People v. Turner CA4/1

Filed 6/9/21 P. v. Turner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076290

Plaintiff and Respondent,

v. (Super. Ct. No. SCD275956)

JEFFREY ALAN TURNER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed in part; reversed in part.

Carl Fabian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and
Respondent.
 An information filed on November 27, 2018, charged defendant Jeffrey

Alan Turner with the murder of Frank Magana. (Pen. Code,1 § 187, subd.
(a)). The information further alleged defendant in the commission of the
offense intentionally and personally discharged a firearm (i.e., a revolver),
and proximately caused great bodily injury and death to a person other than
an accomplice (§ 12022.53, subd. (d)); intentionally and personally discharged
a firearm (§ 12022.53, subd. (c)); personally and intentionally used a firearm
(§ 12022.53, subd. (b)); and personally used a firearm (§ 12022.5, subd. (a)).
The information also alleged defendant was ineligible for probation.
(§§ 1203.06, subd. (a)(1) [use of a firearm] & 1203.085, subd. (a) [offense
committed while on parole from a serious felony (manslaughter)].)
On April 25, 2019, the jury found defendant guilty of first degree
murder and found true all four of the firearm allegations. Defendant
admitted suffering one prior conviction under the Three Strikes Law
(§§ 1170.12, subd. (c)(1) & 667, subd. (e)(1)); one prior serious felony
conviction (§§ 1192.7, subd. (c) & 667, subd. (a)(1)); and one prison prior

(§ 667.5, subd. (b)).2 The court sentenced defendant to a total term of 81
years to life, comprised of a six-year determinate, followed by a 75-year
indeterminate, sentence.
On appeal, defendant contends the trial court violated his
constitutional rights by instructing the jury pursuant to CALCRIM No. 315

1 All further statutory references are to the Penal Code unless otherwise
noted.

2 On February 26, 2021, on this court’s own motion we obtained
supplemental briefing from the parties regarding whether Senate Bill No.
136, effective January 1, 2020, applied to defendant’s prior prison term
enhancement and if so, whether the enhancement should be struck under
newly amended section 667.5, subdivision (b).
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that a witness’s level of certainty is a factor to be considered in evaluating the
accuracy of identification testimony. As we explain, and in light of our high
court’s very recent decision in People v. Lemcke (2021) __Cal.5th__, 2021 WL
2150610 (Lemcke), we reject defendant’s contention and affirm the judgment.
BACKGROUND
Melissa H. testified that she knew Magana, whom she and others
referred to as “Pancho,” for about six years as they were friends from the
same Clairemont neighborhood; that about six months before the shooting,
she often would go to his house and clean; and that sometimes she would go
to his house and just “hang out.” Melissa told the jury that Magana knew a
lot of people, and had a lot of people coming to his home, because he sold
drugs.
Melissa admitted using methamphetamine and marijuana with
Magana. She also admitted to being addicted to heroin, and at the time of
the shooting, had been for about four years. She testified she last used
heroin in September 2018, and stopped using methamphetamine about two
weeks before her trial testimony.
Melissa was at Magana’s house on January 3, 2018, when he was shot.
According to Melissa, Magana had borrowed a car from a friend and had
picked her up at about 2:00 p.m. so she could clean his home. Melissa used
heroin at about 10:00 a.m. that morning, adding: “When I was doing heroin,
it would make me feel just normal and—because when I wasn’t on heroin, I
would be sick to my stomach. It’s hard to explain.” She also told the jury
when on heroin she felt “energetic.”
Melissa testified Magana was home while she was cleaning. As she
cleaned, Melissa heard Magana talking to his friend “Sammy,” as Sammy
owned the car Magana had borrowed and had called a few times asking for

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its return. Magana told Melissa more than once that he needed to go pick up
Sammy. After taking a shower and dressing, Magana grabbed his jacket,
locked his bedroom door, and headed toward the front door. Melissa then
was at the back door of the house, smoking a cigarette and blowing the smoke
outside, after Magana had complained about the smell.
While standing at the back door, Melissa had an unobstructed view of
Magana at the front door, as the doors “fac[ed] each other.” Melissa
overheard a short telephone conversation between Magana and Sammy, then
saw Magana open the front door and partially open the screen door, but not
fully exit the home. Instead, Magana turned and said goodbye to Melissa
who was still at the back door.
Melissa then described for the jury what occurred next: “He [i.e.,
Magana] asked me if I was okay and I told him, ‘Yes.’ And then I heard a
voice come up and say something and he turned around and said, ‘Who is
that?’ And I heard somebody say, ‘It’s me.’ And the voice was getting closer
and he—Pancho said, ‘Who the fuck is me?’ And then I heard the voice say
‘It’s JT.’ And then Pancho said—Pancho looked back at me and he had this
look on his face, and he just asked me if I was okay one more time and he
checked the bottom lock and made sure it was locked.
“And then at that time I was saying ‘Yes, I’m okay.’ And he goes,
‘Okay, I love you.’ And I said[,] ‘I love you too.’ And ‘Ill make sure your house
doesn’t smell like cigarettes when you come back.’ At the same time --
everything happened so fast. But at the same time I heard the voice say, ‘I
said it’s JT.’ And then I heard the gun go off and at that same time Pancho
was saying, ‘Okay. I love you. I’ll be right back.’ By the time he said, “be
back,’ I heard the voice say, ‘I said it’s JT.’ And then it went off.” Melissa

