8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 DOUGLAS LOUIS POPKE, Case No. 1:24-cv-00779-JLT-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION 13 v. FOR WRIT OF HABEAS CORPUS
14 CHANCE ANDES, 15 Respondent.
16 17 Petitioner Douglas Louis Popke is a state prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons discussed herein, the 19 undersigned recommends denial of the petition for writ of habeas corpus. 20 I. 21 BACKGROUND 22 On March 25, 2022, Petitioner was convicted by a jury in the Mariposa County Superior 23 Court of attempted first-degree murder of a peace officer (count 1) with a personal discharge of a 24 firearm enhancement and assault with an assault weapon on a peace officer (count 2) with a 25 personal use of a firearm enhancement. (2 CT1 381–82.) On August 30, 2022, Petitioner was 26 sentenced to an imprisonment term of fifteen years to life on count 1 plus twenty years on the 27 associated personal discharge of a firearm enhancement. (2 CT 429.) On December 28, 2023, the 1 California Court of Appeal, Fifth Appellate District, ordered Petitioner’s sentence on count 2 and 2 the associated use of a firearm enhancement stayed, directed the trial court to prepare an 3 amended determinate abstract of judgment so reflecting, and otherwise affirmed the judgment. 4 People v. Popke, No. F084966, 2023 WL 8947160, at *14 (Cal. Ct. App. Dec. 28, 2023), as 5 modified on denial of reh’g (Jan. 12, 2024). On March 12, 2024, the California Supreme Court 6 denied the petition for review. (LDs2 19, 20.) 7 On July 2, 2024, Petitioner filed the instant petition for writ of habeas corpus raising the 8 following claims for relief: (1) ineffective assistance of counsel; (2) prosecutorial misconduct; 9 and (3) sufficiency of the evidence. (ECF No. 1 at 8–11.3) On March 12, 2025, the Court 10 dismissed the unexhausted ineffective assistance of counsel and prosecutorial misconduct claims. 11 (ECF No. 17.) On June 4, 2025, Respondent filed an answer. (ECF No. 26.) On June 18, 2025, 12 Petitioner filed a traverse. (ECF No. 27.) 13 II. 14 STATEMENT OF FACTS4 15 I. A Sheriff’s Deputy Goes to Appellant’s Residence to Attempt to Serve him with Court Documents. Appellant Responds by Shooting at the Deputy with 16 an Assault Rifle.
17 On the evening of August 28, 2020, Mariposa County Sheriff’s Deputy Jose Garcia was tasked with serving appellant with court documents.5 Service of court 18 documents was part of his regular duties as a deputy sheriff. At the start of his shift, Garcia’s sergeant provided him with the court documents, along with a “trip 19 ticket,” which included appellant’s identifying information. The trip ticket was marked “rush,” meaning it needed to be served as soon as possible. The trip ticket 20 also stated appellant worked Monday through Friday, and that service at his residence should be attempted after 5:00 p.m. 21 Garcia drove to appellant’s residence in a fully marked patrol vehicle with a 22 sheriff’s logo on the side and a light bar on top. He wore a fully marked uniform, including a badge and a hat with a sheriff’s logo. He reached appellant’s property 23 at approximately 7:30 p.m. Garcia testified there was still plenty of light outside when he arrived. 24 Appellant lived on a five-acre parcel in rural Mariposa County. The residence was 25 in the center of the parcel and not visible from the street. An approximately 400-
26 2 “LD” refers to the documents lodged by Respondent on May 29, 2025. (ECF No. 25.) 3 Page numbers refer to the ECF page numbers stamped at the top of the page. 27 4 The Court relies on the California Court of Appeal’s December 28, 2023 opinion for this summary of the relevant facts. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009). 1 yard dirt driveway led from the street to the residence. There was a rustic metal gate about 150 yards up the driveway, connected to wire fencing that enclosed a 2 large portion of the parcel. Signs posted near the gate read: “No Trespassing,” “Keep Out,” and “Nothing In Here is Worth Dying For.” 3 Garcia drove his patrol vehicle up the driveway and stopped at the gate. The gate 4 was closed and appeared to be locked with a chain and padlock. Upon closer inspection, Garcia observed the gate was “dummy-locked,” meaning it was 5 secured with a chain and padlock, but not actually locked. Garcia took off the lock, unwrapped the chain, and opened the gate. He then got back into his patrol 6 car and drove through the gate. He did not close the gate behind him. He continued another 200 yards up the driveway and parked near appellant’s 7 residence.
