People v. Weimer CA3

Filed 9/27/21 P. v. Weimer CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C090441

Plaintiff and Respondent, (Super. Ct. No. STKCRFECOD20180008096) v.

MARTIN HAYNES WEIMER,

Defendant and Appellant.

A jury found defendant Martin Haynes Weimer guilty of residential robbery in concert and first degree residential burglary with a true finding that a nonaccomplice was present in the residence. On appeal, defendant argues CALCRIM No. 315 wrongly instructs the jury that one of the factors it could consider in assessing the accuracy of eyewitness identifications is the certainty of the witnesses. He contends this error lowered the prosecution’s burden of proof and violated his due process rights to present a defense. Our Supreme Court recently rejected these identical claims in People v. Lemcke (2021) 11 Cal.5th 644. Defendant also argues his prior prison term enhancements should

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be stricken pursuant to Senate Bill No. 136. We shall affirm the conviction but strike his prior prison term enhancements. BACKGROUND In 2017, victim Greg Alberdi was retired but operating a side business out of his home buying items and selling them on eBay. Alberdi had eight cameras on the outside of his house. He often bought items from a small number of individuals who came to his home, including an individual named Denver Jenkins. On November 28 around 6:00 p.m., Jenkins arrived to sell items to Alberdi at his home. Alberdi indicated he did not want to buy Jenkins’s items, after which Jenkins became irritated and stated, “[s]ome day you’ll get yours.” Approximately two hours later, Alberdi heard a knock on his door, and upon checking the security camera monitor, saw two white men he did not recognize. When Alberdi did not answer the door, the two men left and returned several times. Alberdi noticed both men were wearing orange knit caps similar to the one Jenkins had been wearing earlier. Alberdi began to believe the shorter of the two men was Jenkins, so he cracked the door open, at which point the two men forced the door fully open, knocking Alberdi down. The taller man got on top of Alberdi and put a knife to his throat, at which point Alberdi got “a good look” at him. The taller man held Alberdi down while the shorter man went upstairs. When the shorter man came downstairs, Alberdi saw that he had “pillow cases with stuff in them.” The shorter man grabbed two display cases with jewelry in them and went out the door. As he was leaving, Alberdi determined the shorter man was not Jenkins because his hair color was different.1 After both men had left, Alberdi called 911. Responding officers reviewed the camera footage from the surveillance system with Alberdi. In the subsequent days,