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testified she heard the person say three times “ ‘It’s JT’ ” in response to the
victim’s questions of “ ‘Who is that?’ ”
Melissa further testified she could not see who was outside when the
gun went off because it was nighttime, but from the light inside the home she
could see the tip of what she believed was a silver-colored gun, as Magana
was standing in the doorjamb when he was shot. Melissa estimated the
shooter was about three feet from Magana when he fired. Seconds before the
shooting, Melissa described Magana as being “irritated” and “annoyed” by the
person outside. After the single gunshot, Magana fell to the floor.
Melissa testified she recognized the voice of the man outside who
referred to himself as “JT.” Melissa in court identified “JT” as defendant. On
further questioning, Melissa said she knew “JT” through a mutual friend
named “Chris,” who, according to Melissa, was nicknamed “MFC,” short for
“Motherfucking Chris.” Melissa testified Chris and “JT” were best friends;
that she first met “JT” through Chris about two years before the shooting;
that she had “previously hung out with JT” and knew “JT” was short for
“Jeffrey Turner,” and that “JT” and another friend had picked Melissa up
from the hospital after she had given birth to her daughter. Melissa testified
she had had no problems with “JT” during the time she knew him, including
when they would hang out with mutual friends.
After the gunshot, Melissa testified she screamed, “ ‘Hey’ ” then
attempted to locate Jose, the victim’s brother. She first ran to Jose’s bedroom
but found it locked. She next ran out the back door to the garage and banged
on the door to the converted bedroom to see if Jose was inside, but again
nobody answered. She then went back into the home, grabbed some of her
stuff, and left through the front door. Melissa saw Magana lying on the floor.
She thought Magana was dead, as he was not moving and his eyes were open.

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 When asked why she did not call 911, Melissa told the jury she was
afraid “JT” would overhear her making the call, as he could have recognized
her voice after she screamed. Melissa instead called “Christopher,” whom she
referred to as “Chico,” who lived a short distance away from the victim’s
house. Chico earlier that day had been at Magana’s home while Melissa was
cleaning, and before the shooting Chico was the last person she had spoken to
on her phone. Melissa told Chico about the shooting.
Melissa next located her mother, who was staying with a friend in the
Clairemont area. Melissa also told her mother about the shooting. Melissa
and her mother walked towards Melissa’s grandmother’s home, where
Melissa and her family were staying, as Melissa wanted to be with her
children. Along the way, Melissa and her mother saw Chico. He instructed
them to go to “Gina’s” home, which was on the way to Melissa’s home, and
remain there. Melissa and her mother went to Gina’s home. Melissa told
Gina and Chico’s mother, who was also at the home, about the shooting.
Melissa testified that Gina was “kind of upset” because Melissa had not
called 911.
On further questioning, Melissa admitted she also was hesitant to call
911 because of an outstanding warrant for drug use. She also was concerned
about going to jail because of her heroin addiction, and feared the police
would consider her a suspect in the shooting because she knew what had
“go[ne] on” in Magana’s home and had run from the scene. Melissa admitted
she previously had told investigators that Magana was not dealing drugs
from his home because she wanted to protect him, but had finally told the
truth about his drug-dealing.
As Melissa neared her grandmother’s home, Chico called. He told
Melissa she needed to tell police that she had been at Magana’s house at the