8 Before Garcia exited his patrol vehicle, he activated his body-worn camera, which captured his interactions with appellant. A copy of the video was admitted into 9 evidence and played for the jury.
10 Garcia testified that as he approached the residence, he observed the area around the front door was blocked with “[a] cluttered mess.” For this reason, he did not 11 believe the front door was the commonly used entrance and exit to the house. He walked down the dirt driveway, which went along the left side of the house to the 12 back. The driveway was not obstructed by a gate or any other obstacle. He observed the back door to the residence was not blocked with items, and 13 concluded it was likely the commonly used entrance. He explained it was common in Mariposa County for people to use the back door as the main door to 14 the house.
15 Garcia knocked on the back door and announced, “Hello, Sheriff’s Office.” After a few moments, appellant answered the door and stepped outside, saying, “There 16 he is.” Garcia stated, “Sheriff’s Office, how you doing sir? Are you uh Douglas ....” Appellant interrupted Garcia, stating, “No. What are you doing partner?” 17 Garcia tried to explain that he was there to serve court documents, but appellant interrupted him again, stating, “You came through my god damn gate, it was 18 locked.” Garcia responded, “[H]ang on. It was not locked,” but appellant went back inside of his house, stating, “No, no, no, no, you came through.” Garcia 19 remained outside, and advised appellant, “I'm going to leave paperwork here for you.” 20 Garcia testified he was planning to leave but became suspicious when he heard 21 appellant moving around inside of the residence “with a purpose ... with an intent.” He also heard a woman’s voice say, “Where are you going? What are you 22 doing? What’s going on?” This caused Garcia to become concerned appellant had gone into the house to retrieve a firearm. Garcia drew his service pistol and held it 23 pointing down at “low ready” and waited at the back corner of the house.
24 Soon after, appellant exited through the front door of his residence holding an AR-style assault rifle. He stepped around the front corner of the house and stood 25 between Garcia and his patrol car, approximately 30-40 feet from Garcia. Appellant held the assault rifle with his right hand, with his hand on the pistol grip 26 and the barrel pointed down. He pointed at Garcia’s patrol car with his left hand and yelled something that Garcia could not make out. Garcia described 27 appellant’s demeanor as hostile and angry. 1 gun down.” Appellant dropped his left hand down to the rifle and began to raise the barrel toward Garcia. Garcia believed appellant was going to shoot him, so he 2 fired three shots at appellant. One of the shots struck the charging handle of appellant’s assault rifle, then ricocheted into his right shoulder. 3 While Garcia was firing the three shots, appellant began shooting at Garcia. 4 Garcia immediately retreated behind the back corner of the house, leaning out twice to return fire. Appellant continued to shoot at Garcia as he hid behind the 5 corner of the house. Two of the rounds went through the house and exited in front of Garcia’s face. 6 Recognizing appellant was armed with a superior weapon capable of shooting 7 through cover, Garcia elected to retreat. He could also see that appellant was advancing toward him. Garcia turned and ran past the back door and across the 8 back porch. While Garcia was fleeing, appellant fired at least five additional shots with the assault rifle. As he stepped off of the back porch, Garcia lost his balance 9 and fell, but was able to get to his feet and continue to run.
10 Garcia ran across appellant’s property and climbed over multiple fences, two of which were electrified. He eventually stopped at the residence of one of 11 appellant’s neighbors and used the neighbor’s landline to call for backup. He checked over his body and confirmed he had not been shot. 12 After additional officers arrived on scene, appellant’s adult son called 911 and 13 stated appellant had locked himself inside of a shipping container on appellant’s property. A law enforcement “special response team” identified the shipping 14 container and called for appellant to come out over a loudspeaker, which he eventually did. As appellant was taken into custody, he asked “how that fat cop 15 that he shot was doing.”
16 II. Crime Scene Evidence.
17 Inside of the shipping container, officers recovered the rifle appellant used to shoot at Garcia—a .300 Blackout AR-style rifle. A firearms expert examined the 18 rifle and opined it constitutes an assault weapon under California law. Officers located several other firearms inside the shipping container, including an 19 additional AR-style rifle.
20 At the scene of the shooting, there were 13 expended .300 blackout cartridge casings and six expended nine-millimeter cartridge casings. A firearms expert 21 examined the casings and opined that the .300 blackout casings were fired by appellant’s assault rifle, and the nine-millimeter casings were fired by Garcia’s 22 service pistol. The pattern of the .300 blackout casings on the ground suggested appellant advanced toward the back corner of the house as he was firing the 23 assault rifle.
