People v. Casillas ( 2021 )

Filed 6/4/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B298388
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA078121)
v.
ERNESTO CASILLAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Alan B. Honeycutt, Judge. Affirmed.
Carlo Andreani, 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.
____________________
* 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.
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.
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unpublished portion of the opinion, we determine that sufficient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
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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 Marcos 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
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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.1
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
1 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.
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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
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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
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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.2 A fourth shot, fired by Deputy Rosales, struck the
2One of the bullets was caught inside the driver’s side door
frame; a second bullet exited the rear window frame; and the third
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bottom molding of the driver’s side door, but did not penetrate the
door.
(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,
bullet struck and damaged the top of the driver’s window, which
was partially rolled down at the time of the shooting.
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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.3 If convicted, the person
will be removed from the country after serving the sentence.
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
3The 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).)
9
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.
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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),4 assault on a peace officer with a semiautomatic
4All further statutory references are to the Penal Code unless
otherwise specified.
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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).)
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.
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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.5
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
5 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.)
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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.”6 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.
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
6 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.
14
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; People v. Kipp (2001) 26
Cal.4th 1100, 1123 [relevance objection]; People v. Greenberger
(1997) 58 Cal.App.4th 298, 352 [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.) 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
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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 (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.)
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.) 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.)
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.) 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
16
does not prohibit such evidence if relevant to some other fact, such
as motive. (Fuiava, supra, 53 Cal.4th at p. 667.) 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.)
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.)
2. People v. Robillard
In People v. Robillard (1960) 55 Cal.2d 88 (Robillard),7 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.) At trial, the
defendant objected to the admission of evidence of his prior offenses
7Disapproved on another ground in People v. Morse (1964) 60
Cal.2d 631, 637, footnote 2, 648-649.
17
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.)
3. People v. Durham
In People v. Durham (1969) 70 Cal.2d 171 (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.) 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.) The
high court found the evidence was relevant and material on the
issues of premeditation, motive, and intent. (Id. at p. 187.) 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.)
D. Limitation on Prior Crimes Evidence as Motive
In People v. Alcala (1984) 36 Cal.3d 604, 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.) The high court explained that
“[c]ommon sense indicates that one who commits a felony upon
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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.) The court, however, rejected “any implication that the prior
crimes were admissible to establish a motive for premeditated
murder.” (Id. at p. 634.) 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.)
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.)
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.)
19
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.) 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.) 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 [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.
20
To the extent Casillas relies on Velasquez v. Centrome, Inc.
(2015) 233 Cal.App.4th 1191, 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.) 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.) 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.) 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.)
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
21
follow instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689,
fn. 17; see also People v. Delgado (1993) 5 Cal.4th 312, 331.)
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 [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 [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].)
22
II
Sufficiency of the Evidence to Support the
Premeditation Finding on Count 1
Casillas argues the evidence was insufficient to support the
jury’s finding that he premeditated the attempted murder, as
charged in count 1. We disagree.
A. Relevant Legal Principles
In a criminal case, the prosecution bears the burden of
proving each and every element of the offense beyond a reasonable
doubt. (Estelle v. McGuire (1991) 502 U.S. 62, 69 [112 S.Ct. 475,
116 L.Ed.2d 385].) In reviewing the sufficiency of the evidence,
“[w]e view the evidence in the light most favorable to the
prosecution, and presume in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.”
(People v. Griffin (2004) 33 Cal.4th 1015, 1028.) We do not reweigh
evidence, reevaluate the credibility of witnesses, or resolve factual
conflicts. (People v. Covarrubias (2016) 1 Cal.5th 838, 890; People v.
Culver (1973) 10 Cal.3d 542, 548.)
Casillas was charged with the willful, deliberate, and
premediated attempted murder of a peace officer, which subjected
him to enhanced penalties. (§ 664, subds. (e) & (f).) An intentional
attempted killing is premeditated and deliberate if it occurred as
the result of preexisting thought and reflection, rather than an
unconsidered or rash impulse. (People v. Boatman (2013) 221
Cal.App.4th 1253, 1264.)
B. Substantial Evidence Supports the Jury’s Finding of
Premeditation
In assessing evidence of premeditation and deliberation, we
consider as a framework for our review: (1) planning activity; (2) a
prior relationship with the victim supporting a motive to kill; and
23
(3) the manner of killing. (See People v. Thomas (1992) 2 Cal.4th
489, 517; People v. Anderson (1968) 70 Cal.2d 15, 26-34.)
