Filed 8/2/21 P. v. Medina CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and 

 Respondent,

v.

OSCAR MEDINA,

Defendant and 

 Appellant.

 B306086

 (Los Angeles County

 Super. Ct. No. LA089772)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Gregory A. Dohi, Judge. Affirmed.

Helen Hoeffel, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, William H. Shin and Roberta L. Davis, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

A jury convicted Oscar Medina of second degree robbery 

and assault with a firearm on January 24, 2020 based on an 

incident involving two victims on December 30, 2018. On appeal, 

Medina’s only argument is that the trial court violated his federal 

and state due process rights when it instructed the jury with 

CALCRIM No. 315 that it could consider an eyewitness’s level of 

certainty in evaluating the reliability of the witness’s 

identification of the defendant.

When Medina filed his opening brief here, People v. Lemcke 

(2021) 11 Cal.5th 644 (Lemcke), in which our Supreme Court was 

considering the same contention in the context of another 

defendant’s case, had not yet been decided. Medina explained in 

his opening brief that he had “raise[d] this challenge to preserve 

it should the Supreme Court . . . agree that certainty should not 

be a factor in evaluating eyewitness identification evidence and 

that such instruction is error and violates a defendant’s due 

process rights.” The Supreme Court issued its opinion in Lemcke

on May 27, 2021, rejecting the contentions Medina makes here. 

Based on Lemcke, we will affirm the trial court’s judgment.

BACKGROUND

Just after 1:00 a.m. on December 30, 2018, an individual 

that the victims identified as Medina confronted Marco Delgado 

and Maria Franco as they walked to Franco’s car. Delgado and 

Franco testified that Medina ran toward them and with a weapon 

in his hand, which Delgado and Franco believed to be a pistol, 

repeatedly demanded Franco’s purse. Delgado and Franco each 

testified that Medina threatened to shoot if Franco didn’t 

surrender her purse. (Delgado estimated that Medina was 10 to 

11 feet from the pair when he demanded Franco’s purse; Franco 

estimated he was six to seven feet away.) Franco gave the 
3

assailant her wallet and he approached the pair and took the 

wallet from her hand. As he fled, the pair memorized the license 

plate of the car the assailant drove away from the scene. Delgado 

wrote down the license plate number as the pair drove to the 

police station after the incident. The license plate number 

corresponded to a vehicle Medina rented on December 26, 2018 

and was scheduled to return on December 31, 2018. 

Delgado and Franco each testified that they saw the 

assailant clearly. They each identified Medina as their assailant, 

both from a photographic lineup the day after the attack and in 

open court during Medina’s trial. Delgado and Franco each 

testified that they were certain that the person they identified—

Medina—was the person who had robbed them. 

The People charged Medina by information with second 

degree robbery against Franco (Pen. Code, § 211),

1 assault with a 

firearm against Medina (§ 245, subd. (a)(2)), and possession of a 

firearm by a felon (§ 29800, subd. (a)(1)). The information alleged 

that Medina had personally used a firearm in the commission of 

the robbery and assault counts. It also alleged that he had been 

convicted of two or more serious or violent felonies under sections 

667, subdivision (d) and 1170.12, subdivision (b) both for 

purposes of the “Three Strikes” law (§§ 667, subds. (b)-(j), 

1170.12) and for purposes of the five-year prior serious felony 

enhancement under section 667, subdivision (a)(1).

At trial, in addition to the factual testimony from Delgado 

and Franco, the jury heard from Dr. Mitchell Eisen, who testified 

as a defense expert witness about the “current state of the 

science” regarding the accuracy of eyewitness identifications. Dr. 

1 Further unspecified statutory references are to the Penal 

Code.
4

Eisen testified about false identifications and some of their 

causes, how the memory processes information, and how the way 

information is presented can promote responses in one direction 

or another. He also testified about the characteristics of what he 

termed a “strong recognition experience,” and how in that kind of 

circumstance, “choosing tends to happen quickly and with a high 

degree of confidence.” Even in that circumstance, Dr. Eisen 

explained, there are other factors that may reduce the reliability 

of what appeared to be a “strong recognition experience.” Dr. 

Eisen’s comprehensive testimony explored a variety of factors 

that might affect reliability of eyewitness identification 

testimony. He also testified in depth about how eyewitness 

confidence develops in one direction or another and the 

relationship between witness confidence in an identification and 

the accuracy of the identification. 

Among other instructions, the trial court instructed the 

jury with the following instruction taken from CALCRIM No. 

315: “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 

the perpetrator? [¶] What were the circumstances affecting the 

witness’s ability to observe, 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 
5

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? [¶] Was the witness able to identify the defendant in a 

photographic or physical lineup? [¶] 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.” Medina did not object. The trial court also 

gave a variety of other standard jury instructions, including 

instructions regarding reasonable doubt (CALCRIM No. 220), 

direct and circumstantial evidence (CALCRIM No. 223), 

sufficiency of circumstantial evidence (CALCRIM No. 224), 

factors to consider when determining witness credibility 

(CALCRIM No. 226), and expert witness testimony (CALCRIM 

No. 332).

