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Filed 8/2/21 P. v. Medina CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.