Filed 2/11/21 P. v. Montoya CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

NATHAN RUBE N MONTOYA,

Defendant and Appellant. B305399

(Los Angeles County Super. Ct. No. KA119142)

APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven Blades, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle , and Viet H. Nguyen,
Deputy Attorney s Gene ral, for Plaintiff and Respondent.2 I. INTRODUCTION

A jury convicted defendant and appellant Nathan Ruben
Montoya of two counts of second degree robbery

. (Pen. Code

, § 2 11.) 1 It also found true the allegation that defendant
personally used a handgun d uring the commission of the
robberies. (§§ 1203.06, subd. (a)(1); 12022.5, subd. (a); &
12022.53, subd. (b).) The trial court sentenced defendant to 19
years, four months in state prison. On appeal, defendant
contends the court erred in instructing the jury with CALCRIM
No. 315 that it could consider an eyewitness’s level of certainty in
evaluating identification testimony. We affirm.

II. BACKGROUND 2

At about 3:15 p.m. on August 18, 2018, G

. S

. was at a hair

salon on Peck Road in El Monte. Two men ar med with guns

entered the salon . One wore a bandana over his face, the other’s
face was not covered. The men told everyone

— there were five

women in the salon

— not to move. The man without a bandana
told everyone to “give everything [they] had.” The men took $200

from the salon ’s cash register.

The man without a bandana came to within four feet of

G. S

. , pointed a gun at her, and took her purse. She got a good

look at his face. G.S. then identified defendant in court as the

1 All further st atutory citations are to the Penal Code.

2 Because defendant’s claim on appeal concerns the testimony of a single eyewitness, we focus our statement of facts on that witness’s testimony.3

man without a bandana. The p rosecutor asked G.S. how

confident she was that defendant was the man without a
bandana. She responded, “I can’t forget his face.”
After the robbery, the police showed G.S. a six

- pack
photographic lineup containing a photograph of defendant. G.S.

identi fied defendant as one of the robbers

. The prosecutor and

G.S. then had the following exchange :

“ Q. How confident were you when you identified space

no. 1 to Detective [Francisco] Ramirez?

“A. I saw him from very close.
“Q. So my question, though, is , when you saw his picture
here, how confident were you that that was him?

“A. Because I was sure that it was him.
“Q. I’m not asking why you knew it was him. What I mean
is, how confident were you? Did you think it might be someone
else or did you k now this was him?

“A. I knew that it was him.
“Q. Was there any doubt in your mind that it was him?

“A. No doubt.
“Q. Why not?

“A. Because I was sure that it was him.”

III. DISCUSSION

Defendant contends that the trial court erred in instructin g the jury with CALCRIM No. 315 3 that it could consider an

3 CALCRIM No. 315 stated, in relevant part: “You have heard eyewi tness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony.4

eyewitness’s level of certainty in evaluating identification
testimony. He contends t he error violated his state and federal
constitutional rights to due process.
Defendant did not request that t he trial court modify

CALCRIM No. 315 to remove the challenged certainty question.
The Attorney General argues that defendant’s failure to request
modification forfeited his challenge on appeal. We agree.

In People v. S a nchez (2016) 63 Cal.4th 411 ( S a nc hez )

, the
California Supreme 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 analogue to CA LCRIM

No. 315. ( Sanchez, supra , 63 Cal.4th at p. 461 .) The Supreme

Court stated: “ The Attorney General argues the claim is forfeited

“In evaluating identification testimony, consider the following questions : “[¶]

. . . [¶]
“How certain w as the witness when he or she made an
identification?”

4 As given in S a nchez

, 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

crime s 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 . . . .” ( S a nchez , supra , 63 Cal.4th at p. 461, fn. 7.)5

because defendant did not request that CALJIC No. 2.92 be

modified. We agree. If defendant had wanted the court to mod ify
the instruction, he should have requested it. The trial court has
no sua sponte duty to do so. [Citations.]” ( Ibid .) We are bound
by the Supreme Court’s holding. ( Auto Equity Sales, Inc. v.

Superior Court (1962 ) 57 Cal.2d 450, 455 .) 5

Defendant’ s c ontention that instructing the jury with
CALCRIM No. 315 violated his federal constitutional right to due
process is likewise forfeited by his failure to object to the
instruction on that ground in the trial court. (See People v. Rodriguez (2019) 40 Cal.A pp.5th 194, 199

– 200 [“Rodriguez
argues CALCRIM No. 315 violates his Fourteenth Amendment

due process rights because it tells the jury to consider eyewitness
certainty. Rodriguez ’ s counsel did not object at trial. This is

forfeiture ”]

. ) Accordingly, we h old that defendant forfeited
appella te review of his challenge to CALCRIM No. 315.

5 The Supreme Court has granted review in People v. Lemcke (June 21, 2018, G054241 ) [nonpub. opn.]

, review granted
October 10, 2018, S250108 , where the issue under consideration
is: “ Does instructing a jury with CALCRIM No. 315 that an eyewitness ’ s level of certainty can be considered when evaluating the reliability of the identification violate a defendant ’ s due process rights? ”6 IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUB I N, P. J.

MOOR, J.