24 Law enforcement personnel observed several bullet holes in the back corner of appellant’s residence. They also observed a bullet entrance hole and exit hole in a 25 plastic garbage can on appellant’s back porch. The garbage can was located along the path Garcia took as he fled across the back porch and away from appellant. 26 The location of the holes was consistent with appellant having shot at Garcia as he ran away. A firearms expert used appellant’s assault rifle to fire a test shot 27 through the garbage can. The resulting bullet hole matched the initial bullet holes discovered by law enforcement personnel. 1 III. Testimony of Other Witnesses.
2 The People called an expert in police practices, use of force, and digital media evidence. Based on his review of the video from Garcia’s body-worn camera, the 3 expert opined that Garcia was justified in using deadly force when appellant raised the barrel of his assault rifle toward him, and under the circumstances, 4 Garcia had no reasonable alternative to using deadly force.
5 Appellant’s neighbor testified he was in his home when he saw a police officer run across his front yard. He went outside and saw appellant near the fence line of 6 his property holding an AR-style assault rifle. When he asked appellant what was going on, appellant told him, “A cop shot me,” and “I’m looking for that fat cop.” 7 Another of appellant’s neighbors testified he has had conversations with appellant 8 about law enforcement coming onto his property. During one of those conversations, appellant stated that if law enforcement came through his gate and 9 to his house, “there might be a confrontation.” Prior to trial, in a statement to law enforcement, the neighbor stated appellant “had planned this exact incident,” and 10 that appellant told him he “would use firearms against law enforcement if they ever came to his property.” 11 IV. Appellant’s Statements and Testimony. 12 Appellant was transported to the hospital for treatment for his gunshot wound. 13 When a member of the emergency room staff told appellant that if he had been shot in the center of the chest, “there would not have been much left of him,” 14 appellant responded, referring to Garcia, “Wouldn’t be much left of him.” A minute later, appellant stated, referring to law enforcement: “They are pussies. 15 Use nine-millimeter. He’s just lucky I didn’t pull a fucking .45 on him.”
16 Appellant was interviewed by law enforcement the following day. He admitted he “screwed up bad,” and that the judge can do “[w]hatever [he] wants to do to me.” 17 However, he continued to insist that Garcia should not have gone through his gate, which he repeatedly claimed was locked. He stated that Garcia did not give 18 him the opportunity to drop his rifle, and after Garcia shot him, he went “ballistic.” He felt he had to “take him out,” and tried to hit Garcia by shooting 19 through the corner of his house because he knew his “bullets go through wood.” He moved forward toward the corner of the house while he was shooting because 20 he was “trying to get another angle on him.” He saw Garcia take off “like a rabbit” and fall after he ran across the back porch. He denied shooting at Garcia as 21 he ran away.
22 At trial, appellant testified he was 69 years old when the shooting occurred. On the evening of the shooting, he was at home with his wife and adult son. He 23 thought he had locked the driveway gate earlier that day. He testified he usually kept the gate locked at night for safety reasons, but sometimes he only left it 24 dummy locked.