Applying this framework, the trial record discloses sufficient
evidence to persuade a rational trier of fact that Casillas
premeditated the attempted murder.
1. Planning
Deputy Rosales testified that during the traffic stop, after
activating her lights, Casillas’ truck pulled over to the curb. As she
began to exit her patrol car, however, the driver started slowly
driving the truck again, proceeded north to an area where a
streetlight was out, and stopped in the middle of the road in front of
her. As Deputy Rosales approached the truck, the windows initially
were rolled up, but as she moved closer toward the driver the
windows were partially rolled down. Casillas had his face pressed
against the driver’s window to cover the lower half of his face. No
voices or movement came from inside the vehicle. A jury reasonably
could have determined that Casillas’ conduct evidenced the type of
tactical planning consistent with an ambush.
Casillas nevertheless argues that there was “ ‘no evidence of
planning’ ” because “[Deputy] Rosales testified that the entire
incident from exiting the vehicle until shots were fired was maybe
five to seven seconds.” We disagree. A jury could have reasonably
determined that Casillas’ planning to avoid arrest began as early as
when Deputy Rosales initiated the stop and continued as he found a
dark spot where he would have the advantage of darkness to kill
her without being observed. Moreover, in assessing premeditation
and deliberation, the “ ‘ “[t]est is not time, but reflection,” ’ ” as
“ ‘ “ ‘[t]houghts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.’ ” ’ [Citation.]”
(People v. Osband (1996) 13 Cal.4th 622, 697.)
24
2. Manner of Killing
Casillas fired several times, from close range, at Deputy
Rosales. The firing of multiple shots at close range strongly
supports a finding of premeditation and deliberation. (People v.
Bloyd (1987) 43 Cal.3d 333, 348 [affirming finding of premeditation
where the victims were shot in the head, one from point-blank
range and the other from a distance of one foot]; People v. Francisco
(1994) 22 Cal.App.4th 1180, 1192 [the manner of killing was
indicative of premeditation and deliberation where five or six shots
were fired from a car five feet from the victim].)
Casillas points out that “[Deputy] Rosales merely sustained
scarring on the elbow and a bruised right hip.” Based on her
injuries, he argues the manner of the shooting “was not such a
particular and exacting manner to indicate a preconceived design to
take [Deputy] Rosales’ life.” The jury, however, reasonably could
have determined that Casillas planned to kill Deputy Rosales, but
that her precautionary measures of shining a spotlight to blind the
driver, approaching cautiously, and drawing her own weapon,
caused Casillas to fire his shots with less than optimal precision. In
other words, the jury was permitted to view the evidence and
circumstances as whole. (People v. Cook (1940) 15 Cal.2d 507, 516
[explaining the jury may determine premeditation from a variety of
circumstances].)
3. Motive
Although there was no personal relationship between Casillas
and Deputy Rosales, motive was not lacking. As discussed above,
the evidence of Casillas’ deportation history supplied a reasonable
inference of his motive to kill a deputy initiating a traffic stop.
In sum, there was sufficient evidence to support the jury’s
finding that Casillas’ act of firing at Deputy Rosales was willful,
deliberate, and premeditated.
25
III
Denial of Requested Instructions on Self-defense
and Imperfect Self-defense
Casillas contends the trial court erred in refusing his request
to instruct the jury on self-defense and imperfect self-defense. We
disagree.
A Proceedings Below
Defense counsel requested the trial court instruct the jury
with CALCRIM No. 505 (Justifiable Homicide: Self-Defense) and
CALCRIM No. 604 (Attempted Voluntary Manslaughter: Imperfect
Self-Defense). Defense counsel argued the jury was not required to
believe all of Casillas’ testimony, and that if they concluded Casillas
was the driver or shooter, self-defense might apply.
In so asserting, counsel noted that Casillas “did say he was
fearful of being shot when he was ducking down.” The court
responded, “I think he was afraid of the fire fight that was going on
and he ducked down or slid down, were his words. But there isn’t
any evidence in this record that would warrant the giving of self-
defense instructions at all.” The court denied the instructional
request, stating that even if the jury disbelieved Casillas’ testimony,
there existed no evidence from which the jury could conclude that
Casillas was afraid he was in “imminent danger of being shot” by
Deputy Rosales.
