
grandparents’ home following the shooting. The soles of Crowell-Ford’s shoes
matched the shoe impressions found next to Dominguez’s body and near the
retaining wall where the shooting occurred.
Accordingly, given the consistency among the eyewitnesses’
descriptions, and the physical and circumstantial evidence pointing to
Crowell-Ford as the perpetrator of the murder, we conclude there is no
reasonable probability Crowell-Ford would have obtained a more favorable
16
result had CALCRIM No. 315 been modified to omit the certainty factor. (See
Sanchez, supra, 63 Cal.4th at p. 463; Wright, supra, 45 Cal.3d at pp. 1144–
1145.) For the same reasons, we further conclude there is no reasonable
doubt the jury would have returned a guilty verdict in the absence of the
certainty factor instruction. (Chapman, supra, 386 U.S. at p. 24.) Thus, any
instructional error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
CASTILLO, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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