6
time of the shooting. Melissa agreed. A short time later, police arrived at
Melissa’s home and took her statement. While giving her statement, Melissa
saw a picture of defendant, identified him as “JT,” and confirmed it was his
voice she had heard seconds before the shooting.
Later that evening, Melissa went to police headquarters and spoke with
detectives. Melissa again identified the shooter as “JT” based on the voice
she heard outside the front door, and again identified him from a different
photograph shown by detectives. Detectives asked Melissa how confident she
was the person who identified himself as “JT” at the victim’s door “was the
same Jeffrey Turner that [she] knew.” Melissa testified that she told
detectives she was “100 percent” confident in her identification of the shooter.
At trial, Melissa admitted she had not seen “JT” for about two years when
she identified him in court as the shooter. She nonetheless reiterated the
voice she heard immediately before the shooting was defendant’s voice.
Melissa also testified that in the course of her friendship with Magana,
she had never heard him mention “JT” or “Jeffrey Turner” or saw the two
men together. However, Magana knew Chris (aka MFC), who, according to
Melissa, was defendant’s best friend, because the victim had told Melissa he
had gone to Chris’s home and would occasionally see Chris at a local
neighborhood bar.
Christopher L., whose nickname was “Chico,” testified he lived down
the street from Magana, whom he referred to as “Tio Pancho” or “Uncle
Pancho” because Magana gave him “great advice.” Christopher had known
Magana for about six months, and had stopped by Magana’s house at about
6:00 p.m. on the day of the shooting. Christopher testified Magana then was
busy helping Melissa clean. Christopher had seen Melissa, whom he referred
to as “Mess,” once or twice at Magana’s home, but they did not hang out

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together. After about 45 minutes, Christopher left Magana’s home, after
Magana said he had to return a friend’s car. Christopher and Magana
planned to meet within the hour to have dinner together. Christopher
walked to a nearby gas station to buy a soft drink.
On his way home, Christopher at 6:49 p.m. received a call from
Melissa. According to Christopher, Melissa sounded “frantic and scared” as
she repeatedly told him that Magana had been shot in the head and was
probably dead. On hearing that news, Christopher ran to his aunt Gina’s
house, which was right down the street from the victim’s home. Christopher
at the time assumed Melissa had called 911.
As he approached his aunt’s house, Christopher “ran into” Melissa, who
was accompanied by her mother. Christopher testified that Melissa appeared
“[t]errified,” as she was crying and could not stop moving. Once at his aunt’s
house, Christopher told Gina and his mother about the shooting. Melissa
then informed them she had not called 911. Christopher said to call 911 and
ran to Magana’s house.
On arriving at Magana’s house, Christopher saw the victim “lying
facedown on the floor in front of his house trying to stand up.” Christopher
sat next to Magana, who rolled onto Christopher’s lap. Christopher then saw
a bullet hole in the back of Magana’s head. Christopher told Magana to
“hang on,” as he heard sirens approaching. While alone with Magana,
Christopher asked what had happened, and who had done this, but Magana
only responded, “Help me.” According to Christopher, Magana was also
crying and moaning. A few minutes later, as Magana was being put into the
ambulance, Christopher testified that he heard Magana say the name
“Elijah.”

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 Christopher gave a statement to police, including that he had learned
of the shooting from Melissa. At the request of police, Christopher called
Melissa. Melissa agreed to speak with police and gave Christopher her
location, who passed it on to police.
Ginger W. testified she and Magana had been “seeing” each other a
short while at the time of the shooting, although she had known him for a few
years. Ginger also knew defendant, who went by the name “JT,” whom she
identified in court. Ginger knew both Magana and defendant as a result of
“hanging out in the Clairemont area.”
At trial, Ginger testified she never heard Magana talk about defendant.
However, she admitted previously telling detectives that Magana told her
that defendant had stopped by his house; and that she had overheard
Magana on the phone saying “JT [was] being a problem.”
Ginger testified she had a serious boyfriend who had just gotten out of
prison at the time she was “seeing” Magana. A day before the shooting,
Ginger and Magana were at his house when they began to argue about her
boyfriend. According to Ginger, Magana became angry and pulled a gun on
her. Ginger admitted she also pulled out a weapon during the argument with
Magana.
Officer Zachary Digioia of the San Diego Police Department testified he
and his partner responded at 7:02 p.m. to a radio call of assault with a deadly
weapon at a house on Sauk Avenue in Clairemont. First on scene, Officer
Digioia activated his body-worn camera. The officers saw a man lying in the
front yard of the house, who was later identified as Magana. Officers saw a
blood trail near the entrance of the house leading to the man’s location. The
man’s head was bloody. The officers rendered first aid until paramedics
arrived.

