Opinion
B298388
06-04-2021
The PEOPLE, Plaintiff and Respondent, v. Ernesto CASILLAS, Defendant and Appellant.
Carlo Andreani, San Francisco, 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, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II, III, IV, and V of the Discussion.
Carlo Andreani, San Francisco, 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, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
FEDERMAN, J. A jury convicted Ernesto Casillas of attempted premeditated murder and assault on a peace officer, assault with a firearm, and two counts of possession of a firearm by a felon. The jury found true allegations that Casillas personally used and discharged a firearm, and Casillas admitted he suffered a prior strike within the meaning of the Three Strikes Law. The trial court sentenced Casillas to a determinate term of 18 years, followed by a consecutive term of 55 years to life.
Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On appeal, Casillas raises five issues, contending that: (1) the trial court erred in admitting evidence of Casillas’ immigration status and two prior deportations; (2) the evidence was insufficient to support the jury's finding that the attempted murder was premeditated; (3) the trial court erred in denying Casillas’ requested self-defense and imperfect self-defense instructions; (4) the trial court violated Casillas’ due process rights when it instructed the jury, pursuant to CALCRIM No. 315, to consider an eyewitness's level of certainty; and (5) the prosecutor committed prejudicial misconduct during closing argument.
In the published portion of this opinion, we conclude the trial court properly admitted evidence of Casillas’ immigration status and deportation history on the limited issue of motive. In the unpublished portion of the opinion, we determine that sufficient evidence supports the jury's premeditation finding, and that the record is devoid of any evidence that would warrant the self-defense instructions requested by Casillas. Discerning no cognizable or reversible error in Casillas’ remaining claims, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The charges arose out of two separate incidents that occurred within 12 hours of each other. In the first incident, Casillas pointed a firearm at a civilian motorist; in the second incident, Casillas shot at a deputy sheriff during a traffic stop.
A. Prosecution Evidence
1. May 5, 2010: Counts 4 and 5
a. Assault on Marco Ramos
On May 5, 2010, at approximately 2:30 p.m., Marco Ramos was driving alone off Imperial Highway in an industrial area near his workplace. In his rearview mirror he saw a black Chevrolet truck with a gold logo approaching at a fast rate. The truck almost hit the rear of his vehicle, and then "tailgat[ed]" him in the left lane. Ramos noticed only one person, who he later identified as Casillas, in the truck.
Ramos opened his window, slowed down, put his head out, and said, "What are you doing, moron?" Casillas stopped and sped up intermittently, pulled up next to Ramos, and said, "I will shoot you, motherfucker." Ramos, said, "Okay. Go ahead and shoot me if you want to shoot me." Ramos saw Casillas was alone in the truck. Within seconds, Casillas displayed a gun over the steering wheel.
Casillas moved to the right lane and put his driver's side window halfway down. He showed Ramos the gun again, said he would shoot Ramos and asked him, "what's [your] problem?" Ramos got a good, clear look at Casillas through his passenger-side window, and saw his entire face.
Casillas called Ramos a "motherfucker" and then aggressively sped off, running through a red light. Ramos memorized part of the truck's license plate and continued driving, believing it was just another incident on the streets of Los Angeles. b. Police Investigation
The next day, Ramos read the Daily Breeze newspaper, which included a photograph. He immediately recognized Casillas from the photograph as the person who engaged him in the driving altercation the previous day. Ramos subsequently went to the Carson Station with the news article and was interviewed by detectives. Detectives showed Ramos a six-pack of photographs, and he picked out photograph No. 5 (a photograph of Casillas) right away. Ramos was 100 percent sure No. 5 was the person who pointed the gun at him. The parties stipulated that the same photograph was used in the newspaper and the six-pack photo spread, although the shirt was digitally altered for the photo spread.
At trial, nine years later, Ramos was asked if he saw the person depicted in position 5 of the photo spread in court. Ramos responded, "That's hard to say," then pointed to Casillas and said, "I believe it's him.
Deputies showed Ramos pictures of Casillas’ truck. The parties stipulated that Ramos said he believed the wheels were slightly different than the photographs, but thought the truck generally looked the same. Ramos told detectives that he remembered the partial license plate of the vehicle as "8WU." The license plate of Casillas’ truck, as reported in the Daily Breeze article, was 8W15896.