The jury found Medina guilty of second degree robbery and 

assault with a firearm, but deadlocked on the felon in possession 

of a firearm count. The jury also deadlocked on the allegation 

that Medina had personally used a firearm in the commission of 

the second degree robbery and assault with a firearm counts. 

After a bifurcated trial on Medina’s priors, the jury found true 

the allegations that Medina had suffered two prior convictions for 

serious or violent felonies. 

The trial court granted Medina’s motion to strike under 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and 
6

struck one of Medina’s prior convictions for purposes of the Three 

Strikes law. The court sentenced Medina to the high term of five 

years on the robbery count, doubled to 10 years under the Three 

Strikes law. The trial court further imposed an additional term 

of five years for each of the priors under section 667, subdivision 

(a). The trial court imposed the middle term of one year (doubled 

to two under the Three Strikes law) for the assault with a firearm 

count. In all, the trial court sentenced Medina to 22 years in 

state prison. 

Medina filed a timely notice of appeal. 

DISCUSSION

In October 2018, the Supreme Court granted review in 

Lemcke to determine whether “ ‘instructing a jury with 

CALCRIM No. 315, which directs the jury to consider an 

eyewitness’s level of certainty when evaluating an identification, 

violate[s] a defendant’s federal and state due process rights[.]’ ” 

(Lemcke, supra, 11 Cal.5th at p. ___.) In his opening brief here, 

Medina explains that he “raise[d] this challenge to preserve it 

should the Supreme Court . . . agree that certainty should not be 

a factor in evaluating eyewitness identification evidence and that 

such instruction is error and violates a defendant’s due process 

rights.” 

Medina raised the same arguments here that our Supreme 

Court considered in Lemcke. The Supreme Court issued its 

opinion in Lemcke on May 27, 2021, rejecting the same 

arguments Medina makes here. We must follow Lemcke.

In Lemcke, the Supreme Court explained that the 

defendant in that case had not challenged the procedures officers 

used to conduct photographic lineups or the admission of any 

identification evidence. “Instead, his sole claim is that the trial 
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court violated his right to due process by listing the witness’s 

level of certainty as one of 15 factors the jury should consider 

when evaluating eyewitness identification testimony.” (Lemcke, 

supra, 11 Cal.5th at p. ___.) Like the arguments Medina makes 

here, the defendant’s “claim [in Lemcke was] based on empirical 

research showing that confidence in an identification is generally 

not a reliable indicator of accuracy.” (Ibid.)

Dr. Mitchell Eisen, the expert witness here, was also the 

expert in Lemcke. (Lemcke, supra, 11 Cal.5th at p. ___.) The 

testimony he gave in the Lemcke matter was in lockstep with the 

testimony he gave in Medina’s case. (Ibid.)

The Lemcke court explained that in reviewing instructional 

error for a due process violation, 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.” ’ ” 

(Lemcke, supra, 11 Cal.5th at p. ___.)

In Lemcke, as here, the defendant argued that CALCRIM 

No. 315’s “instruction on witness certainty . . . operates to ‘lower 

the prosecution’s burden of proof.’ ” (Lemcke, supra, 11 Cal.5th at 

p. ___.) The Supreme Court rejected that contention generally 

and in the context of the record on appeal.

“As [People v. Sánchez (2016) 63 Cal.4th 411] explained 

with respect to CALJIC No. 2.92’s similarly worded instruction, 

the instruction does not direct the jury that ‘certainty equals 

accuracy.’ [Citation.] Nor does the instruction state that the jury 

must presume an identification is accurate if the eyewitness has 

expressed certainty. [Citation.] 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. 
8

The instruction leaves the 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.” (Lemcke, supra, 11 

Cal.5th at p. ___.)

The Supreme Court noted that there, as here, the 

defendant was “permitted to present expert witness testimony to 

combat [an] inference” that “certainty is generally correlative of 

accuracy.” (Lemcke, supra, 11 Cal.5th at p. ___.) The Court 

continued: “Nothing in CALCRIM No. 315 suggested that the 

jury should ignore Eisen’s expert opinion on witness certainty. 

To the contrary, the jury received a separate instruction on 

expert testimony (CALCRIM No. 332 [also given here]) directing 

that it ‘must consider th[ose] opinions.’ . . . The jury also received 

a general instruction[—CALCRIM No. 226, which was also given 

here—]on witness testimony explaining that ‘[p]eople sometimes 

honestly . . . make mistakes about what they remember’ and that 

the jurors were responsible for ‘judg[ing] the credibility or 

believability of the witnesses.’ The jury ‘thus remained free to 

exercise its collective judgment to reject what it did not find 

trustworthy or plausible.’ ” (Id. at p. ___.)

Medina has not presented any argument that would 

warrant a departure from Lemcke. As did the Supreme Court, 

when we consider CALCRIM No. 315 “ ‘ “in the context of the 

instructions as a whole and the trial record[,]” ’ we conclude that 

listing the witness’s level of certainty as one of 15 factors the jury 

should consider when evaluating an eyewitness identification did 

not render [Medina’s] trial fundamentally unfair or otherwise 

amount to a due process violation.”
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DISPOSITION

The trial court’s judgment is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.