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Filed 8/9/22 P. v. Marshall CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

NICKOLAS HIAWATHA MARSHALL, 

JR.,

Defendant and Appellant.

E074212

(Super.Ct.No. FVI1502099)

OPINION

APPEAL from the Superior Court of San Bernardino County. Colin J. Bilash, 

Judge. Affirmed.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. 
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Ragland, Joy Utomi, and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and 

Respondent.

A jury convicted Nikolas Marshall of carjacking a woman in the middle of the 

night while she was sleeping in her car. On appeal, Marshall argues his conviction must 

be reversed because (1) the admission of evidence indicating he had been in prison before

the incident was unfairly prejudicial and (2) the use of CALCRIM No. 315, the pattern 

jury instruction on eyewitness identification, violated his due process rights because it 

permits jurors to consider the witness’s level of certainty. We conclude both arguments

lack merit and affirm.

I

FACTS

The victim is 4 feet 8 inches tall and weighs less than 90 pounds. On August 19, 

2015, she was 21 years old and living out of her car, a teal, two-door 1995 Ford 

Thunderbird. She parked for the night in an unfinished housing development in 

Victorville and was awakened around 3:00 a.m. by flashlights and male voices telling her 

she was trespassing and to step out of her car. There were two men standing outside her 

car, a white man and a black man she later identified as Marshall. Thinking they were 

police officers, she attempted to roll down her window but accidentally unlocked the car 

doors instead. Marshall opened the driver’s side door and pulled her out of the car by her 

arm. He told her she had to “pay up” because she was on his family’s land. Marshall’s 
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accomplice took her keys, phone, and wallet from her car and gave the phone’s battery to 

Marshall so she couldn’t call the police.

The victim told the men all she had was her car and the belongings inside and 

begged them not to take either. They told her they needed gas, and she said they could 

siphon some from her car. They looked inside her gas tank and thoroughly searched the 

rest of her car, whispering to each other the whole time.

After a while, the men went over to their car, which was parked about five feet 

away, and had a long discussion with the two people inside. The victim saw this as her 

chance to escape, but when she made a move Marshall told her she wasn’t going 

anywhere. He said his family owned a towing company and were going to have her car 

impounded.

After about 20 minutes, the people in the car drove away. Marshall’s accomplice 

tossed the victim’s keys to Marshall and they got into her car. The victim was able to 

grab one of her bags from the trunk before Marshall got the engine started. He yelled at

her to run, then drove off in the direction the other car had gone.

The victim’s former foster parents lived about a mile away, so she ran to their 

house and used their phone to report the incident. At trial, the prosecution played a 

recording of the call for the jury. The victim described the men who’d stolen her car as a 

white man with blond hair and blue or green eyes and a thin, light-skinned black man, 

about 5 feet 5 inches to 5 feet 8 inches tall, with “shorter” hair than the white man. She 

gave a similar description to the detective who interviewed her a few hours later. That 
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same day, she went to the hospital for her arm, which felt broken where Marshall had 

grabbed it. X-rays revealed no fractures but bruising to the bone.

Three days later, police caught Marshall driving the victim’s car. Her possessions

were gone, the stereo had been replaced, and his photo ID and cell phone were in the 

center console. The San Bernardino District Attorney’s office prepared a six pack 

including Marshall’s photograph, and when they were able to contact the victim several 

days later, she identified Marshall as the man who’d pulled her out of her car. At trial, the 

victim said her identification was based on the facial features of the person in the 

photograph. She said there had been lighting on the street that night, that she had stared at 

him “eye to eye” and gotten a good look at his face.

Marshall’s theory of defense was mistaken identity. He didn’t testify or present 

any witnesses, but during cross-examination and closing argument defense counsel 

emphasized that the photograph the victim selected from the lineup didn’t match her 

initial descriptions of the black perpetrator shortly after the incident. He argued the 

victim’s failure to mention the perpetrator had a mustache or face tattoos to either the 

dispatcher or the detective indicated her photo identification of Marshall was inaccurate.