25 Appellant testified that sometime after dinner, while he was in his office, he heard his wife say that someone was at the back door. He opened the door and saw a 26 person wearing plain clothes with a gun on his hip. He did not see a uniform or a badge. He was concerned because the person came through the gate, which he 27 believed was locked. He confronted the person about coming through the gate, then went into his house and armed himself with the assault rifle. The rifle was 1 loaded with “fragmentation rounds,” which appellant acknowledged were designed to “inflict maximum damage” on living things. 2 As appellant exited his front door, he saw a patrol car parked in the driveway, and 3 realized the person at his house was a deputy sheriff. He testified the deputy pointed his pistol at him and ordered him to drop his rifle, but that the deputy 4 started shooting before he was able to comply. He claimed he returned fire because he thought the deputy was going to kill him. He continued to shoot as he 5 moved toward the deputy, but denied shooting at him as he fled across the back porch. 6 After the shooting, appellant went to his shipping container and obtained a 7 different rifle because one of the deputy’s bullets struck and damaged his original rifle. He went to his driveway gate, which was open, and closed and locked it, 8 then went toward his neighbor’s property to look for the deputy. After speaking with his neighbor, he went back to his shipping container to “bleed out.” He 9 denied that he intended to murder the deputy, or that he had planned out his interaction with law enforcement that day. 10 11 Popke, 2023 WL 8947160, at *1–4 (footnote in original). 12 III. 13 STANDARD OF REVIEW 14 Relief by way of a petition for writ of habeas corpus extends to a person in custody 15 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 16 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 17 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 18 by the United States Constitution. The challenged convictions arise out of the Mariposa County 19 Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 20 28 U.S.C. § 2241(d). 21 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 22 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 23 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 24 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 25 therefore governed by its provisions. 26 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 27 unless a petitioner can show that the state court’s adjudication of his claim: /// 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 2 determined by the Supreme Court of the United States; or
3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 4 State court proceeding. 5 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 268–69 (2015); Harrington v. Richter, 562 6 U.S. 86, 97–98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner’s claim has been 7 “adjudicated on the merits” in state court, “AEDPA’s highly deferential standards” apply. Ayala, 8 576 U.S. at 269. However, if the state court did not reach the merits of the claim, the claim is 9 reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009). 10 In ascertaining what is “clearly established Federal law,” this Court must look to the 11 “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the 12 relevant state-court decision.” Williams, 529 U.S. at 412. In addition, the Supreme Court 13 decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that 14 ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent 15 decisions”; otherwise, there is no clearly established Federal law for purposes of review under 16 AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742, 17 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 18 123 (2008)). 19 If the Court determines there is clearly established Federal law governing the issue, the 20 Court then must consider whether the state court’s decision was “contrary to, or involved an 21 unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A 22 state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at 23 a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state 24 court decides a case differently than [the Supreme Court] has on a set of materially 25 indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an 26 unreasonable application of[] clearly established Federal law” if “there is no possibility 27 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state 1 court’s ruling on the claim being presented in federal court was so lacking in justification that 2 there was an error well understood and comprehended in existing law beyond any possibility for 3 fairminded disagreement.” Id. at 103. 4 If the Court determines that the state court decision was “contrary to, or involved an 5 unreasonable application of, clearly established Federal law,” and the error is not structural, 6 habeas relief is nonetheless unavailable unless it is established that the error “had substantial and 7 injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 8 (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 9 (1946)). 10 AEDPA requires considerable deference to the state courts. Generally, federal courts 11 “look through” unexplained decisions and review “the last related state-court decision that does 12 provide a relevant rationale,” employing a rebuttable presumption “that the unexplained decision 13 adopted the same reasoning.” Wilson v. Sellers, 584 U.S. 122, 125 (2018). This presumption 14 may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on 15 different grounds than the lower state court’s decision, such as alternative grounds for affirmance 16 that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id. 17 “When a federal claim has been presented to a state court[,] the state court has denied 18 relief,” and there is no reasoned lower-court opinion to look through to, “it may be presumed that 19 the state court adjudicated the claim on the merits in the absence of any indication or state-law 20 procedural principles to the contrary.” Richter, 562 U.S. at 99. Where the state court reaches a 21 decision on the merits and there is no reasoned lower-court opinion, a federal court 22 independently reviews the record to determine whether habeas corpus relief is available under 23 § 2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the 24 record is not de novo review of the constitutional issue, but rather, the only method by which we 25 can determine whether a silent state court decision is objectively unreasonable.” Himes v. 26 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court 27 record and “must determine what arguments or theories . . . could have supported, the state 1 those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 2 Court.” Richter, 562 U.S. at 102. 3 IV. 4 DISCUSSION 5 In his sole remaining claim for relief, Petitioner asserts that the evidence presented at trial 6 was constitutionally insufficient to support a conviction for attempted premeditated murder of a 7 peace officer because Deputy Garcia’s conduct was not within the lawful scope of his duties at 8 the time of the incident. (ECF No. 1 at 5, 10–11; ECF No. 27 at 1–2.) This claim was raised on 9 direct appeal to the California Court of Appeal, Fifth Appellate District, which denied the claims 10 in a reasoned decision. The claim was also raised in the petition for review, which the California 11 Supreme Court summarily denied. As federal courts “look through” summary denials and review 12 “the last related state-court decision that does provide a relevant rationale,” Wilson, 584 U.S. at 13 125, this Court will examine the decision of the California Court of Appeal. 14 In denying Petitioner’s sufficiency of the evidence claim, the California Court of Appeal 15 stated:
16 I. The Jury’s Finding that Garcia was Lawfully Performing his Duties as a Sheriff’s Deputy was Supported by Substantial Evidence. 17 Attempted murder of a peace officer and assault with an assault weapon on a 18 peace officer both include the element that the victim was a peace officer engaged in the lawful performance of his or her duties. (§§ 664, subd. (e), 245, subd. 19 (d)(3).) Appellant claims the record contains insufficient evidence of this element because Garcia violated his Fourth Amendment rights by coming onto his 20 property through the dummy-locked gate and approaching the back door of his house. Respondent contends that appellant conceded that Garcia’s conduct was 21 lawful by failing to object to the trial court’s instruction that a peace officer “may legally enter private property” to effectuate service. We reject respondent’s 22 contention that the element was conceded, but conclude the record conclusively establishes Garcia’s conduct was reasonable under the Fourth Amendment, and 23 therefore appellant’s convictions were supported by substantial evidence.