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 A portion of the video from Officer Digioia’s body-camera was played for
the jury, and a transcript of that portion of the recording was included in the
record. It describes the officers rendering first aid to Magana and trying to
keep him calm; Magana “[m]oaning,” “yelling,” and “crying”; and the officers
attempting to question Magana including asking the victim who shot him.
At one point one of the officers says the word “Eliza,” and this same
officer then asks the victim, “Elijah shot you? Do you know Elijah’s last
name?” and “Where, where did Elijah go?” At a later point, the video
transcript shows another officer yelling, “Elijah, if you’re inside this house,
you need to come out now!” as Magana’s house was being cleared.
Officer Digioia told the jury that he never heard Magana say the name
“Elijah”; that he asked Magana more than once who had shot him but the
victim did not respond; that he was the officer who accompanied Magana in
the back of the ambulance as the victim was being transported to the
hospital; that based on his body-worn camera, he was with the victim for
about 23 minutes; and that during this time-span, the victim never “utter[ed]
a recognizable word” including the name Elijah.
Officer Christopher Lingenhol of the San Diego Police Department
testified he and his partner also responded to the scene of the shooting on
Sauk Avenue. Officer Lingenhol helped other officers render first aid to
Magana, as the victim was moving and the officers were attempting to keep
pressure on the victim’s head wound. As he tried to calm Magana, Officer
Lingenhol asked the victim who had done this to him.
Officer Lingenhol testified, “I believe they answered and I heard them
say something that sounded like Elijah.” On further questioning, Officer
Lingenhol added he was not confident the victim had said the name Elijah,
and that he looked at the other officers and they “kind of put it together that,

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like, mouthing it to each other, like, was that Elijah? [¶] We were—I was not
100 percent sure. I tried to confirm with that individual and they did not
confirm or deny that was what was said.” Officer Lingenhol also told the jury
that Magana was unable to answer any of his questions in a manner that
indicated the victim understood what was being asked.
Officer Lingenhol and other officers “cleared” Magana’s house. They
found a “pool of blood” on the front step of the walkway, near the front door.
Officer Lingenhol then was told about a potential witness to the shooting
named Melissa. He and his partner drove to a different location and
interviewed Melissa.
During the interview, Melissa told the officers that she heard a voice
outside Magana’s front door before he was shot; that “she recognized the voice
as somebody she knows”; and that in response to their request, she showed
them a photograph from a social media account of the person whose voice she
recognized. Officer Lingenhol testified that person was “Jeffrey Turner.”
Detective Michael Weaver of the San Diego Police Department was the
lead detective in the investigation. He worked side-by-side collecting
evidence at Magana’s home with a crime-scene specialist. On the floor in the
middle of the living room/hallway they found a “fired projectile,” with a
“defect in the drywall directly above [it].” Detective Weaver added, “The
defect was essentially a scoring along the drywall I would call it two to three
inches in length and almost precisely above the center of the living room,”
near the front door. They also found “drywall dust” “directly under the defect
and it was captured by [a] dark-colored sofa,” which, according to Detective
Weaver, made it “easy to spot.”
Detective Weaver testified they measured the distance between the
back door, where Melissa had been standing in the doorjamb, to the front

11
door, where Magana had been exiting the home when he was shot. They
found it was about 21 feet apart and there was an unobstructed view between
the two doors. They also found a blood stain on the interior of the screen
door, where Magana had been standing; and a blood droplet or smudge on the
floor in the interior of the house, near the front door.
The following morning, Detective Weaver learned that defendant had
been arrested at a house on Tipton Street in San Diego. Later that day,
Detective Weaver along with several other officers conducted a lawful search
of that home. From that search, police found evidence that defendant resided
in a converted bedroom, located in the garage off the main house. On the
floor of the converted bedroom police found a “black boot with an item shoved
down inside of it wrapped in a black t-shirt with red and white writing.”
Detective Weaver testified that on further inspection and without
manipulating the boot in any way, he could see a “glimmer of something
silver in between the layers of cloth through the boot.” After the boot was
secured, inside police found an unloaded silver Smith & Wesson revolver.
The Tipton Street home had eight externally mounted cameras that
recorded to a digital system located in the master bedroom. As part of the
search warrant, police accessed the system and downloaded surveillance
video for the 24-hour period beginning in the afternoon on January 3, 2018.
The video showed defendant at about 2:10 p.m. sitting in the backyard
smoking a cigarette. A few minutes later, the video shows defendant wearing
a black T-shirt. At about 2:45 p.m., the video from another camera showed
defendant walking across the street, getting into a car registered in his name,
and driving away.
Detective Weaver reviewed the video for the next five hours after
defendant had left home. It showed the homeowners where defendant lived