The jury found Marshall guilty of one count of carjacking. (Pen. Code, § 215, 

subd. (a).) The trial judge, San Bernardino County Superior Court Judge Colin Bilash,

sentenced Marshall to a total term of 40 years to life under the “Three Strikes” law.
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II

ANALYSIS

A. Evidence Code Section 352

During her 911 call that was played for the jury, the victim told the dispatcher that, 

before taking her car, the black perpetrator had said he’d been “in prison” for “21 years.”

The victim added, “so I don’t know if he’s on the run or, I don’t know it was just so 

scary.”

Before trial, defense counsel had objected and asked the judge to redact the entire 

reference to prison as unfairly prejudicial character evidence. The judge said he was 

inclined to redact the reference to the length of the sentence, but found the rest of the 

statement “extremely probative as to the issue of force or fear.” Defense counsel 

responded that he preferred no redaction at all if the judge wasn’t going to remove the 

entire statement. The victim made the statement near the end of the call, on page six of a 

seven-page transcript.

On appeal, Marshall argues the judge should have excluded the statement under 

Evidence Code section 352 as overly prejudicial. He claims it had little to no probative 

value because it was irrelevant to his defense of mistaken identity and was, by contrast, 

extremely prejudicial as evidence of a propensity to commit crime. We disagree.

Evidence that has “any tendency in reason to prove or disprove any disputed fact” 

at trial is relevant evidence. (Evid. Code, § 210.) In general, all relevant evidence is 

admissible, and trial judges have broad discretion to determine relevancy. (Evid. Code, 
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§ 351; see also People v. Carter (2005) 36 Cal.4th 1114, 1166; People v. Alexander 

(2010) 49 Cal.4th 846, 904.) Evidence Code section 352 permits a judge to exclude 

relevant evidence, however, if its probative value is substantially outweighed by its 

tendency to prejudice the defendant. Evidence is prejudicial if it is inflammatory or likely 

to confuse the jury and distract from the real issues on trial. (E.g., People v. Jennings 

(2000) 81 Cal.App.4th 1301, 1314.) We review challenges to evidentiary rulings for

abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

Applying these principles here, we think Marshall has minimized the statement’s 

relevance and overstated its potential to harm his defense. Carjacking is the theft of a 

vehicle from the victim’s immediate presence “accomplished by means of force or fear.” 

(Pen. Code, § 215, subd. (a).) Contrary to Marshall’s claim, his decision to present a 

mistaken identity defense didn’t lessen the prosecution’s burden to prove a carjacking 

had occurred. Rather, by pleading not guilty, he placed every element of carjacking at 

issue in his trial, including fear. (People v. Whisenhunt (2008) 44 Cal.4th 174, 204.) 

“There is no requirement that a defendant dispute [a particular element of the crime] 

before a prosecutor may introduce relevant evidence on the issue. Thus, the prosecution’s 

burden to prove every element of the crime is not relieved by a defendant’s tactical 

decision not to contest an essential element of the offense.” (People v. Escudero (2010) 

183 Cal.App.4th 302, 313 [cleaned up].)

On this record, not only were the means of the taking at issue, they were open to 

reasonable debate. This is because the victim testified that after she was pulled from her 
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car (force) she spent 20 or 30 minutes with the perpetrators before fleeing, a fact the 

defense could argue showed she wasn’t afraid of the group. The fact the victim later told 

police she believed the group’s ringleader may have been an escaped convict tends to 

counter such an inference, thus playing an important role in the prosecution’s case.