24 A. Background.
25 In their motions in limine, the People requested the trial court instruct the jury that a deputy sheriff has “the legal right and duty to enter private property to serve 26 valid court process at any time of the day or night,” and that it is “not a defense ... that the deputy entered a closed gate onto private property.” Appellant filed a 27 response arguing the court should instead instruct the jury that a deputy may only attempt to effectuate service “at a reasonable time and in a reasonable manner.” 1 During oral argument, defense counsel agreed that “a deputy sheriff has a right and a duty to serve process on private property,” and stated he was not arguing 2 Garcia had committed criminal trespass. Instead, defense counsel clarified he was requesting the court instruct the jury that “it’s up to them to determine if the 3 sheriff was exercising reasonable speed, diligence, time, and in a reasonable manner.” 4 The court concluded that it would consider both proposed instructions, draft its 5 own version of the instruction, and discuss it with the parties. The court noted, however, that the instruction would include language that “ ‘[t]he deputy has a 6 right and duty to serve process, which includes the right to enter on to private property through a closed gate,’ or something like that.” When asked if that would 7 “work” for him, defense counsel responded, “[s]ubmitted.”6
8 After the close of evidence, the trial court held a jury instructions conference with the parties off the record. Once back on the record, defense counsel stated he had 9 no objection to the trial court’s proposed instructions.
10 As pertinent here, the trial court gave the following jury instructions: “A Mariposa County Deputy Sheriff is a peace officer;” “The duties of a Deputy 11 Sheriff include service of civil process;” and, “A peace officer may legally enter private property to serve, or attempt to serve, civil papers or orders issued by any 12 court.”
13 B. Standard of review.
14 Attempted murder of a peace officer includes the element that the victim was a peace officer engaged in the lawful performance of his or her duties. (§ 664, subd. 15 (e); In re Manuel G. (1997) 16 Cal.4th 805, 815; CALCRIM No. 602.) Assault with an assault weapon on a peace officer includes the same element. (§ 245, 16 subd. (d)(3); CALCRIM No. 860.) “California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, 17 disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim’s 18 conduct forms part of the corpus delicti of the offense.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) 19 “To assess the evidence’s sufficiency, we review the whole record to determine 20 whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record 21 must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could 22 find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We “presume in support of the judgment the existence of 23 every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the 24 defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a 25 reasonable doubt.” ’ ” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
27 6 After motions in limine were argued and the jury was sworn, the trial court declared a mistrial because appellant was quarantined due to COVID exposure, and a witness tested positive for COVID. The parties 1 C. Appellant did not concede the element that Garcia was lawfully performing his duties as a peace officer. 2 We begin by addressing respondent’s argument that appellant conceded that 3 Garcia was lawfully performing his duties by failing to object to the instruction that a peace officer “may legally enter private property” to effectuate service. 4 Respondent contends that, due to this instruction, “there were no disputed issues of fact for the jury to decide” on the issue of lawful performance. 5 We reject the premise of respondent’s argument that the jury instruction removed 6 the lawful performance element from the jury's consideration. Lawful performance is an element the People were required to prove, and appellant did 7 not stipulate to the truth of that element. The jury was instructed as to each offense that to convict appellant it must find beyond a reasonable doubt that 8 Garcia was lawfully performing his duties as a peace officer. The instruction that a peace officer “may legally enter private property” to effectuate service merely 9 provided the jury with guidance on the law—namely, what a peace officer may lawfully do while serving or attempting to serve civil process. It did not resolve 10 all factual disputes and establish the lawful performance element as a matter of law. The jury was still required to determine whether Garcia’s conduct was 11 otherwise lawful. Ultimately, the element of lawful performance was decided by the jury, and the question of whether the jury’s finding was supported by 12 sufficient evidence is properly subject to our review. (See Jackson v. Virginia (1979) 443 U.S. 307, 316–319 [due process guarantees all criminal conviction be 13 supported by sufficient evidence].)