2. May 6, 2010: Counts 1 through 3
a. The Shooting of Deputy Lorena Rosales
On May 5, 2010 (the Cinco de Mayo holiday), Los Angeles County Sheriff's Department Deputy Lorena Rosales worked alone on the 10:00 p.m. to 6:00 a.m. shift.
At around 1:30 a.m., Deputy Rosales saw a pickup truck straddling and driving between two lanes. She followed the truck for less than a block. It stopped at a red light, but she could not see through the rolled-up, tinted windows to determine how many people were inside. She ran the license plate, 8W15896, to find the registered owner.
When the light turned green, the driver turned north onto Western Avenue. Deputy Rosales followed and activated her red and blue lights. The truck pulled over to the curb. She stopped and began to exit her patrol car; however, the driver started slowly driving away. She returned to her patrol car and followed the truck.
The truck drove north, turned east onto 257th Street, and then stopped in the middle of the road in front of Deputy Rosales’ vehicle. She stopped the patrol car about a car length behind the truck and turned on her spotlight, pointed it at the driver's outside mirrors to blind the driver's eyes, and approached the truck. All the truck windows remained rolled up. The street light in the area was out and the street was very dark. As she approached the vehicle, Deputy Rosales took her gun out of its holster. She held a flashlight in her right hand, her gun in her left hand and her left arm down at her side. The bed of the truck was unoccupied and all the windows were rolled half-down.
Deputy Rosales did not approach all the way to the driver's window because she did not feel safe crossing the area where the backseat was located. She looked to the driver's window from a position at the beginning of the back seat. She was standing three or four feet away and saw the driver. Deputy Rosales observed no one else in the truck. The driver, later identified by her as Casillas, appeared to be a Hispanic male in his early 30s, with short hair, thick eyebrows, and a "dull look on his face." His face appeared to be deliberately pressed up against the window to cover the lower half of his face. Deputy Rosales had eye contact with Casillas and he was staring at her. Based on the way Casillas was looking at her, she knew something was "terribly" wrong. She started to raise her gun and said, "Let me see your hands." Before she could complete the command, however, she heard two muffled sounds, apparently gunshots, and immediately felt pain in her right elbow and right hip. She knew she had been shot and panicked. Her next memory was of standing behind the pickup truck. Deputy Rosales could not remember if she fired any shots.
The truck remained for a few seconds, and then drove off. Deputy Rosales sustained a through-and-through gunshot wound which left scarring on her right elbow and a five-inch bruise on her right hip.
Deputy Rosales read an article in the Daily Breeze newspaper later that day entitled "Suspect in Lomita Deputy Shooting I.D'd." She observed Casillas’ photograph and immediately "knew that was him." She covered the lower half of the face, which she had not seen, and confirmed Casillas was the person who shot her.
Deputy Rosales’ weapon, a nine-millimeter Beretta, was subsequently examined. Two bullets were missing from the gun. At trial she agreed that it was a fair assumption that two rounds were fired from her gun, although she had no memory of firing those rounds.
On May 8, 2010, Detective Adam Torres and his partner interviewed Deputy Rosales. She told Deputy Torres that the back window of the suspect's truck was rolled halfway down, and testified to the same at the preliminary hearing. At trial, however, the parties stipulated that the back window did not roll down, but was a "pop-out" window. Deputy Rosales agreed that if the rear window was a pop-out window, then she must have been mistaken when she believed she was looking through a window that was halfway rolled down. Nevertheless, she still recalled looking in to view the backseat of the truck and explained that, with her "powerful" flashlight, she "should have been able to see at least a little bit." She agreed she could not conclusively determine whether or not someone was in the backseat.
Deputy Rosales identified Casillas in court. She previously had told officers she was 100 percent certain Casillas was the driver of the truck.
b. Police Investigation
(i) Ballistics and forensic evidence
On May 6, 2010, at 4:00 a.m., Sheriff's Deputy Antoinette Martinez responded to the vicinity of 257th Street and Western Avenue, where a black Chevy Silverado truck, license number 8W15896, was parked. A note written on a paper towel on the front windshield stated, "Please do not park here." The driver's window was down. The truck was not running, had no keys, and had damage to the driver's side door frame, which appeared to be two bullet strikes. Damage consistent with a bullet strike was observed below the driver's door.