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coming and going, but at no time during this five-hour period did it show
defendant at home.
Of interest to Detective Weaver, between about 7:00 and 7:30 p.m., the
video showed the homeowner, Clayton G., talking on his cellphone, pacing
back and forth in the front of the house, and, based on the “frenetic motions
of his hand,” appearing “irritated or upset.” Thereafter, Detective Weaver
noticed that homeowners Clayton and his wife Holly G. at around 8:28 p.m.
began to “manipulate[] every single camera on the eaves of the house to
record something mundane: the side of the house, a shrub. Anything but the
original azimuth [i.e., angle] of recording that it was set at.”
In one instance, the video showed Clayton at around 8:40 p.m. holding
a flashlight, looking into one of the surveillance cameras, and moving the
camera. Other portions of the video showed Clayton shining the flashlight
directly into another camera while appearing to talk on his cellphone. The
video also showed Clayton at about 8:37 p.m. adjusting or “manipulating” for
a second time a certain camera, with that camera “go[ing] black” less than a
minute later and then recording shrubs.
At about 8:50 p.m., the video showed headlights of an approaching car,
and the car park. A man later identified as defendant got out of the car and
walked toward the Tipton home. Defendant was wearing a baggy T-shirt,
jeans, and a hat that was backwards with a square label on its bill. Detective
Weaver testified this same hat was subsequently recovered during one of the
lawful searches of defendant’s bedroom. Shortly thereafter, another camera
recorded defendant in the backyard of the home. According to Detective
Weaver, this camera showed a “black object” tucked into defendant’s
waistband.

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 Detective Weaver testified that after defendant returned home, other
cameras were then manipulated “back into place”; that Holly manipulated
several of these cameras, as once the cameras were moved back to their
original position the video showed her walking into the foreground; and that
the camera, which earlier in the day had recorded defendant sitting and
smoking a cigarette, had also been moved, as the camera captured different
views of the backyard as compared to earlier video footage.
One of the backyard cameras recorded flames coming from a firepit at
about 9:14 p.m. Next, it recorded defendant coming into view. Detective
Weaver described defendant’s actions as follows: “He took a knee. He bowled
a strike, he took another knee, he raised his hand outward and upward at
about a 45-degree angle in a salute, and now he is pivoting at 45-degree
angles, essentially doing military-style right faces. [¶] And he just raised his
hand three more times in that same outward upward 45-degree salute.”
Detective Weaver testified that the footage from all eight cameras was
entirely missing between 8:39 and 8:48 p.m., either because the “recording
was paused, or it was outright deleted.” The detective noted defendant
already had arrived home when the system stopped recording during this
nine-minute period.
A crime scene specialist testified she processed the silver revolver
recovered from defendant’s bedroom. Inside one of the chambers of the
cylinder she found a “red-brown stain” or mixture that she swabbed for DNA
testing. The crime scene specialist also collected some trace evidence or
“debris” from the frame of the revolver. She attended the autopsy of Magana
and received part of a bullet with a copper jacket that had been recovered
from the victim.

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 DNA testing of the red-brown stain indicated defendant contributed 92
percent of the mixture and the victim 7 percent, with a third unknown
individual contributing less than 1 percent to the mixture. With respect to
the victim’s DNA found in the mixture, it was determined that it was “1.04
times 10 to the 22 times more likely that Frank Magana contributed DNA to
this mixture than if he did not contribute DNA to this mixture.” Defendant’s
DNA was found on the outside of the revolver and on the black T-shirt that
was wrapped around the revolver, and it was determined he was the sole
contributor of DNA on these items.
Paramedic Oscar Aguirre testified he was on duty in the evening of
January 3, 2018, and was dispatched to the shooting location. On arrival at
7:12 p.m., Aguirre found the victim was making grunting noises, but was
neither talking nor tracking. Aguirre, along with a police officer, rode in the
back of the ambulance with the victim.
On the way to the hospital, Aguirre held a pen light to Magana’s eyes
and found they reacted “[v]ery minimally” to light. During the drive to the
hospital, the victim also did not make any specific statements or say any
words that Aguirre understood to be actual words.
At the hospital emergency room, Magana was evaluated by Dr. Frank
Coufal, a neurosurgeon. Dr. Coufal reviewed a CT scan of the victim’s head
and found evidence of a bullet entry to the lower left of the victim’s brain,
which then crossed over the midline to the opposite hemisphere. Along the
trajectory there were bone fragments and acute hemorrhage with substantial
bleeding within the deeper ventricles of the victim’s brain. Dr. Coufal
testified that if an individual suffers a brain injury similar to the victim, he
or she typically has a “poor prognosis for recovery”; that over the course of the
following week the victim continued to show signs of significant neurologic