14 D. Substantial evidence supported the jury’s finding that Garcia’s conduct was lawful. 15 Appellant’s sufficiency of the evidence claim is based solely on his assertion that 16 Garcia’s entry onto his property violated the Fourth Amendment. Appellant does not suggest that Garcia violated any California statutory law. Indeed, California 17 law authorizes sheriff’s deputies to enter private property to effectuate service. The Penal Code expressly exempts sheriff’s deputies involved in service of 18 process from criminal statutes prohibiting trespass on private property. (See, e.g., § 602, subd. (n) [excluding any sheriff who drives a vehicle upon the real property 19 of another to effectuate service]; § 602.8, subds. (a), (c)(3) [excluding any sheriff who enters lands “enclosed by fence” or “where signs forbidding trespass are 20 displayed” to effectuate service]; see also Gov. Code, § 26608 [“The sheriff shall serve all process and notices in the manner prescribed by law.”].) 21 Under the Fourth Amendment, Garcia’s entry onto appellant’s property was 22 unlawful if it was a “governmental intrusion upon ... an area in which he has a reasonable expectation of privacy.” (People v. Mayberry (1982) 31 Cal.3d 335, 23 341.) Appellant asserts that Garcia violated his Fourth Amendment rights by opening the gate onto his property and approaching his house from the back door. 24 We disagree. “Our Supreme Court has made clear that a police officer who makes 25 an uninvited entry onto private property does not per se violate the occupant’s Fourth Amendment right of privacy. The criterion to be applied is whether entry 26 is made into an area where the public has been implicitly invited, such as the area furnishing normal access to the house. A reasonable expectation of privacy does 27 not exist in such areas.” (In re Gregory S. (1980) 112 Cal.App.3d 764, 775, citing Lorenzana v. Superior Court (1973) 9 Cal.3d 626; see also United States v. Reed 1 police officers who enter private property restrict their movements to those areas generally made accessible to visitors—such as driveways, walkways, or similar 2 passageways”].)
3 Here, Garcia used normal access routes to attempt to contact and serve appellant. He opened an unlocked gate, parked his patrol car in the driveway, walked along 4 the unobstructed driveway to what he believed was the commonly used door to the house, and knocked. His actions were consistent with that of a private citizen 5 attempting to contact the occupants of appellant’s residence. He “exercised no more than ‘ “the same license to intrude as a reasonably respectful citizen” ’—any 6 door-to-door salesman would reasonably have taken the same approach to the house.” (People v. Lujano (2014) 229 Cal.App.4th 175, 184.) 7 Appellant argues that Garcia approaching and knocking on the back door of the 8 house rather than the front door was unreasonably intrusive. But on the record before this court, Garcia’s decision to try the back door was reasonable. Garcia 9 testified that the area around the front door was blocked with clutter. Garcia’s body-worn camera footage, and the photographs admitted into evidence, confirm 10 this observation. Conversely, the back door was easily accessible from the driveway, which provided a clear, unobstructed path around the side of the house 11 to the back. As Garcia explained, in his experience it was common for people in Mariposa County to utilize the back door as the common entrance. Thus, it was 12 reasonable for Garcia to conclude that the back door, rather than the front door, was the commonly used entrance to the house. By proceeding to and knocking on 13 the back door, Garcia did not intrude upon an area where appellant had a reasonable expectation of privacy. 14 We are also unpersuaded that Garcia’s opening of an unlocked gate to attempt to 15 contact appellant was an unreasonable intrusion under the Fourth Amendment.7 The unlocked gate was along the driveway, an area providing normal access to the 16 house and generally made accessible to visitors. (In re Gregory S., supra, 112 Cal.App.3d. at p. 775; United States v. Reed, supra, 733 F.2d at p. 501.) Under 17 these circumstances, Garcia’s entry through the unlocked gate did not implicate a reasonable expectation of privacy. (See United States v. Robbins (8th Cir. 2012) 18 682 F.3d 1111, 1115 [“We have held that police entry through an unlocked gate on a driveway to approach the front door of a residence for a ‘knock-and-talk’ is a 19 reasonable, limited intrusion for legitimate law enforcement objectives.”]; People v. Lujano, supra, 229 Cal.App.4th at p. 184 [officers entering a driveway and 20 passing through two unlocked gates to attempt to initiate consensual contact with the occupants was not an unreasonable intrusion under the Fourth Amendment]; 21 see also Vickery v. Superior Court (1970) 10 Cal.App.3d 110, 119 [“If in the course of his proper duties as a police officer, that officer is required to make an 22 investigation at a private home, it would seem an unreasonable deterrent to the public's interest in that investigation, that it can be precluded by the mere 23 existence of an unlocked gate.”].)