On the floor behind the driver's seat officers found a partially empty bottle of tequila and a glass pipe for smoking methamphetamine. Nakia Berry, a forensic identification specialist, testified that Casillas’ fingerprint matched a fingerprint located on the truck's rearview mirror.
Phil Teramoto, a firearms expert, located casings of two different calibers at the scene of the shooting: two nine-millimeter casings fired from Deputy Rosales’ Beretta semi-automatic pistol, and three .380 auto cartridge casings fired from a different semi-automatic firearm. He located four areas of damage to the truck caused by bullet strikes. Three shots were fired from the interior of the truck. A fourth shot, fired by Deputy Rosales, struck the bottom molding of the driver's side door, but did not penetrate the door.
One of the bullets was caught inside the driver's side door frame; a second bullet exited the rear window frame; and the third bullet struck and damaged the top of the driver's window, which was partially rolled down at the time of the shooting.
(ii) Testimony of Casillas’ girlfriend
In February 2010, Brenda Castellanos began a dating relationship with Casillas. Casillas was from Guadalajara, Mexico, and told Castellanos he was in the United States illegally. Casillas drove a black Chevy Silverado truck. Casillas told Castellanos he liked to drink beer and tequila and he used crystal methamphetamine. His cell phone contained a picture of himself holding a gun.
On May 5, 2010, at approximately 9:15 p.m., Casillas called Castellanos and asked to borrow money. Shortly thereafter, when he arrived at her home, he was alone in his truck. He picked up the money and left.
At about 1:50 a.m., Casillas called Castellanos again. Based on his agitated and emotional voice, she believed he was crying. Casillas told her he "fucked up," and was "going to get caught." When Castellanos asked what he was talking about, he said he could not tell her and asked her to pick him up. She refused and suggested that he get a cab. In response, Casillas said, "I guess I can't count on you." There was no indication anyone else was with him. Castellanos never heard from him again.
(iii) Search of Casillas’ residence
On May 7, 2010, officers served a warrant for a search of the home where Casillas rented a room. Officers found a resident alien card with Casillas’ photograph, but bearing the name Juan Francisco Gonzalez "Martin." They also found a certificate of title to a 2005 Chevy and a registration for the vehicle in Casillas’ name, which matched the license plate number of the truck located after the shooting.
(iv) Prior deportations and extradition
Dino Pivano, an agent working for Immigration and Customs Enforcement, testified that the name "Juan Francisco Gonzales" was not associated with the resident alien card number found in the home where Casillas lived. The database with Casillas’ alien registration number showed two prior registrations on July 27, 2006, and June 6, 2008. The parties stipulated that Casillas was deported on each of those dates. Casillas’ file did not show that he was authorized to reenter the United States.
Agent Pivano explained that, generally, the first time an individual enters the country without authorization they will not be prosecuted for illegal entry. When an alien is deported, he is warned of the legal consequences should he return to the United States without authorization. A deported person who reenters the country illegally generally will be prosecuted for illegal reentry and will face a sentence of two to 20 years in prison. A person is more likely to be prosecuted for illegal reentry if he was previously convicted of a felony. If convicted, the person will be removed from the country after serving the sentence.
The parties stipulated that Casillas previously had been convicted of a felony for purposes of counts 3 and 5 (felon in possession of a firearm). (Former Pen. Code, § 12021, subd. (a)(1).)
Casillas was extradited from Mexico to the United States in May 2015.
B. Defense Evidence
1. Eyewitness Identification Expert
Dr. Mitchell Eisen testified as a defense expert on eyewitness memory and suggestibility. He explained that divided attention limited the amount of information that a person can take in and did not always form good long-term memories. Factors affecting attention included weapon focus at the time of an event, as well as any trauma experienced by the witness. Furthermore, the association between quick, confident decision-making and accuracy was only true when nonsuggestive, pristine identification procedures were used.
2. Casillas’ Testimony
Casillas testified that he had worked at various jobs in Los Angeles, using a green card with his photograph and another person's name and identification number. He admitted sustaining two prior burglary convictions. He also admitted sending Castellanos a photograph of a gun to impress her.