B. Relevant Legal Principles
A trial court in a criminal case has a duty to instruct on
general principles of law applicable to the case. (People v. Blair
(2005) 36 Cal.4th 686, 744; People v. Valdez (2004) 32 Cal.4th 73,
115.) Self-defense arises when the defendant actually and
reasonably believes in the need to defend against imminent bodily
injury or death. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
26
A killing committed when that belief is unreasonable does not
exonerate the person completely. (Ibid.) Nevertheless, “[u]nder the
doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually, but
unreasonably, believed he was in imminent danger of death or great
bodily injury, the defendant is deemed to have acted without malice
and thus can be convicted of no crime greater than voluntary
manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.)
Although a trial court has a sua sponte duty to instruct on the
theory of imperfect self-defense whenever there is substantial
evidence to support that theory, it has no sua sponte duty to
instruct on self-defense if the defendant is not relying on that
theory at trial, or the theory would be inconsistent with the
defendant’s theory of the case. (People v. Simon (2016) 1 Cal.5th 98,
134; People v. Elize (1999) 71 Cal.App.4th 605, 611-612.) If,
however, a defendant expressly requests the court to instruct on
self-defense, the court must do so if there is substantial evidence to
support the theory. (Simon, supra, at p. 134; Elize, supra, at
pp. 611-612.) Thus, in the present case, whether the trial court
erred in denying the perfect or imperfect self-defense instructions
requested by Casillas turns on whether the record contains
substantial evidence to support either theory. We review this
question de novo. (Simon, supra, at p. 133; People v. Manriquez
(2005) 37 Cal.4th 547, 581, 584.)
C. The Record Lacks Substantial Evidence to Support the
Requested Instructions
In the context of jury instructions, “[s]ubstantial evidence is
evidence sufficient to ‘deserve consideration by the jury,’ that is,
evidence that a reasonable jury could find persuasive.” (People v.
Barton (1995) 12 Cal.4th 186, 201, fn. 8.) Speculative, minimal, or
insubstantial evidence is insufficient to require an instruction.
27
(People v. Mendoza (2000) 24 Cal.4th 130, 174; Barton, supra, at
p. 201.)
According to Casillas, the evidence in the record warranted
his requested self-defense instructions because the jury could have
rejected all or part of his testimony, and concluded he was the
shooter. The jury also could have rejected Deputy Rosales’
testimony, and based on the circumstantial evidence, further
concluded that Deputy Rosales, either intentionally or accidentally,
initiated the gunfire. As explained below, the “evidence” cited by
Casillas in support of his instructional error claim falls squarely
within the realm of speculative and/or minimal evidence. On this
point, People v. Sinclair (1998) 64 Cal.App.4th 1012 (Sinclair), is
instructive.
In Sinclair, the defendant was arrested after fleeing the
country for a shooting that took place at a tavern. (Sinclair, supra,
64 Cal.App.4th at p. 1017.) At trial, the defendant testified to
several threatening interactions with patrons at the bar and
testified he fled after hearing a shot ring out; he was unarmed and
did not see who was shot. (Ibid.)
On appeal, he argued the jury should have received heat of
passion and imperfect self-defense voluntary manslaughter
instructions. The appellate court queried whether there was
circumstantial evidence entitling the defendant to instructions on
voluntary manslaughter. (Sinclair, supra, 64 Cal.App.4th at
p. 1016.) Based on his testimony denying he shot the victim, or that
he even was armed, “none of the alleged evidence of heat of passion
and imperfect self-defense was of the type ‘that a reasonable jury
could find persuasive.’ [Citation.]” (Id. at p. 1020.) The court
observed: “We do not mean to suggest that every time the accused
completely denies under oath any participation in the charged
homicide, there is no duty to instruct on lesser and necessarily
28
included offenses. . . . [T]he accused may confess or make
admissions which indicate the fatal shooting occurred, for example,
in the heat of passion.” (Ibid.) The court concluded there was no
such conflicting evidence in the record. (Ibid.)
Here, the logic of Sinclair applies with equal force. Casillas
denied he was the shooter, and presented no other evidence to
support the inference that he (or Henry, the alleged driver) feared
imminent harm from Deputy Rosales.
Specifically, Casillas testified that when Henry stopped the
truck, “[I]t all happened very quickly.” Casillas “was only able to
see that [Henry] wanted to hide the back [sic] where he had the
weapon; he had the weapon, and then suddenly the shots.” When
asked if he could tell from “where the shots came from,” Casillas
responded, “No. At the time, I don’t know. I know it was—it was
loud. The shots were loud, and the only thing that I could do at the
time was to slide.” When asked if he was “aware at some point that
Henry was shooting also,” Casillas responded, “I don’t know.”
