People v. Moye CA3

Filed 1/6/23 P. v. Moye CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer) ----

THE PEOPLE, C095095

Plaintiff and Respondent, (Super. Ct. No. 62-163831B)

v.

DAMION MOYE, JR.,

Defendant and Appellant.

After a jury found defendant Damion Moye, Jr., guilty of robbery, car theft, and two counts of burglary, the trial court sentenced him to 25 years in prison. Defendant argues the trial court violated his right to due process by instructing the jury with CALCRIM No. 315, which, in part, directs the jury to consider an eyewitness’s certainty in evaluating that testimony. Defendant also argues, and the People agree, we should remand this case for resentencing in light of recent amendments to Penal Code 1 section 1170 by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3). We shall remand for resentencing and otherwise affirm the judgment.

1 Undesignated section references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant and an accomplice2 were charged with robbery (count one), grand theft of property (count two), two counts of burglary (counts three & four), and unlawful driving or taking of a vehicle (count five). The information also made the following allegations: another person, who was not an accomplice of defendant, was present in the residence during the commission of count three; counts three and four were not eligible for probation; counts three, four, and five were committed while defendant was released on bail; and defendant had a prior serious or violent felony conviction. We limit our description of the facts to the burglary of N.K.’s residence, as this was the only eyewitness identification issue raised by defendant. On August 21, 2019, at about 2:00 p.m., N.K. returned to her Roseville home and saw a car parked out front. When she went into her house, she heard noises and saw defendant’s accomplice standing in her kitchen. The accomplice yelled to defendant and defendant ran out of N.K.’s bedroom. N.K. asked the first man, “What are you doing here?” and both men ran out the front door to the car parked out front. When N.K. looked outside, she saw the men coming back towards the house. She screamed she would call the police and the men ran back to the car. N.K. took a photo of defendant getting into the driver’s seat of the car and a photo of the car as they left. Those photographs showed much of defendant’s face (although his chin and part of his nose were obscured by the top of the car), defendant’s dreadlocks, and he was wearing a blue hat and a white T-shirt. The photographs also showed the license plate on the car. These photographs were admitted into evidence and published to the jury.