P. v. Milligan CA2/4

Filed 7/6/26 P. v. Milligan CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B339400

Plaintiff and Respondent,

(Los Angeles County
Super. Ct. No. MA081750)
v.

MARQUISE CLAY MILLIGAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa M. Strassner Judge. Affirmed.
Mark R. Yanis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Dana
Muhammad Ali and Seth P. McCutcheon, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted defendant Marquise Milligan of the murder of Bobby
Mitchell and of personally using a handgun in the commission of that crime.
At trial, two eyewitnesses identified defendant as the shooter.
On appeal, defendant contends the trial court violated his due process
rights by improperly instructing the jury to consider a witness’s certainty in
identifying him without also informing the jurors that certainty does not
always correlate with accuracy. We find no due process error and, moreover,
that any error would be harmless. We therefore affirm the judgment.
PROCEDURAL HISTORY
A jury convicted defendant of first degree murder (Pen. Code, § 187,
subd. (a))1 and found true an allegation that he personally used a handgun in
the commission of the offense. (§ 12022.5, subd. (a).) The trial court
sentenced defendant to 25 years to life in prison for the murder, plus a four-
year consecutive sentence for the firearm enhancement.
FACTUAL BACKGROUND
I. Evidence at Trial
The prosecution presented the following evidence at trial.
A. Azyria Lewis
The shooting occurred on July 2, 2021. That evening, Lewis went to
Big Shotz bar to meet some friends, including Ryann Anderson. Lewis and
her friends left the bar around 1:30 a.m. on July 2, as reflected in
surveillance footage from outside the bar. Lewis saw Mitchell outside the bar
as she was leaving. Lewis also identified defendant in the bar surveillance
footage played for the jury. Defendant was wearing a black baseball cap,
white t-shirt, and had a bag with a single strap around one shoulder.
After leaving the bar, Lewis met her friends at a house party. She
stayed outside the house for about 30 minutes talking to a group that
included Anderson and Mitchell. Lewis saw Mitchell go into the house a few
times and come back out.
At some point, Lewis saw defendant come outside with a woman. Lewis
had never seen either of them before. Defendant and the woman walked to
their car, a red Durango. With the woman driving, the red car sped toward

1 Undesignated statutory references are to the Penal Code.
2
Lewis and her friends, who were standing and talking in the street. The car
almost hit Mitchell, but stopped just short of a collision. Defendant got out of
the front passenger seat, holding a gun, and told Mitchell to move. Mitchell
responded, “If you gonna pull it out, you might as well use it.” Defendant
said, “Oh yeah, Bobby?”
Lewis and Mitchell crouched down behind a nearby parked car and
defendant walked toward them. While Lewis was crouching next to Mitchell,
she saw defendant shoot Mitchell once in the back. After the shot, Lewis ran.
She turned around and saw Mitchell fall to the ground. Defendant stood over
Mitchell and fired another shot at him. Defendant then got back into the
passenger seat of the Dodge and the car sped off.
Lewis called 911 around 3:31 a.m. The prosecution played the
recording for the jury. Lewis reported that Mitchell had been shot twice. She
described the shooter and driver as a “light-skinned male and a female” in a
red Dodge Durango with black rims.
Lewis admitted that she had been drinking prior to the shooting. She
testified that she had less than one drink at Big Shotz and did not have
anything to drink at the house party.
Lewis testified that she was able to see defendant’s face during the
shooting. In addition to identifying defendant at trial, she had identified him
as the shooter at the preliminary hearing and from a picture during an
interview with a detective from the Los Angeles County Sheriff’s Department
(LASD). She told the detective, “I can’t get his face out of my head” and
testified at trial that this was true “[s]till to this day.”
B. Ryann Anderson
Anderson went to Big Shotz on the night of July 1, 2021 with Lewis and
another friend. She had been friends with Mitchell for about 12 years and
saw him outside the bar that night. Anderson also saw Deja Ratliff,
defendant’s wife, at Big Shotz. She had known Ratliff for about eight years.
Anderson claimed that she had never met defendant but knew “of him” as
Ratliff’s husband. Anderson claimed that she did not recall seeing defendant
at the bar that night.
Anderson and her friends stayed at Big Shotz for an hour or two
drinking. As shown on the bar’s surveillance video, she left the bar at 1:32