Counsel followed up by asking, “Did you hear shots from inside the
vehicle, outside the vehicle, or both, or you don’t know?” Casillas
responded, “They were just repeated shots. I don’t know where they
came from, inside or outside. They were just shots. I just slid
down.”
Casillas relies on Deputy Rosales’ testimony that she did not
recall firing her weapon to argue that she may have fired first. This
assertion is premised on a misapprehension of the trial record.
Deputy Rosales testified that as she approached the vehicle, and
saw the driver’s face pressed against the glass, she drew her
weapon and said, “Let me see your hands.” Before she completed
her command, shots were fired and she was struck. Her next
memory was that she was standing behind the truck. Although she
did not recall firing her weapon, she did recall that she was fired
29
upon first and only thereafter lost track of events. As such,
Casillas’ assertion that Deputy Rosales’ gun “accidentally”
discharged when she drew her weapon, is based on nothing more
than pure speculation. (People v. Young (2005) 34 Cal.4th 1149,
1200 [stating that a “trial court need not give instructions based
solely on conjecture and speculation”].)
As further support for his theory, Casillas relies on testimony
by a bystander that he heard two shots, a short pause, and then
three additional shots. However, the bystander’s testimony was far
from clear on this point and, in any event, would neither contradict
nor undermine Deputy Rosales’ testimony.8
Deputy Rosales herself testified that she heard two muffled
shots and then felt pain. Thus, assuming that two shots were fired,
followed by a break, this could simply mean that the driver fired
two shots and then Deputy Rosales fired back while the driver fired
an additional shot. Casillas’ supposition that Deputy Rosales was
first to fire by accidentally discharging her firearm is not only
speculative but contrary to Deputy Rosales’ testimony that she only
“panicked” after hearing shots and being struck by gunfire.
Furthermore, he points to no forensic or expert testimony in the
trial record to support such a conclusion.
Viewed against the backdrop of all the evidence presented at
trial, Casillas’ proposed theories give rise, at best, to a mere
8 The bystander initially testified that he heard “four or five
shots” and that he thought there was a break after the first two.
However, when asked if the shots sounded like they were from the
same or different guns, he responded that they all sounded “the
same.” When again questioned on the topic, he testified he thought
he heard “around five to six shots” but he could not remember, and
that he believed there was an interval at some point between the
shots, but wasn’t “a hundred percent” sure.
30
“possibility” that the driver fired his weapon because he believed he
was in imminent fear for his life. That, however, is not enough. In
adopting the substantial evidence standard regarding instructional
duties, our high court expressly disapproved of any suggestion “that
jury instructions must be given whenever any evidence is
presented, no matter how weak.” (People v. Flannel (1979) 25
Cal.3d 668, 684, fn. 12; see also People v. Young, supra, 34 Cal.4th
at p. 1200.) To assign error in this case would require us to wholly
contravene this principle, which we decline to do.
IV
CALCRIM No. 315
The trial court instructed the jury pursuant to CALCRIM
No. 315, the standard Judicial Council instruction regarding
eyewitness identification. The instruction directs the jury to
consider a number of factors in evaluating eyewitness testimony,
including the witness’s level of certainty.9 Casillas argues the
inclusion of this factor violated his due process rights. Respondent
counters that the issue is forfeited by Casillas’ failure to seek
modification of the instruction at trial; and the claim has been
rejected by the California Supreme Court. We agree with
respondent on both points.
A. Relevant Law
The predecessor instruction to CALCRIM No. 315 is CALJIC
No. 2.92, which instructs the jury to consider any factor that
9CALCRIM No. 315 reads in relevant part: “You have heard
eyewitness testimony identifying the defendant. As with any other
witness, you must decide whether an eyewitness gave truthful and
accurate testimony. [¶] In evaluating identification testimony,
consider the following questions: [¶] . . . [¶] How certain was the
witness when he or she made an identification?”
31
“bear[s] upon the accuracy of the witness’ identification of the
defendant, including, . . . [¶] . . . [¶] [t]he extent to which the
witness is either certain or uncertain of the identification.” At the
time of trial in this case, the California Supreme Court had upheld
the inclusion of the certainty factor in CALJIC No. 2.92 on at least
three occasions. (People v. Sánchez (2016) 63 Cal.4th 411, 461-463
(Sánchez); People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232; see
People v. Wright (1988) 45 Cal.3d 1126, 1144.)