During the afternoon of May 5, 2010, Casillas was celebrating Cinco de Mayo and had some beers at a bar. As to Ramos, Casillas testified he "had never seen that man before."
That evening, Casillas went to the apartment complex of a man named "Henry" to buy some cocaine or crystal methamphetamine. Casillas drove Henry to a location where Henry purchased $10 worth of narcotics. They drove to a park, ingested the methamphetamine, and drank tequila. Henry suggested he could find more drugs.
Henry insisted on driving Casillas’ truck. Henry purchased an additional $20 worth of drugs. He handed Casillas the narcotics and continued to drive, turning left near Western Avenue.
As they approached Western, the light turned red. A patrol car approached, activated its lights, honked loudly, and pursued them. Henry stopped the truck. Casillas had the drugs in his hands and was trying to use them. Casillas was high on methamphetamine and under the influence of tequila.
The next events unfolded "very quickly." Casillas tried to hide the methamphetamine, but then decided to remain still. Henry had a gun, and tried to hide it. Suddenly Casillas heard gun shots. He threw himself down in the truck, and his head ended up next to Henry's feet. He heard repeated shots, but could not determine whether they came from inside or outside the truck. He tried to hide as much as possible so he would not get shot. Henry sped up very quickly, kept going, and eventually stopped the truck and took off running down an alley. A few seconds later, Casillas ran in a different direction. He hid, and then called Castellanos. He told her that "something bad ... had happened," and asked if she could come pick him up. She did not do so. Casillas heard sirens everywhere and ran. He caught a cab, and later met his cousin, Ismael, in Compton. He then fled to Mexico.
Although Casillas previously testified he did not know where the shots had been fired from, when defense counsel asked why he thought he was in trouble if he was "just the passenger," Casillas responded, "Because a weapon had just been fired from my truck on a traffic stop." He was an undocumented immigrant, had been deported twice, and assumed he would be blamed, charged, and imprisoned.
Casillas testified that at the time of the shooting he was seated in the front passenger side of the truck, not in the driver's seat, and he did not shoot Deputy Rosales.
C. Charges and Jury Verdicts
An information filed on September 28, 2015, charged Casillas with premeditated attempted murder ( Pen. Code, §§ 187, subd. (a), 664 ; count 1), assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2); count 2), assault with a firearm (§ 245, subd. (a)(2); count 4), attempted first degree burglary ( §§ 459, 664 ; count 6), and three counts of possession of a firearm by a felon (former § 12021, subd. (a)(1) ; counts 3, 5, and 7). The information also alleged that Casillas personally used and discharged a firearm (§§ 12022.5, subds. (a) & (d), 12022.53, subds. (b)-(d)), and that he had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
All further statutory references are to the Penal Code unless otherwise specified.
Prior to trial, the court dismissed counts 6 and 7 at the request of the prosecution. On April 10, 2019, the jury found Casillas guilty as charged in counts 1 through 5, and found all firearm allegations to be true. Casillas admitted the prior strike allegation.
The trial court denied Casillas’ motion for new trial, and sentenced him to a determinate term of 18 years, followed by a consecutive term of 55 years to life in state prison.
DISCUSSION
I
Admission of Evidence of Immigration Status
Casillas contends the trial court erred in admitting evidence of his immigration status and two deportations, arguing that such evidence was both irrelevant and unduly prejudicial, and violated his constitutional right to a fair trial. We disagree. As explained below, the evidence was strongly probative on the question of motive and the trial court took steps to minimize the potential for any undue prejudice.
A. Proceedings in the Trial Court
At a pretrial hearing, the prosecutor raised the question of the admissibility of Casillas’ status as an undocumented immigrant and his prior deportations.
The prosecutor explained that this case concerned the shooting of a deputy "basically out of nowhere on a traffic stop," raising the question of what would motivate someone to commit such a shooting. The prosecutor stated that although motive is not an offense element, "it is about as close to an element as it gets." On the issue of prejudice, the prosecutor argued it was unlikely the jury would convict Casillas of these serious charges simply because of his immigration status.