And, when compared to its probative value, the statement’s potential to harm 

Marshall’s defense was slight. The statement conveyed only that the perpetrator had 

served a lengthy prison sentence but not why. Thus, the jury was given no details about 

any prior uncharged offenses to inflame their passions or lead them to infer the 

perpetrator had a propensity to commit a violent crime like carjacking. And as a result, 

the cases Marshall relies on to demonstrate prejudice do not help his argument. (See 

People v. Lopez (2011) 198 Cal.App.4th 698 [challenged evidence conveyed the type of 

crime the defendant had previously committed]; McKinney v. Rees (9th Cir. 1993) 993 

F.2d 1378 [challenged evidence conveyed inflammatory details about the defendant’s 

prior weapon use].)

In our view, the most harmful part of the statement was the part the judge offered 

to redact—the reference to a 21-year sentence. Had defense counsel agreed to the 

proposed redaction, the jury would have heard the victim say only that the perpetrator

told her he’d spent some unspecified amount of time in prison. That the jury heard the 

length of the sentence was the result of counsel’s decision, not a judicial ruling.
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Finally, Marshall cannot demonstrate that admission of the statement was 

prejudicial to his case. (People v. Ayala (2000) 23 Cal.4th 225, 271.) This is because even 

in cases where the potential for prejudice is stronger—that is, where evidence of a prior 

conviction for a specific offense is admitted over the defendant’s objection—the evidence 

is not deemed prejudicial if the record “points convincingly to guilt.” (People v. Allen 

(1978) 77 Cal.App.3d 924, 935.) And here, though Marshall’s defense was that the 

prosecution had the wrong person, the evidence of his guilt was strong. Not only was he

caught driving the victim’s car shortly after it was stolen, but the victim—who’d spent a 

significant amount of time in close contact with the carjacker—identified him as her 

assailant. Compared to this inculpatory evidence, the victim’s brief statement to the 

dispatcher is unlikely to have affected the outcome of trial. (People v. Watson (1956) 46 

Cal.2d 818, 835.)

B. CALCRIM No. 315

Because the prosecution presented evidence that the victim had identified Marshall 

in a photographic lineup, the trial judge gave the jury CALCRIM No. 315, the standard 

instruction regarding eyewitness identification. The instruction directs the jury to 

consider up to 15 factors in evaluating eyewitness identification testimony, one of which 

is the witness’s level of certainty. It says in relevant part: “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 
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testimony, consider the following questions: [¶] ... [¶] How certain was the witness when 

he or she made an identification?”1(CALCRIM No. 315.)

Despite failing to object to the instruction or ask the judge to modify it, Marshall 

now argues the part permitting jurors to consider the eyewitness’s level of certainty 

violated his due process rights and prejudicially harmed his case. We conclude Marshall 

forfeited this argument by failing to give the trial judge an opportunity to respond to it 

during trial. (See People v. Sanchez (2016) 63 Cal.4th 411 [challenges to CALCRIM No. 

315 are subject to forfeiture].) But in any event, the argument fails on the merits because 

our Supreme Court recently rejected it in People v. Lemcke (2021) 11 Cal.5th 644, 

concluding CALCRIM No. 315’s certainty factor does not violate due process. (Id. at 

pp. 644, 657 [“we find nothing in [the] instruction on witness certainty that operates to 

‘lower the prosecution’s burden of proof’”].)

1 The other 14 factors are: whether the witness knew or had contact with the 

defendant before the event; how well they could see the perpetrator; the circumstances 

affecting their ability to observe the perpetrator; how closely they were paying attention; 

whether they were under stress when they made the observation; whether they gave a 

description of the perpetrator and, if so, how it compares to the defendant; how much 

time passed between the event and the identification; whether the witness was asked to 

pick the perpetrator out of a group; whether the witness ever failed to identify the 

defendant; whether the witness ever changed their mind about the identification; whether 

the witness is of a different race than the defendant; whether the witness identified other 

participants in the crime; whether the witness identified the defendant in a photographic 

or physical lineup; and any other circumstances affecting the witness’s ability to make an 

accurate identification. (CALCRIM No. 315.)
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III

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.