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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 RUBEN 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 Attorneys General, 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, 

§ 211.)1 It also found true the allegation that defendant 

personally used a handgun during 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. BACKGROUND2

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 armed 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 statutory 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 prosecutor 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.

identified 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 know 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 instructing 

the jury with CALCRIM No. 3153 that it could consider an 

3 CALCRIM No. 315 stated, 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.
4

eyewitness’s level of certainty in evaluating identification 

testimony. He contends the error violated his state and federal 

constitutional rights to due process.

Defendant did not request that the 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. Sanchez (2016) 63 Cal.4th 411 (Sanchez), 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 CALCRIM 

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 was the witness when he or she made an 

identification?”

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.)
5

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.]” (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 contention 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.App.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 hold that defendant forfeited 

appellate 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?”
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IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.