Defense counsel disagreed, arguing that evidence of immigration status elicited very strong reactions from jurors and was "prejudicial in most cases," particularly those involving serious charges. Counsel emphasized that Evidence Code section 351.4 recently was enacted to recognize and address such prejudice, and that the evidence in the case was simply "too prejudicial" for admission. The court acknowledged that Casillas was stopped not by immigration officials, but by a deputy sheriff. It found the prior deportations were "very probative of the circumstances involved in the case and the explanation as to why this event might have occurred." The court stated that while "[i]t's a very controversial issue right now, ... if we're looking at the issue of motive and is it relevant ... there's no question that it's relevant." Thus, the ultimate question was whether "the probative value [was] substantially outweighed by the risk of undue prejudice in this case." The court noted that Casillas’ flight to Mexico was admissible, and thus the jury would hear that he disappeared for "a period of almost [10] years" and was "ultimately arrested in Mexico." The court told the parties it would instruct the jury that Casillas’ immigration status could only be used "for the very limited purpose of motive," and was "not to be used for propensity." As such, the court ruled the evidence of Casillas’ immigration status, and his prior deportations, would be admitted.
Evidence Code section 351.4 went into effect on May 17, 2018, and provides as follows: "(a) In a criminal action, evidence of a person's immigration status shall not be disclosed in open court by a party or his or her attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person's immigration status. [¶] (b) This section does not do any of the following: [¶] (1) Apply to cases in which a person's immigration status is necessary to prove an element of an offense or an affirmative defense...." (Evid. Code, § 351.4, added by Stats. 2018, ch. 12, § 2.)
The jury was instructed, pursuant to CALCRIM No. 372, that "[i]f the defendant fled immediately after the crime was committed, that conduct may show that he was aware of [his] guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." On appeal, Casillas does not assign any error to the trial court's admission of evidence regarding his flight from the country.
During closing statements, the prosecutor argued as follows: "[In] 2010, the defendant is a meth addict and an alcoholic. He's been deported two times, and he knows that if he is caught again, even here, he's likely to be sent to prison, fined, and deported again, especially if he is high, if he has a gun with him, the circumstances that night.... Now he's in the car thinking they got me for the Ramos thing. I got a gun in the car. I got tequila in the car. I got a pipe in the car. I'm not going, they're not catching me. I am not going to get stopped."
Prior to deliberations, the trial court provided the jury with the following limiting instruction, which was a modified version of CALCRIM No. 316 : "If you find that a witness has been convicted of a felony, committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony, whether the defendant had a motive to commit the crimes charged, or as an element in [c]ounts 3 and 5 as directed in the instruction for those crimes. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that makes the witness less believable. Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." B. Standard of Review
On appeal, we review the trial court's rulings on the admission and exclusion of evidence for abuse of discretion. ( People v. Harrison (2005) 35 Cal.4th 208, 230, 25 Cal.Rptr.3d 224, 106 P.3d 895 ; People v. Kipp (2001) 26 Cal.4th 1100, 1123, 113 Cal.Rptr.2d 27, 33 P.3d 450 [relevance objection]; People v. Greenberger (1997) 58 Cal.App.4th 298, 352, 68 Cal.Rptr.2d 61 [Evid. Code, § 352 objection].)
"The trial court has broad discretion in determining the relevance of evidence [citations], but lacks [the] discretion to admit irrelevant evidence." ( People v. Crittenden (1994) 9 Cal.4th 83, 132, 36 Cal.Rptr.2d 474, 885 P.2d 887.) The trial court also has discretion to exclude otherwise admissible evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ( Evid. Code, § 352.)
C. Motive Evidence Pertaining to the Shooting of Law Enforcement Officers
In this case, the evidence was not simply that Casillas was an undocumented resident, but that he twice had been deported and was facing up to 20 years in prison if found in the United States. The prosecution argued this evidence was relevant to explain why he might be motivated to shoot and kill a law enforcement officer during a routine traffic stop. In light of these factual circumstances, we find instructive the opinions issued by our high court discussing the admission of prior crimes evidence as relevant to motive when a defendant is accused of shooting a law enforcement official.