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a.m. Afterward, they went to a house party, where Anderson consumed more
alcohol. She and her friends stayed outside the house talking. Mitchell was
also with the group.
Anderson recalled seeing Ratliff leave the party, but testified that she
could not recall seeing defendant. She also stated that she did not recall
seeing the shooting or telling detectives the details of the incident. According
to Anderson, she heard someone yell, “There’s a gun,” and everyone started to
run. She saw Mitchell run and hide behind a car, heard two or three
gunshots, then heard a car speeding off. She admitted that she did not want
to be testifying at trial and did not want to be involved.
The trial court found Anderson was being deliberately evasive in her
testimony and admitted her August 6, 2021 phone interview with an LASD
detective as a prior inconsistent statement. During that interview, Anderson
told the detective that she saw both Ratliff and defendant at Big Shotz that
night. She recalled that defendant was wearing a white shirt. She also
thought he might have been wearing a black shirt and jeans, but she was not
sure because she was intoxicated.
At the house party, Anderson saw defendant and Ratliff leave the
house and get into their car, a red Dodge SUV. Ratliff, in the driver’s seat,
accelerated and it seemed like she was going to hit Mitchell. Defendant then
pointed a gun out of the car window. Everyone ran when they saw the gun,
including Mitchell, who ran and ducked behind a car. Anderson saw
defendant get out of his car, walk up to Mitchell, and shoot Mitchell in the
pelvis. Mitchell fell to the ground on his back, then defendant shot him again
in the chest. Defendant and Ratliff drove away.
C. Investigation
Deputies recovered two fired gun cartridge casings from near Mitchell’s
body. Video from a nearby surveillance camera recorded the sound of two
2

gunshots at 3:23 a.m. and then showed two cars, one a red SUV, heading
southbound. Investigating deputies discovered that Ratliff was the
registered owner of a red Dodge SUV.

2 The parties stipulated that the two casings were fired from the same
gun.
4
Video footage from outside the front entrance of Big Shotz showed
Mitchell at the bar around midnight, then Ratliff and defendant leaving the
bar at 1:35 a.m. Deputies also recovered video footage from Mitchell’s cell
phone taken at the house party at 3:16 a.m., about seven minutes before the
shooting. The video showed Mitchell drinking with other individuals, as well
as defendant in the background. In both the video from the bar and from the
house party, defendant was wearing a white t-shirt, a black baseball cap with
an Atlanta Braves logo, and black Adidas basketball shorts, with a black,
single strap backpack across his body.
Analysis of phone records from cell phones belonging to Ratliff and
defendant showed both phones near Big Shotz at 11:54 p.m. on July 1, 2021.
The phones moved away from the Big Shotz area at 1:44 a.m. on July 2,
arriving near the house party address a few minutes later. Both phones
began moving away from the house party location around 3:24 a.m., heading
south.
Several weeks after the shooting, police detained defendant, who was
driving another vehicle in Las Vegas, Nevada. Police recovered a black,
single strap backpack from the floorboard on the driver’s side of the vehicle,
as well as a handgun from the front passenger floorboard. The parties
stipulated at trial that the gun recovered from defendant's car was not the
one fired at Mitchell. Detectives also recovered a black Braves baseball cap
and a pair of black Adidas basketball shorts from the car.
In an interview with an LASD sergeant, defendant identified himself
and his clothing in the surveillance footage from Big Shotz. The sergeant told
defendant he was trying to decide whether to arrest Ratliff as an accessory to
the murder or whether “she’s an innocent bystander, and just a witness.”
Defendant responded, “She’s an innocent bystander. For sure.
Defendant did not testify and presented no other witnesses.
II. Jury Instructions and Closing Arguments
The court instructed the jury 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.” The instruction then listed 14 factors for the jury to
consider in evaluating identification testimony, such as whether the witness

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knew or had prior contact with the defendant, what circumstances affected
the witness’s ability to observe, and whether the witness ever failed to
identify the defendant.
As relevant here, the court also included the factor, “How certain was
the witness when he or she made an identification?” However, the court did
not include the bracketed language following the certainty factor, which
cautions that a witness’s expression of certainty about an identification “may
not be a reliable indicator of accuracy.” (CALCRIM No. 315.) The bracketed
language continues with a list of factors the jury “may consider when
evaluating the significance of the witness’s certainty in the identification,”
including the timing of the witness’s expressed certainty, the level of
confidence expressed, and whether the “police use[d] procedures that
increased the witness’s level of confidence.” (CALCRIM No. 315.)3
In discussions regarding the proposed jury instructions, defense
counsel asked the court to include another bracketed factor—whether the
witness could identify other participants in the crime—as part of CALCRIM
No. 315. The court agreed. Defense counsel raised no objection to the
instruction and made no other requests regarding the language.
In closing, the prosecutor argued that the statements by Lewis and
Anderson recounting the shooting were corroborated by independent
evidence, including the video footage, cell phone records, and physical
evidence. He also pointed out that Lewis consistently identified defendant as
the shooter, quoting her testimony that “I can’t get his face out of my head.”
Defense counsel focused his closing argument on “witness reliability.”
He pointed out inconsistencies in the eyewitness testimonies and argued that
Lewis and Anderson were either mistaken or lying in their identification of
defendant as the shooter.