In Sánchez, the court acknowledged that “some courts have
disapproved instructing on the certainty factor in light of the
scientific studies.” (Sánchez, supra, 63 Cal.4th at p. 462.)
Nonetheless, in People v. Lemcke (May 27, 2021, S250108) ___
Cal.5th ___ [2021 WL 2150610] (Lemcke), our high court
reexamined the propriety of CALCRIM No. 315, and concluded that
inclusion of the certainty factor did not violate the defendant’s due
process rights when considered in the context of the trial as a
whole. (Lemcke, supra, at pp. ___ [2021 WL 2150610 at pp.*1, *8-
*11].) In reaching this conclusion, the court noted the instruction
did not direct the jury that “ ‘certainty equals accuracy’ ”; the
instruction included the eyewitness’s level of certainty as one of 15
enumerated factors; the defendant was permitted to call an
eyewitness identification expert who explained the limited
circumstances when certainty and accuracy are positively
correlated; and the instruction expressly stated that the prosecutor
must establish the defendant’s identity as the perpetrator beyond a
reasonable doubt. (Id. at pp. ___ [2021 WL 2150610 at pp. *1, *8-
*9].)10
10 Nevertheless, the high court referred the matter to the
Judicial Council to evaluate how the instruction might be modified
to avoid juror confusion on the issue of witness certainty, and
exercised its supervisory powers to direct trial courts, in the
32
B. Casillas is Not Entitled to Relief
1. The Claim is Forfeited
Casillas interposed no objection to the instruction below, and
the trial court was under no obligation to either give or modify
CALCRIM No. 315 on its own motion. (See People v. Cook (2006) 39
Cal.4th 566, 599 [no sua sponte duty to give the standard
instruction on eyewitness identification]; People v. Ward (2005) 36
Cal.4th 186, 213 [no sua sponte duty to modify the standard
instruction on eyewitness identification].) Thus, like the defendant
in Sánchez, Casillas forfeited any objection to the court’s
instruction. (See Sánchez, supra, 63 Cal.4th at p. 461 [“If defendant
had wanted the court to modify the [certainty] instruction, he
should have requested it. The trial court has no sua sponte duty to
do so”].)
2. The Claim Lacks Merit
Even assuming the claim had been preserved, we conclude it
has no merit.
First, as in Lemcke and Sánchez, the trial court’s instruction
did not deny Casillas the opportunity to challenge the accuracy of
the identification by Ramos and Deputy Rosales, but merely
advised the jury that certainty was one of many factors to consider
in evaluating identification testimony. (Lemcke, supra, ___ Cal.5th
___ [2021 WL 2150610 at pp. *8-*9]; Sánchez, supra, 63 Cal.4th at
p. 462.) The instruction explicitly advised the jury that the
prosecution had the burden of proving the perpetrator’s identity
beyond a reasonable doubt. (CALCRIM No. 315 [“The People have
the burden of proving beyond a reasonable doubt that it was the
interim, to omit the certainty factor from the instruction unless a
defendant requests otherwise. (Lemcke, supra, ___ Cal.5th ___
[2021 WL 2150610 at pp. *2, *15, *16].)
33
defendant who committed the crime. If the People have not met
this burden, you must find the defendant not guilty”].)
Second, as in Lemcke, the jury heard detailed testimony from
eyewitness identification expert Dr. Eisen, regarding the dangers of
eyewitness identification testimony, including the lack of
correlation between certainty and accuracy outside of pristine, non-
suggestive identification procedures. As in Lemcke, the jury was
instructed with CALCRIM No. 332 that it “ ‘must consider’ ” the
expert’s opinion. (Lemcke, supra, ___ Cal.5th ___ [2021 WL
2150610 at p. *9].)
Finally, two eyewitnesses (Deputy Rosales and Ramos)
identified Casillas with a firearm and identified his truck. The two
incidents occurred within 12 hours of each other, and in reasonably
close geographical proximity of one another. Casillas admitted at
trial that he was in the truck during the incident involving Deputy
Rosales, but claimed someone else was the driver. However,
Deputy Rosales neither saw nor heard anyone else in the truck,
while Casillas’ girlfriend, Castellanos, testified that when she spoke
with Casillas after the incident, he gave her no indication that
anyone had been with him that night.