1. People v. Fuiava
In People v. Fuiava (2012) 53 Cal.4th 622, 137 Cal.Rptr.3d 147, 269 P.3d 568 ( Fuiava ), two sheriff's deputies were patrolling a neighborhood when they saw two young men. After one of the men appeared to throw an object into a nearby yard, the deputies pulled over. As one of the deputies exited the patrol car, he heard a series of gunshots, and crouched down and drew his weapon. He heard another series of gunshots and found his partner lying on the ground near the patrol car. His partner subsequently died from two gunshot wounds. ( Id. at pp. 636-637, 137 Cal.Rptr.3d 147, 269 P.3d 568.)
The trial court permitted the prosecution to present in its case-in-chief evidence concerning the defendant's two prior convictions for assault with a firearm and his parole status at the time of the shooting. ( Fuiava , supra , 53 Cal.4th at p. 666, 137 Cal.Rptr.3d 147, 269 P.3d 568.) The evidence included testimony from the defendant's parole agent, who stated he had stressed the firearms prohibition with the defendant and told him that if he violated his parole, he would be returned to prison. ( Id. at p. 640, 137 Cal.Rptr.3d 147, 269 P.3d 568.)
On appeal, the defendant argued the admission of this evidence was an abuse of discretion and violated his constitutional right to a fair trial. ( Fuiava , supra , 53 Cal.4th at p. 666, 137 Cal.Rptr.3d 147, 269 P.3d 568.) The high court disagreed.
In so concluding, the court first explained that while Evidence Code section 1101 prohibits admission of evidence regarding prior misconduct to establish a defendant's character or disposition, it does not prohibit such evidence if relevant to some other fact, such as motive. ( Fuiava , supra , 53 Cal.4th at p. 667, 137 Cal.Rptr.3d 147, 269 P.3d 568.) Under the latter scenario, the trial court " ‘has the discretion to admit such evidence after weighing the probative value against the prejudicial effect.’ " ( Ibid . ) The court acknowledged, however, that because other crimes evidence " ‘can be so damaging,’ " the evidence should be excluded unless the connection between the evidence and " ‘ "the ultimate fact in dispute" ’ " is clear. ( Ibid . ) The court found such a connection because the prosecution's theory was that the defendant knew that possession of firearms was both illegal and a violation of his parole status, and that he shot at the deputies "in order to avoid being apprehended and returned to prison." ( Id . at p. 668, 137 Cal.Rptr.3d 147, 269 P.3d 568.)
Furthermore, the court noted that the trial court limited the potential prejudicial effect of the prior crimes evidence by instructing the jury that the evidence could be considered only for the limited purpose of establishing the defendant's motive, and, thus, by negative implication, that it would be improper to consider this evidence to establish the defendant's criminal propensity. ( Fuiava , supra , 53 Cal.4th at p. 669, 137 Cal.Rptr.3d 147, 269 P.3d 568.)
2. People v. Robillard
In People v. Robillard (1960) 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295 ( Robillard ), the defendant was on probation for prior offenses and had committed other recent offenses for which he had not yet been apprehended. He was driving a stolen car with stolen license plates when he was stopped by a police officer. While the officer waited for information from headquarters about the status of the vehicle, the defendant shot and killed the officer. ( Id. at pp. 92-93, 10 Cal.Rptr. 167, 358 P.2d 295.) At trial, the defendant objected to the admission of evidence of his prior offenses and his probationary status. On appeal, the high court held the evidence was properly admitted because it "was relevant to establish [the] defendant's motive for the killing, the prosecution's case being based on the theory that [the] defendant had premeditatedly killed [a police officer] in order to avoid apprehension for such crimes." ( Id . at p. 100, 10 Cal.Rptr. 167, 358 P.2d 295.)
Disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637, footnote 2, 648-649, 36 Cal.Rptr. 201, 388 P.2d 33.
