People v. Medina CA2/1

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306086
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. LA089772)
v.
OSCAR MEDINA,
Defendant and
Appellant.
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.
____________________________
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
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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.
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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
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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
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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.
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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.
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