People v. Howard CA5

Filed 10/17/13 P. v. Howard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F065643 Plaintiff and Respondent, (Super. Ct. No. F11905164) v.

EZEKIAL LADONNE HOWARD, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Bruce M. Smith, Judge. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and J. Robert Jibson, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Detjen, J., and Franson, J.

Ezekiel Ladonne Howard was convicted of assault with a firearm and shooting at an occupied vehicle. He contends that the pattern instruction given to the jury on eyewitness identifications, CALCRIM No. 315, was erroneous and unconstitutional because it stated that a witness’s level of certainty in making an identification is a relevant consideration. Howard says social science research shows no correlation between an eyewitness’s degree of certainty and the accuracy of the witness’s identification. Howard did not object to the instruction at trial and he has not demonstrated that his substantial rights were affected by it. Consequently, he has forfeited the issue and it is unnecessary for us to consider the merits of his contention about the lack of scientific support for the instruction. The judgment will be affirmed. FACTUAL AND PROCEDURAL HISTORIES Michael Dixon, a college student, met Judy Tes at a nightclub in August 2011. He had seen her several times when, on September 1, 2011, he offered her a ride to a store. He drove to her home around 11:00 p.m. and parked nearby. A large, dark vehicle pulled up beside Dixon’s car with the driver’s window facing Dixon’s window. The driver signaled to Dixon to open his window. When Dixon did so, the driver asked whether Dixon was waiting to see his (the driver’s) sister. Dixon asked who the driver’s sister was, and the driver said Judy. Dixon at first thought the driver was Cambodian, like Judy. (Dixon and Howard are African American.) The driver of the other car drove on and parked about 20 feet away from Dixon. In his rearview mirror, Dixon saw the driver get out. Judy appeared in the street. She and the driver argued. The driver said something like, “you think you’re going out with him[?]” The driver then walked to within about a half a foot from Dixon’s car and drew a gun from his pocket. He told Dixon he had 13 seconds to leave. Dixon began driving away. He heard five or six shots. His rear window shattered. He ducked down to take