People v. Montoya CA2/5

California Court of Appeal Feb 16, 2021 No. B305399Unpublished

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Holding. The court held that the defendant forfeited his challenge to the trial court's use of CALCRIM No. 315 by failing to request a modification or object to the instruction at trial.

Issues

Whether the trial court erred in instructing the jury with CALCRIM No. 315 regarding eyewitness certainty.
Whether the defendant forfeited his challenge to the jury instruction by failing to object or request modification at trial.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We hold that defendant forfeited appellate review of his challenge to CALCRIM No. 315.”

“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.”

Filed 2/11/21 P. v. Montoya CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305399

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA119142) v.

NATHAN RUBEN MONTOYA,

Defendant and Appellant.

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.

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

People v. Montoya CA2/5

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305399

NATHAN RUBEN MONTOYA,

I. INTRODUCTION

II. BACKGROUND2

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III. DISCUSSION

IV. DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

RUBIN, P. J.

MOOR, J.

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