3 At the time of trial, the bench notes for this instruction advised the
court to include both the certainty factor and the cautionary language,
including “any applicable bracketed factors,” “[w]henever there is evidence a
witness has expressed certainty about an identification.” (CALCRIM No.
315.)
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DISCUSSION
Defendant relies on People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke) to
argue that the trial court committed reversible error by including witness
certainty among the factors listed in CALCRIM No. 315 that juries should
consider in evaluating the reliability of eyewitness identification. He
contends that the court was also required to include the cautionary
instructions advising the jury that a witness’s certainty might not be a
reliable indicator of accuracy, and that its failure to do so violated his due
process rights.
I. Legal Principles
“A jury instruction may ‘“so infuse[ ] the trial with unfairness as to
deny due process of law.”’ However, “‘not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due process violation.
The question is “‘whether the ailing instruction . . . so infected the entire trial
that the resulting conviction violates due process.”’”’” (Lemcke, supra, 11
Cal.5th at p. 655.) “‘It is well established that the instruction ‘may not be
judged in artificial isolation,’ but must be considered in the context of the
instructions as a whole and the trial record.’” (Ibid.)
We review claims of instructional error de novo. (People v. Thomas
(2023) 14 Cal.5th 327, 382; People v. Marquez (2023) 89 Cal.App.5th 1212,
1218.) “When considering a claim of instructional error, we view the
challenged instruction in the context of the instructions as a whole and the
trial record to determine whether there is a reasonable likelihood the jury
applied the instruction in an impermissible manner.” (People v. Houston
(2012) 54 Cal.4th 1186, 1229.) We also presume jurors understand and follow
the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
II. Analysis
As an initial matter, respondent contends that defendant forfeited his
challenge to CALCRIM No. 315 by failing to object in the trial court.
Defendant acknowledges that he did not object but asserts that the rule of
forfeiture does not apply because the instructional error affected his
substantial rights. (See People v. Franco (2009) 180 Cal.App.4th 713, 719.)
Because “‘[a]scertaining whether claimed instructional error affected the
substantial rights of the defendant necessarily requires an examination of

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the merits of the claim” (ibid.), and to forestall defendant’s alternative
contention that any failure to object arose from ineffective assistance of
counsel, we will exercise our discretion to reach the merits of his claim. (See
People v. Torres (2025) 113 Cal.App.5th 88, 92; see also People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6.)
Citing Lemcke, supra, 11 Cal.5th 644, defendant argues that by
instructing the jury with the certainty factor of CALCRIM No. 315 but
omitting the accompanying cautionary language, the court violated due
process because it failed to correct the jurors’ likely impression that the
eyewitnesses’ certainty equated to a greater degree of accuracy in their
identification.
In Lemke, the defendant was convicted of assault and robbery, based
primarily on the testimony of the sole eyewitness, the victim. (Lemcke,
supra, 11 Cal.5th at p. 646.) The trial court gave an instruction to the jury
modeled on a former version of CALCRIM No. 315, including among the
relevant factors the witness’s degree of certainty in making the identification.
On appeal, the defendant argued that this instruction violated his due
process rights to a fair trial, citing empirical research showing that a
witness’s “confidence in an identification is generally not a reliable indicator
of accuracy.” (Id. at p. 655.) By including certainty among the factors to
consider, the defendant argued that the instruction implicitly caused jurors
to “‘place more value than merited on the eyewitness’s confidence.’” (Ibid.)
The Supreme Court rejected the due process claim, concluding that
“considered in the context of the trial record as a whole, listing the witness’s
level of certainty as one of 15 factors the jury should consider when
evaluating identification testimony did not render [the defendant’s] trial
fundamentally unfair” or “otherwise amount to a due process violation.”
(Lemcke, supra, 11 Cal.5th at pp. 646, 661.) The court observed that the
instruction “does not direct the jury that ‘certainty equals accuracy,’” nor does
it “state that the jury must presume an identification is accurate if the
eyewitness has expressed certainty.” (Id. at p. 657.) “Instead, the instruction
merely lists the witness’s level of certainty at the time of identification as one
of 15 different factors that the jury should consider when evaluating the
credibility and accuracy of eyewitness testimony. The instruction leaves the