24 Appellant’s reliance on People v. Winters (1983) 149 Cal.App.3d 705 (Winters) is unavailing. There, officers went to the appellant’s residence to attempt to contact 25 his son about an unrelated criminal matter. (Id. at p. 707.) After approaching the 26 7 While appellant characterizes the gate as “apparently locked,” it is clear from the record that the gate 27 was in fact not locked. Garcia testified the gate was unlocked, and appellant testified that after the shooting, he closed the gate and locked it, foreclosing any suggestion that Garcia damaged the lock to 1 front door and discovering no one was home, the officers went through an unlocked gate into the back yard “to investigate,” and discovered marijuana 2 plants. (Id. at pp. 707–708.) The court held the entry into the backyard violated the Fourth Amendment, reasoning that once the officers determined no one was 3 inside, “their official business at Winters’ home ended,” and they were not otherwise justified in entering the backyard. (Id. at p. 708.) Here, unlike the 4 officers in Winters, Garcia never departed from normal access routes to the home that are generally made accessible to visitors. Rather, Garcia entered appellant’s 5 property through an unlocked gate solely to attempt to contact appellant by knocking on his door. He did not do anything other than what one would 6 reasonably expect an ordinary visitor to a house would do. (See People v. Lujano, supra, 229 Cal.App.4th at p. 184.) 7 In his reply brief, appellant raises the related claim that the jury should have been 8 instructed that a dummy-locked gate is the same thing as a gate that is actually locked “for Fourth Amendment purposes.” Appellant did not request this 9 instruction below, and therefore, it is forfeited. (People v. Covarrubias (2016) 1 Cal.5th 838, 877 [“failure to request clarifying language forfeits the issue on 10 appeal”]; People v. Buenrostro (2018) 6 Cal.5th 367, 428; People v. Hardy (2018) 5 Cal.5th 56, 91.) In any event, appellant provides no authority to support this 11 claim, and it is contradicted by the authorities discussed above.
12 The evidence at trial was overwhelming that Garcia’s conduct was lawful, and that he did not violate appellant’s Fourth Amendment rights. Accordingly, the 13 jury’s finding that Garcia was engaged in the lawful performance of his duties as to counts 1 and 2 was supported by substantial evidence, and this claim lacks 14 merit. 15 Popke, 2023 WL 8947160, at *4–8 (footnotes in original). 16 The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a 17 court must determine whether, viewing the evidence and the inferences to be drawn from it in the 18 light most favorable to the prosecution, any rational trier of fact could find the essential elements 19 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A 20 reviewing court “faced with a record of historical facts that supports conflicting inferences must 21 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved 22 any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. State 23 law provides “for ‘the substantive elements of the criminal offense,’ but the minimum amount of 24 evidence that the Due Process Clause requires to prove the offense is purely a matter of federal 25 law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319). 26 Jackson “makes clear that it is the responsibility of the jury—not the court—to decide 27 what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact 1 could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). No “particular form of 2 evidence is required to support the Court of Appeal’s reasoning or the jury’s verdict.” Lucero v. 3 Holland, 902 F.3d 979, 992 (9th Cir. 2018). “Circumstantial evidence and inferences drawn from 4 it may be sufficient to sustain a conviction.” Ngo v. Giurbino, 651 F.3d 1112, 1114 (9th Cir. 5 2011) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). “[A] federal court may 6 not overturn a state court decision rejecting a sufficiency of the evidence challenge simply 7 because the federal court disagrees with the state court. The federal court instead may do so only 8 if the state court decision was ‘objectively unreasonable.’” Cavazos, 565 U.S. at 2. A federal 9 court’s “job under AEDPA is to avoid a ‘type of fine-grained factual parsing’ that does not 10 accord deference to either jurors or state courts, and instead to survey any possible fact in the 11 record that could support, directly or circumstantially, the jury’s conviction.” Lucero, 902 F.3d at 12 992 (citing Coleman, 566 U.S. at 655). 