3. People v. Durham
In People v. Durham (1969) 70 Cal.2d 171, 74 Cal.Rptr. 262, 449 P.2d 198 ( Durham ), two defendants were stopped during a routine traffic stop and one of them shot and killed a police officer. ( Id. at pp. 176-178, 74 Cal.Rptr. 262, 449 P.2d 198.) On appeal, the defendant who shot the officer argued it was error to admit evidence of his parole status and the joint criminal activities of the defendants during the three weeks preceding the incident. The high court disagreed, observing the defendant "overlook[ed] the great probative value of the evidence throwing light upon his state of mind at the moment of confrontation." ( Id . at pp. 187-188, 74 Cal.Rptr. 262, 449 P.2d 198.) The high court found the evidence was relevant and material on the issues of premeditation, motive, and intent. ( Id . at p. 187, 74 Cal.Rptr. 262, 449 P.2d 198.) In so concluding, the high court cited and discussed several cases involving the shooting of law enforcement officers, including Robillard , wherein prior crimes evidence was deemed relevant to explain why defendants might be motivated to shoot and kill law enforcement officials, i.e., to avoid detection and arrest and " ‘ "the severe punishment meted out to them which the law affixes to the crime." ’ " ( Id . at p. 189, 74 Cal.Rptr. 262, 449 P.2d 198.)
D. Limitation on Prior Crimes Evidence as Motive
In People v. Alcala (1984) 36 Cal.3d 604, 205 Cal.Rptr. 775, 685 P.2d 1126, our high court confronted the admission of prior crimes evidence in a case where the defendant, who kidnapped the victim, subsequently murdered her. ( Id. at pp. 614-616, 634, 205 Cal.Rptr. 775, 685 P.2d 1126.) The high court explained that "[c]ommon sense indicates that one who commits a felony upon another wishes to avoid its detection. That may lead him to the calculated murder of his victim. Here, the jury could consider the possibility that [the] defendant killed [the victim] in cold blood to prevent her from naming him as her kidnaper." ( Id . at pp. 634-635, 205 Cal.Rptr. 775, 685 P.2d 1126.) The court, however, rejected "any implication that the prior crimes were admissible to establish a motive for premeditated murder." ( Id. at p. 634, 205 Cal.Rptr. 775, 685 P.2d 1126.) Though the prosecutor argued the defendant's prior crimes increased his incentive to eliminate the victim as a witness (since they might result in more severe punishment for the current offense), the high court found this argument inappropriate: "We cannot accept the notion that evidence of past offenses is admissible on this basis. If it were, one's criminal past could always be introduced against him when he was accused of premeditated murder in the course of a subsequent offense. The accused's mere status as an ex-criminal would place him under an evidentiary disability not shared by first offenders. The prejudicial effect of the prior-crimes revelations would vastly outweigh their slight and speculative probative value. It is just such dangers which the restrictions on evidence of past offenses seek to avoid." ( Id. at p. 635, 205 Cal.Rptr. 775, 685 P.2d 1126.)
The high court, however, expressly distinguished cases such as Robillard and Durham , explaining that "[i]n cases like Durham and Robillard , the motive of escape is central, and it can be shown in no other way." ( People v. Alcala , supra , 36 Cal.3d at p. 635, 205 Cal.Rptr. 775, 685 P.2d 1126.) However, in the case before it, "the issue of witness elimination was before the jury in any event; speculation that [the] defendant was also worried about the implications of his past record is remote and cumulative." ( Ibid . ) The high court concluded the trial court erred in admitting the prior-crimes evidence. ( Ibid . )
E. The Trial Court Did Not Abuse Its Discretion in Admitting the Challenged Evidence
As in Fuiava , Robillard , and Durham , in this case a shooting occurred after a law enforcement officer sought to stop or detain an individual. Like the defendants in those cases, Casillas had a history of criminal misconduct with a potential for long-term incarceration, which could explain his motive for shooting Deputy Rosales.