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jury to decide 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.) The court
further observed that the jury had been instructed that (1) the jurors were
responsible for judging the credibility of witnesses, who sometimes make
honest mistakes about what they remember; (2) the defendant was presumed
innocent; and (3) the prosecution was required to prove the defendant’s
identity as the perpetrator (as well as the elements of the charges) beyond a
reasonable doubt. (Id. at 658.) The court also noted that the defendant “had
the opportunity to cross-examine [the eyewitness] and the investigating
officers regarding her identifications and the procedures used during the
photographic lineups,” and had “elicited numerous inconsistencies in other
aspects of [her] recollection.” (Id. at 660.) Additionally, the defendant was
permitted to introduce expert testimony to combat the potential for jurors to
“infer that certainty is generally correlative of accuracy.” (Id. at pp. 657-658.)
Although it rejected the defendant’s due process claim, the Lemke court
acknowledged that “this form of instruction has the potential to mislead
jurors.” (Lemcke, supra, 11 Cal.5th at p. 665.) As the court explained,
“merely directing the jury to consider a witness’s level of certainty, without
any further caveats, effectively operates to reinforce” the common
misconception that an identification made with certainty is more likely to be
accurate. (Id. at p. 666.) The court therefore exercised its supervisory
powers and directed trial courts to “omit the certainty factor from CALCRIM
No. 315 until the Judicial Council has the opportunity to consider how the
language might be better worded to minimize juror confusion on this point.”
(Id. at p. 669.)4
Guided by Lemcke, we find that the trial court’s giving of the same
instruction did not violate due process. We are not persuaded by defendant’s
argument that the facts of his case are more compelling than those in
Lemcke, such that they rise to the level of a due process violation. Indeed, the

4 Subsequently, the Advisory Committee on Criminal Jury Instructions
revised CALCRIM No. 315 to place the witness certainty factor in brackets,
and added the bracketed language advising that certainty does not always
correlate with accuracy, with the additional factors to consider.
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contrary is true. In Lemcke, a single witness identified the defendant, whom
she had only observed once in a situation of high stress—she saw him for a
moment before he beat her unconscious. (Lemcke, supra, 11 Cal.5th at 650.)
There was no video or other evidence from which the defendant could be
identified. (Ibid.) In this case, crucially, there were two eyewitnesses who
identified defendant, one of whom had known defendant and his wife for
several years. Thus, the “particular concerns” raised in Lemcke are not
present here. (Lemcke, supra, 11 Cal.5th at p. 666 [The certainty instruction
“raises particular concerns in a case like this one, where the conviction was
based almost entirely on the testimony of a single witness who expressed
certainty in her identification and had no prior relationship with the
defendant.”].)
Further, Anderson did not express unmitigated certainty but rather
claimed at trial that she did not see defendant shoot the victim, contrary to
her prior statements. The other eyewitness, Lewis, had the opportunity to
initially observe defendant that night at the bar and then when he left the
party with Ratliff, as distinct from the momentary viewing of the defendant
in a high stress situation by the victim in Lemcke. Thus, the certainty factor
was less relevant, and therefore less concerning, in this case.
There was also significant corroborating evidence here, including
surveillance footage placing defendant at the party with the victim minutes
before the shooting. Video footage showing a red SUV heading south from
the scene, moments after two gunshots were fired, matched cell phone
records for defendant and Ratliff, and records showed Ratliff owned a red
Dodge SUV. The witnesses’ statements were consistent in significant detail,
and they were consistent with the evidence at the scene. The jury could also
consider defendant’s flight from the scene and his statement to police that
Ratliff was an “innocent bystander” as evidence supporting his guilt.
Moreover, defendant “was permitted to present” a substantial case
through cross-examination and argument “to combat” the inference arising
from CALCRIM No. 315 that certainty equates to accuracy. (Lemcke, supra,
11 Cal.5th at p. 658; see also People v. Wilson (2024) 16 Cal.5th 874, 908-909
(Wilson).) Defense counsel vigorously challenged the identifications made by
both Lewis and Anderson, questioning their motives, sobriety, and ability to