13 “Attempted murder of a peace officer and assault with an assault weapon on a peace 14 officer both include the element that the victim was a peace officer engaged in the lawful 15 performance of his or her duties.” Popke, 2023 WL 8947160, at *4. Petitioner contends that 16 Deputy Garcia’s conduct was not within the lawful scope of his duties at the time of the incident 17 because Garcia came onto Petitioner’s property through the dummy-locked gate and approached 18 the back door, in violation of the Fourth Amendment. 19 “The Fourth Amendment provides in relevant part that the ‘right of the people to be 20 secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 21 shall not be violated.’” Florida. v. Jardines, 569 U.S. 1, 5 (2013). Although “when it comes to the 22 Fourth Amendment, the home is first among equals,” the Supreme Court has recognized an 23 “implicit license [that] typically permits the visitor to approach the home by the front path, knock 24 promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” 25 Jardines, 569 U.S. at 6, 8. “Thus, a police officer not armed with a warrant may approach a home 26 and knock, precisely because that is ‘no more than any private citizen might do.’” Id. at 8 27 (quoting Kentucky v. King, 563 U.S. 452, 469 (2011)). 1 To be clear, it remains permissible for officers to approach a home to contact the inhabitants. The constitutionality of such entries into 2 the curtilage hinges on whether the officer’s actions are consistent with an attempt to initiate consensual contact with the occupants of 3 the home.
4 Officers conducting a knock and talk also need not approach only a specific door if there are multiple doors accessible to the public. 5 “[T]he law does not require an officer to determine which door most closely approximates the Platonic form of ‘main entrance’ 6 and then, after successfully completing this metaphysical inquiry, approach only that door. An officer [initiating] a ‘knock and talk’ 7 visit may approach any part of the building ... where uninvited visitors could be expected.” United States v. Titemore, 335 8 F.Supp.2d 502, 505–06 (D.Vt.2004), aff’d, 437 F.3d 251 (2d Cir.2006). 9 10 United States v. Perea-Rey, 680 F.3d 1179, 1187–88 (9th Cir. 2012). 11 The Supreme Court has not decided on “whether a police officer may conduct a ‘knock 12 and talk’ at any entrance that is open to visitors rather than only the front door.” Carroll v. 13 Carman, 574 U.S. 13, 20 (2014). The Ninth Circuit has held that “officers, like other uninvited 14 visitors, [are] permitted to enter [a] property through the unlocked gate to initiate a knock and 15 talk.” Sartori v. Cnty. of Los Angeles, 676 F. App’x 680, 683 (9th Cir. 2017). See Valadez v. 16 Cnty. of Los Angeles, No. 2:20-CV-03724-JWH-SKX, 2024 WL 3153207, at *18 (C.D. Cal. 17 June 24, 2024) (finding no Fourth Amendment violation where deputies, while escorting a non- 18 party as he attempted to serve documents on plaintiff, entered curtilage through gate that plaintiff 19 did not recall if she locked and that did not otherwise show signs of forced entry). 20 The caselaw discussed above indicates that a court could reasonably conclude that 21 Deputy Garcia coming onto Petitioner’s property through the dummy-locked gate and walking 22 along an unobstructed driveway and approaching the easily accessible back door of the house 23 (rather than the front door that was blocked by clutter) was lawful. Thus, the state court’s 24 ultimate conclusion that the evidence was sufficient to establish that Garcia was engaged in the 25 lawful performance of his duties was not contrary to, or an unreasonable application of, clearly 26 established federal law, nor was it based on an unreasonable determination of fact. The decision 27 was not “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 1 | Accordingly, Petitioner is not entitled to habeas relief on his sufficiency of the evidence claim, 2 | and the petition should be denied. 3 V. 4 RECOMMENDATION 5 Based on the foregoing, the undersigned HEREBY RECOMMENDS that the petition for 6 | writ of habeas corpus be DENIED. 7 This Findings and Recommendation is submitted to the assigned United States District 8 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 | Rules of Practice for the United States District Court, Eastern District of California. Within 10 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 11 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 12 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 13 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 14 | within fourteen (14) days after service of the objections. The assigned United States District 15 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 16 | The parties are advised that failure to file objections within the specified time may waive the 17 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 18 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 21| Dated: _ August 29, 2025 [spe ey 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28