15
injury; and that the victim thereafter was transferred to another hospital and
had died within a week.
Dr. Coufal opined in all medical probability that the injury to the
victim’s brain “would have affected language function to some degree,”
inasmuch as the entry of the projectile was through the left side of the
victim’s brain, which Dr. Coufal noted is the dominant hemisphere that
controls language function.
Abubakr Marzouk of the San Diego County Medical Examiner’s Office
performed the autopsy. An x-ray revealed a projectile lodged in the left side
of the victim’s brain, which was recovered during the autopsy and turned
over to law enforcement.
Dr. Marzouk also examined a piece of the victim’s skull that had been
surgically removed to relieve the pressure on the victim’s brain. It showed an
entrance wound and “black discolorations” in the interior, which Dr. Marzouk
explained was soot from the burning of powder when a gun is fired at close
range. Dr. Marzouk estimated the victim’s head was within inches of, and
likely no more than one or two feet away from, the gun barrel. Dr. Marzouk
determined the victim’s cause of death was homicide from the gunshot
wound.
The projectile recovered during the autopsy fit inside the projectile
fragment found on the victim’s living room floor. The prosecution’s expert
opined that the two projectile fragments “were of a common source” and made
up one bullet. The expert then compared the two pieces of the projectile to
test-fires from the gun recovered from defendant’s bedroom. Based on the
markings from the one bullet, the expert opined to a “practical certainty” that
the bullet was fired “by the Smith & Wesson revolver” recovered from
defendant’s bedroom.

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 The prosecution expert also was asked about soot. He explained soot as
fine particles of explosive compound that a gun emits when fired. He
explained that soot particles “generally travel a maximum eight inches away
from the skin to ten being maximum,” as determined by the distance from the
end of the gun barrel to the victim’s body. Because soot was found on the
inside of the victim’s skull but not on skin outside the skull, the expert opined
that “would be consistent with contact or near contact” between the barrel of
the gun and the victim’s head.
DISCUSSION
I
CALCRIM NO. 315

Defendant in his opening brief3 contends his due process rights were
violated when the trial court instructed the jury with CALCRIM No. 315
because that instruction told the jurors to consider an eyewitness’s level of
certainty when evaluating the identification testimony. The instruction
specifically recommended the jurors consider the following, which we
sometimes refer to as the “certainty factor”: “How certain was the witness
when he or she made an identification?”
Specifically, defendant contends that there is no correlation between
certainty and accuracy; that Melissa, the prosecution’s principal witness, was
a long-time heroin addict who defendant claimed was “wholly unreliable” and
who identified defendant as the shooter “based on her recollection of
[defendant’s] voice, even though she was only casually acquainted with
[him]”; and that, in violation of his rights to due process of law, she testified
she was “100 percent” certain the voice she heard was defendant’s voice.

3 Defendant’s contention predated Lemcke.
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 Defendant also contends that his defense counsel’s failure to object to
or seek modification of the certainty factor did not forfeit his claim of error on
appeal.
A. CALCRIM No. 315 and the Certainty Factor
The jury was instructed with CALCRIM No. 315 as follows: “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 or hear the perpetrator?
[¶] What were the circumstances affecting the witness's ability to observe, or
hear 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 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.” (Italics added.)

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 B. Forfeiture
As noted, defendant admits that he did not ask the court to modify
CALCRIM No. 315 to remove the challenged certainty factor language. The
Attorney General argues that defendant’s failure to request modification
forfeited his challenge on appeal. We agree with the Attorney General.
In People v. Sanchez (2016) 63 Cal.4th 411, 461–462 (Sanchez), our
high court considered the defendant’s argument that because there was “at
best, a weak correlation between . . . certainty and accuracy,” the trial court

erred in instructing the jury with CALJIC No. 2.92,4 the CALJIC equivalent
to CALCRIM No. 315. Our high court stated: “The Attorney General argues
the claim is forfeited because defendant did not request that CALJIC No.
2.92 be modified. We agree. If defendant had wanted the court to modify the
instruction, he should have requested it. The trial court has no sua sponte
duty to do so. [Citations.]” (Sanchez, at p. 461, italics added.) We are bound
by our high court’s holding in Sanchez. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).) We therefore conclude
defendant forfeited his claim of instructional error by failing to seek
modification of CALCRIM No. 315 in the trial court.