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observe the incident, and focusing on the discrepancies between their reports
and the other evidence. He also challenged the timing of the identifications
and questioned the investigating officer’s decision to present a surveillance
photo of defendant to Lewis for identification rather than the standard six-
pack lineup. Although defendant did not call an expert on eyewitness
identification, as the defendant did in Lemcke, there is no evidence that he
was denied the opportunity to do so.
Further, as in Lemcke, witness certainty was one of many factors for
the jury to consider—in defendant's case, CALCRIM No. 315 listed 13 other
factors relevant to the accuracy of an identification. (See Lemcke, supra, 11
Cal.5th at pp. 659–660 [“We therefore fail to see how a due process violation
could be found in a case like this one, where the [certainty] instruction
merely directed the jury that it should consider the eyewitness's level of
certainty as one of 15 enumerated factors.”].) In addition, the jury was
properly instructed on its role in evaluating a witness’s reliability and the
prosecution’s burden of proof. (Lemcke, supra, 11 Cal.5th at pp. 658, 660;
Wilson, supra, 16 Cal.5th at p. 909.) The trial court instructed that the jurors
alone must judge the credibility or believability of witnesses (CALCRIM No.
226); that they should evaluate “anything that reasonably tends to prove or
disprove the truth or accuracy of” the witnesses’ testimony (CALCRIM No.
226); that the prosecution bore the burden of proving guilt beyond a
reasonable doubt, both as a separate instruction (CALCRIM No. 220) and
within CALCRIM No. 315; and that defendant must be presumed innocent
(CALCRIM No. 220).
Thus, in the context of the instructions as a whole and the trial record,
we are not persuaded that the absence of the cautionary language regarding
certainty from CALCRIM No. 315 interfered with the jury’s ability to assess
the reliability of the witnesses’ identification, much less infused the trial with
such unfairness that it violated defendant’s due process rights. (See Lemcke,
supra, 11 Cal.5th at p. 655; Wilson, supra, 16 Cal.5th at p. 909.)
To the extent that defendant also asserts that the instruction was a
violation of state law that did not rise to the level of constitutional error, we
find that any such error was harmless. Instructional error is subject to the
harmless error analysis set forth in People v. Watson (1956) 46 Cal.2d 818.

11
(See People v. Beltran (2013) 56 Cal.4th 935, 955 [“‘[M]isdirection of the jury,
including incorrect, ambiguous, conflicting, or wrongly omitted instructions
that do not amount to federal constitutional error are reviewed under the
harmless error standard articulated’ in Watson.”].) Prejudice is established
when a reasonable probability exists that had the erroneous instruction not
been given, the appellant would have obtained a more favorable outcome at
trial. (See ibid. [error prejudicial only where “reasonably probable that the
jury [ ] was misled to defendant’s detriment”]; see also Wilson, supra, 16
Cal.5th at p. 909.)
Defendant contends the error was prejudicial for three reasons: (1) the
“prosecution’s heavy reliance on eyewitness certainty” during testimony and
in closing arguments; (2) the “lack of safeguards that mitigated prejudice in
Lemcke”; and (3) the “weaknesses of the eyewitness identifications.” We
disagree with all three assertions.
First, although the prosecutor did refer to Lewis’s statement that she
“can’t get [the shooter’s] face out of my head,” he did so only briefly, did not
refer to or quote from CALCRIM 315’s “How certain was the witness when he
or she made an identification?” factor, and did not expressly argue that being
positive (or certain) correlates with accuracy. To the contrary, the prosecutor
focused the bulk of his argument on detailing the ways in which the other
evidence corroborated the eyewitness testimony given by Lewis and
Anderson.
Second, as we have discussed, the only “safeguard” absent from this
case that was present in Lemcke was the introduction of expert testimony on
eyewitness identification. We disagree with defendant's characterization of
that opinion as primarily reliant on the use of expert testimony to counter the
concerns with the certainty instruction. Moreover, this case presents
additional factors lessening the impact of any instructional error, the most
important being testimony by two eyewitnesses, one of whom knew defendant
prior to that night.
Finally, the evidence of defendant's guilt was substantial. Unlike
Lemcke, in this case, one of the eyewitnesses knew defendant prior to the
shooting, and her testimony was largely consistent with the second

12
eyewitness. The eyewitnesses’ testimony was further bolstered by significant
corroborating evidence connecting defendant to the shooting.
Thus, on this record, we cannot say a more favorable result was
reasonably probable for defendant if the trial court had omitted the certainty
factor from CALCRIM No. 315 or given the additional cautionary language.
DISPOSITION
The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COGLIATI, J.*

We concur:

ZUKIN, P. J.

MORI, J.

*
Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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