" ‘[The] general test of admissibility of evidence in a criminal case is whether it tends logically, naturally, and by reasonable inference, to establish any fact material for the People or to overcome any material matter sought to be proved by the defense.’ [Citation.]" ( Durham, supra, 70 Cal.2d at p. 186, 74 Cal.Rptr. 262, 449 P.2d 198.) While motive is not an element the prosecution must prove, " ‘[p]roof of the presence of motive is material as evidence tending to refute or support the presumption of innocence.’ " ( People v. Scheer (1998) 68 Cal.App.4th 1009, 1017, 80 Cal.Rptr.2d 676.) This is because "[m]otive is an intermediate fact which may be probative of such ultimate issues as intent [citation], identity [citation], or commission of the criminal act itself [citation]." ( Ibid. )
The likelihood that Casillas’ apprehension would result in a substantial period of incarceration was probative in establishing that Deputy Rosales posed a serious threat to his freedom. (See People v. Heishman (1988) 45 Cal.3d 147, 169, 246 Cal.Rptr. 673, 753 P.2d 629 [citing Robillard and Durham as examples wherein the high court "allowed evidence of outstanding offenses for which the defendants feared apprehension," and explaining that cases requiring similarity between the prior crime and the instant offense were wholly inapplicable in such circumstances].) Thus, contrary to Casillas’ assertion, the challenged evidence was indeed relevant and substantially probative. To the extent Casillas relies on Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 183 Cal.Rptr.3d 150, that reliance is entirely misplaced. Velasquez involved a product-related personal injury action. The trial court determined the plaintiff's immigration status was relevant to damages because it could impact whether or not he qualified for a lung transplant. Based on this initial ruling, the court informed prospective jurors about the plaintiff's immigration status during voir dire. ( Id . at pp. 1202-1205, 183 Cal.Rptr.3d 150.) At trial, it emerged that the policy regarding transplant approvals did not allow consideration of residency or immigration status. The trial court thereafter concluded that the plaintiff's immigration status was wholly irrelevant to the action. ( Id. at p. 1208, 183 Cal.Rptr.3d 150.) The court excluded any evidence on the issue, but denied the plaintiff's motion for mistrial.
On appeal, the Court of Appeal concluded the evidence was irrelevant and prejudicial because it could have improperly influenced the jury's evaluation of causation, the critical issue in the case. ( Velasquez v. Centrome, Inc. , supra , 233 Cal.App.4th at pp. 1214-1215, 183 Cal.Rptr.3d 150.) The court reasoned that a juror could have found the plaintiff never would have become sick but for his presence in the country illegally. ( Id . at p. 1216, 183 Cal.Rptr.3d 150.)
Here, in contrast, the evidence most certainly was relevant, and the trial court mitigated any potential prejudice with its limiting instructions. In particular, the trial court instructed pursuant to a modification of CALCRIM No. 316 that the evidence could be considered to show that Casillas had a motive to murder Deputy Rosales, but not to show any criminal propensity. The trial court also instructed the jury with CALCRIM No. 200, which states that jurors should not be moved by bias or prejudice, including any bias based on "nationality" or "national origin." We presume jurors follow instructions. ( People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, 286 Cal.Rptr. 801, 818 P.2d 84 ; see also People v. Delgado (1993) 5 Cal.4th 312, 331, 19 Cal.Rptr.2d 529, 851 P.2d 811.)
Furthermore, we note that the prosecutor did not attempt to use the evidence to an improper advantage, but rather cautioned the jury not to use Casillas’ previous deportations as a reason to find him guilty, or as a basis to find him not guilty out of sympathy.
In the present case, Casillas was an admitted ex-felon, had twice been deported, and was facing a sentence of up to 20 years if arrested and presented for prosecution. Casillas was stopped by a deputy for a traffic stop while in possession of a firearm and, according to his own testimony, methamphetamine. In light of these facts, Casillas was fully aligned with the defendants in Fuiava , Robillard , and Durham , who, facing the threat of potential incarceration due to a history of prior misconduct, opened fire on law enforcement officials to effectuate their escape. Based on the significant probative value of the challenged evidence and the trial court's limiting instruction to avoid its potential prejudice, the trial court did not abuse its discretion in admitting the evidence of Casillas’ immigration status. For the same reasons, we find no merit in Casillas’ contention that the admission of the evidence violated his constitutional right to a fair trial. ( People v. Albarran (2007) 149 Cal.App.4th 214, 229-230 & fn. 13, 57 Cal.Rptr.3d 92 [the admission of evidence violates due process only if no permissible inference may be drawn from it]; see also People v. Riggs (2008) 44 Cal.4th 248, 292, 79 Cal.Rptr.3d 648, 187 P.3d 363 [to the extent the defendant's constitutional claim was "merely a gloss on the objection raised at trial," it was without merit because the trial court did not abuse its discretion in admitting the evidence].)
See footnote *, ante .
DISPOSITION
The judgment is affirmed.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.