4 As given in Sanchez, CALJIC No. 2.92 provided, in relevant part:
“Eyewitness testimony has been received in this trial for the purpose of
identifying the defendant as the perpetrator of the crimes charged. In
determining the weight to be given eyewitness identification testimony, you
should consider the believability of the eyewitness as well as other factors
which bear upon the accuracy of the witness’s identification of the defendant,
including but not limited, to any of the following:. . . .‘[T]he extent to which
the witness is either certain or uncertain of the identification . . . .’ ”
(Sanchez, supra, 63 Cal.4th at p. 461, fn. 7.)
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 C. Analysis

Reaching the merits,5 we review de novo whether CALCRIM No. 315—
and the certainty factor in particular—correctly state the law. (People v.
Posey (2004) 32 Cal.4th 193, 218.) In so doing, we presume that jurors are
“able to understand and correlate instructions” and “have followed the court’s
instructions.” (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Our high court just recently rejected a defendant’s due process claims
based on CALCRIM No. 315 and the certainty factor, finding that when
considered as one of the 15 factors the jury may consider when evaluating
identification testimony, this particular factor did not render the defendant’s
trial fundamentally unfair. (Lemcke, supra, WL 20150610, at p. *1.) Despite
the absence of a due process violation, the Lemcke court found that
reevaluation of the certainty instruction was warranted and directed trial
courts to omit this factor from CALCRIM No. 315 pending further
clarification from the Judicial Council and its Advisory Committee on
Criminal Jury Instructions. (Ibid.)
In reaching its decision in Lemcke, our high court relied on prior case
law in which it repeatedly approved in CALJIC No. 2.92 language nearly
identical to the certainty factor in CALCRIM No. 315. (See Lemcke, supra,
WL 20150610, at pp. 15–17, citing Sanchez, supra, 63 Cal.4th at pp. 461–462;

5 Because we consider the merits of defendant’s instructional error claim,
we decline to consider his alternate contention that counsel was ineffective
for failing to object to the certainty factor language in CALCRIM No. 315.
However, even assuming counsel’s performance was deficient, as we explain
post defendant suffered no resulting prejudice. (See People v. Mai (2013) 57
Cal.4th 986, 1009 [noting in addition to showing counsel’s performance was
deficient, a defendant “must show resulting prejudice, i.e., a reasonable
probability that, but for counsel's deficient performance, the outcome of the
proceeding would have been different”].)

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People v. Johnson (1992) 3 Cal.4th 1183, 1230–1232 (Johnson); and People v.
Wright (1988) 45 Cal.3d 1126, 1143–1144 (Wright).) In Sanchez, the jury was
instructed to consider a witness’s certainty in making an identification.
(Sanchez, at p. 461.) On appeal, the defendant, much like our defendant in
the instant case, relied upon “scientific studies that conclude there is, at best,
a weak correlation between witness certainty and accuracy,” and argued the
trial court “erred in instructing the jury it could consider the certainty
factor.” (Ibid.)
After finding, as we have noted, the defendant forfeited this claim by
failing to request modification of the instruction, the Sanchez court concluded
there was no error in giving the instruction, and no prejudice in any event.
(Sanchez, supra, 63 Cal.4th at p. 462.) The court observed that studies
suggesting a weak correlation between witness certainty and accuracy were
“nothing new,” adding that Wright “specifically approved CALJIC No. 2.92,
including its certainty factor,” and Johnson “reiterated the propriety of
including this factor.” (Sanchez, at p. 462.) The Sanchez court declined to
reconsider the propriety of these previous holdings. (Ibid.)
In the instant case, as was the case in Sanchez, the certainty factor in
CALCRIM No. 315 was presented in a neutral manner and did not equate the
certainty of a witness’s identification with its accuracy, despite defendant’s
contention otherwise. (See Sanchez, supra, 63 Cal.4th at p. 462.) In addition,
the certainty factor was only one of more than a dozen factors offered for the
jury’s consideration, and it did not advise the jurors what weight, if any, to
assign to Melissa’s confidence that it was defendant’s voice she heard outside
Magana’s front door seconds before the shooting.
Indeed, the defense during closing aggressively argued that no weight
should be afforded Melissa’s identification because up until two weeks before