In light of this record, we are confident that the inclusion of
the certainty factor did not result in prejudicial error. (See Lemcke,
supra, ___ Cal.5th ___ [2021 WL 2150610 at p. *16] [concluding the
defendant failed to establish that inclusion of the certainty factor
“violated his due process rights or otherwise constituted error under
the circumstances” of the trial as a whole]; Sánchez, supra, 63
Cal.4th at p. 462 [discerning no prejudice to the defendant in light
of the overall strength of the evidence and because the instruction
did not equate certainty with accuracy]; see also People v. Wright,
supra, 45 Cal.3d at pp. 1144-1145 [concluding any error in failing to
give the instruction requested by the defense on eyewitness factors
34
was harmless in light of, inter alia, the overall strength of the
evidence and the fact that factors relating to the reliability of the
eyewitness identification were brought to the jury’s attention by
cross-examination and arguments of counsel].)
V
Prosecutorial Error During Closing Argument
Casillas contends the prosecutor’s “repeated legal
misstatements,” “dilutions” of the reasonable doubt standard, and
“profane vouching” during closing argument violated his
constitutional rights. Respondent counters the claims are forfeited
due to trial counsel’s failure to object to the lines of argument
challenged by Casillas. We agree the objection was forfeited. We
also conclude that even if the claims were not forfeited, any
misstatements by the prosecutor were harmless in view of the
weight of the evidence.
A. Casillas Has Forfeited His Claims of Prosecutorial
Error
Casillas acknowledges defense counsel interposed no objection
below. “ ‘As a general rule a defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the
impropriety.’ [Citation.]” (People v. Valencia (2008) 43 Cal.4th 268,
281.) Citing People v. Hill (1998) 17 Cal.4th 800, 820 and People v.
Alvarado (2006) 141 Cal.App.4th 1577, 1585, Casillas claims that
“forfeiture does not apply when, as here, an admonition would not
have cured the harm caused by the misconduct.” Casillas, however,
provides no argument explaining why an admonition would have
failed to cure any purported harm. (Cf. Hill, supra, at pp. 820-822
[providing an analysis of why an objection by counsel would have
35
been futile under the circumstances, including reference to the trial
court’s critical comments in response to prior objections]; Alvarado,
supra, at p. 1585 [concluding that any curative admonition would
have failed to cure the harm due to the egregious nature of the
vouching by the prosecutor].) In failing to argue these exceptions,
Casillas has forfeited any assertion of error regarding the
challenged statements. (People v. Hoyt (2020) 8 Cal.5th 892, 942-
943.)
B. Harmless Error Analysis
“Prosecutorial misconduct can result in reversal under state
law if there was a ‘reasonable likelihood of a more favorable verdict
in the absence of the challenged conduct’ and under federal law if
the misconduct was not ‘harmless beyond a reasonable doubt.’ ”
(People v. Rivera (2019) 7 Cal.5th 306, 334.) Here, the evidence of
guilt was so strong that applying even the more stringent standard,
any error was harmless.
As previously discussed, the crux of the case centered on the
identity of the gunman. Two witnesses, Ramos and Deputy
Rosales, saw Casillas driving a truck and holding a gun only hours
between the two incidents. Although Deputy Rosales had a
somewhat obstructed view of Casillas, she had direct eye contact
with him. She neither saw nor heard anyone else in the truck.
Ramos’s identification was extremely credible because he
recognized Casillas immediately upon seeing his picture in the
newspaper. The evidence strongly supported the conclusion that
the truck involved in both incidents belonged to Casillas. Given his
criminal and deportation history, Casillas had a compelling motive
to kill Deputy Rosales. Thus, “[w]hether considered under this
state’s ‘reasonable likelihood of a more favorable verdict’ standard
or the federal ‘harmless beyond a reasonable doubt’ standard,” any
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prosecutorial error was harmless. (People v. Rivera, supra, 7
Cal.5th at p. 335.)11
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
11 In a one-line argument, Casillas claims that “defense
counsel’s deficient failure to object [to the prosecutor’s argument]
unreasonably denied the effective assistance constitutionally
guaranteed by . . . the Sixth and Fourteenth Amendments.” In view
of the “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” (Strickland v.
Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052, 80 L.Ed.2d
674]), and the lack of reversible error, we reject Casillas’ conclusory
claim.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
37