21
trial, she had been using methamphetamine, while at the same time claiming
she was sober. The defense further argued at the time of the shooting,
Melissa admitted she had been addicted to heroin for about four years, and
had used heroin on the morning of the shooting before going to Magana’s
house to clean. The defense argued Melissa’s drug use, and her being under
the influence of heroin at the time of the shooting, made her identification of
defendant untrustworthy.
The defense also argued Melissa was not credible because she did not
call 911 to report the shooting. The defense noted that Melissa later
admitted one of the reasons she had not called 911 was because she had an
outstanding warrant; that, according to the defense, Melissa, like all drug
users, was a liar because drug addicts are untruthful when they say they are
not using and are sober, when in fact they are using and lying about it; and
that Melissa falsely accused defendant because she wanted to “get the heat
off of her” and avoid prison, where it would be difficult for her to obtain
heroin.
The defense in closing also argued Melissa’s identification of defendant
was not credible because she did not know defendant well, as he was more of
a “friend of a friend”; and, at the time of the shooting, she had not seen him
for about two years. In the end, it was the jury’s responsibility to decide the
weight, if any, to give Melissa’s identification of defendant as the shooter,
based on the myriad factors set forth in CALCRIM No. 315, and not just
because Melissa testified she was “100 percent” certain the voice she
recognized was the voice of defendant.
In light of Lemcke and its progeny, we reject defendant’s claim that he
was deprived of due process of law as a result of the inclusion of the certainty
factor in CALCRIM No. 315. (See Auto Equity Sales, supra, 57 Cal.2d at

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p. 455.) As such, we find unavailing defendant’s reliance on various studies
and out-of-state authorities to support his claim the certainty factor in
CALCRIM No. 315 violated his right to due process of law.
But even assuming the certainty factor instruction was erroneous, we
conclude in the instant case that any such error was harmless. (See Sanchez,
supra, 63 Cal.4th at pp. 462–463 [applying the standard articulated in People
v. Watson (1956) 46 Cal.2d 818 (Watson) in determining whether the court
erred in instructing the jury that it could consider the certainty factor in
CALJIC No. 2.92]; Wright, supra, 45 Cal.3d at p. 1144 [analyzing
instructional error under the Watson harmless error standard].)
Indeed, as summarized ante the record shows at about 8:28 p.m. on the
night of the shooting Clayton and Holly manipulated all eight external
cameras at the Tipton property where they and defendant resided, after one
of the cameras captured Clayton having what Detective Weaver described as
an animated conversation on his cellphone. Despite attempting to adjust the
cameras to record “mundane” things such as shrubs, one of the cameras in
front of the home recorded defendant arriving home at about 8:51 p.m., and
another camera located in the backyard thereafter showed defendant with a
black object tucked into his waistband. The following day, police found a
revolver wrapped in black clothing in defendant’s boot while conducting a
lawful search of his bedroom.
Testing of the revolver recovered from defendant’s bedroom showed to a
“practical certainty” that the bullet that killed Magana was fired from this
weapon. In addition, testing of the “red-brown stain” found inside one of the
revolver’s chambers showed it was “1.04 times 10 to the 22 times more likely”
than not Magana’s DNA, as the victim was shot at very close range as
evidenced by the soot inside the interior of his skull.

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 Moreover, the record shows that defendant and Magana knew each
other; that a few weeks before the shooting, Magana had told his friend
Ginger that defendant was “being a problem” after defendant had stopped by
Magana’s house; and that on the night of the shooting, one of the backyard
cameras recorded defendant “celebrating” by a firepit about two hours after
the shooting.
On the record before us, we conclude there is no reasonable probability
that defendant would have obtained a more favorable 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 this
separate reason, we therefore reject defendant’s claim of instructional error.
II
Newly Amended Section 667.5
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5,
subdivision (b) regarding prior prison term enhancements. (See Stats. 2019,
ch. 590, § 1.) Former section 667.5, subdivision (b) imposed an additional
one-year term for each prior separate prison term or county jail felony term,
except under specified circumstances.
However, newly amended section 667.5, subdivision (b) imposes that
additional one-year term only for each prior separate prison term served for a
conviction of a sexually violent offense as defined in Welfare and Institutions
Code section 6600, subdivision (b). (§ 667.5, subd. (b); see People v. Jennings
(2019) 42 Cal.App.5th 664, 682 [noting “[b]y eliminating section 667.5,
subdivision (b) enhancements for all prior prison terms except those for
sexually violent offenses, the Legislature clearly expressed its intent in
Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison
terms for offenses other than sexually violent offenses”].)

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 Here, the parties in supplemental briefing agree that defendant’s prior
prison term was not for a sexually violent offense as defined under Welfare
and Institutions Code section 6600, subdivision (b). Because defendant’s case
is not yet final, we agree with the parties that Senate Bill No. 136 applies
retroactively to him (see In re Estrada (1965) 63 Cal.2d 740); and therefore,
that his one-year prior prison enhancement must be stricken.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment
striking the one-year prison prior imposed on defendant under former section
667.5, subdivision (b), and forward a certified copy to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is
affirmed.

BENKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.

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