People v. Popke CA5 ( 2024 )

Filed 1/12/24 P. v. Popke CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084966
Plaintiff and Respondent,
(Mariposa Super. Ct. No. 17207)
v.
ORDER MODIFYING OPINION
DOUGLAS LOUIS POPKE, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on December 28, 2023, be modified as
follows:
1. On page 16, in the last paragraph, at the end of the sentence that states
“Therefore, contrary to appellant’s claim, the jury was able to convict appellant of
attempted murder without necessarily making the additional finding that the victim was a
peace officer,” add as footnote 5 the following footnote, which will require renumbering
of all subsequent footnotes:
5
In a footnote in his reply brief, appellant argues that the verdict form for
count 1 only gave the jury the all-or-nothing choice of convicting appellant of
willful and premeditated attempted murder of a peace officer, or of finding him
not guilty entirely. In other words, according to appellant, the verdict form did
not allow the jury to convict appellant of only attempted murder.
We reject this argument for two reasons. First, “we do not consider
arguments raised for the first time in a reply brief.” (People v. Mickel (2016)
2 Cal.5th 181, 197.)
Second, nothing in the record demonstrates the verdict forms prevented the
jury from returning a different verdict. The record only includes the verdict
forms completed by the jury. It does not include any unused verdict forms. The
trial court instructed the jury with CALCRIM No. 641, which stated it would
receive separate verdict forms for guilty on each potential offense or lesser
included offense as to count 1, and for not guilty. The court further instructed
the jury to “sign only one verdict form per count,” and to “[r]eturn the unused
verdict forms to [the court], unsigned.” Thus, it appears the jury was given
multiple different verdict forms encompassing the different possible verdicts,
but that it only signed the verdict form stating it found appellant guilty of
willful and premediated attempted murder of a peace officer.
Despite this, appellant made no effort to augment the record with the unused
verdict forms. (See Cal. Rules of Court, rule 8.340.) Appellate counsel has a
“duty to insure that there is an adequate record before the appellate court from
which [the appellant’s] contentions may be resolved on their merits. Where the
appropriate record is missing or incomplete, counsel must see that the defect is
remedied, by requesting augmentation or correction of the appellate record.”
(People v. Barton (1978) 21 Cal.3d 513, 519–520.) Instead of seeking to
provide a complete appellate record by moving to augment the record with the
unused verdict forms, appellant invites us to assume that they do not exist. We
decline to do so.
There is no change in the judgment.
Appellant’s petition for rehearing filed on January 5, 2024, is denied.
Levy, Acting P. J.
WE CONCUR:
Poochigian, J.
De Santos, J.
2.
Filed 12/28/23 P. v. Popke CA5 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084966
Plaintiff and Respondent,
(Super. Ct. No. 17207)
v.
DOUGLAS LOUIS POPKE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Mariposa County. Michael A.
Fagalde, Judge.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook
A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted Douglas Louis Popke (appellant) of attempted willful, deliberate,
and premeditated murder of a peace officer (§§ 664, subds. (e), (f), 187, subd. (a);
count 1)1 with a discharge of a firearm enhancement (§ 12022.53, subd. (c)), and assault
with an assault weapon on a peace officer (§ 245, subd. (d)(3); count 2) with a use of a
firearm enhancement (§ 12022.5, subd. (a)). The trial court sentenced appellant to 15
years to life plus 20 years in state prison.
On appeal, appellant raises claims of insufficiency of the evidence, failure to
instruct on lesser included offenses, failure to exclude inadmissible character evidence,
and prosecutorial misconduct. We conclude no error occurred, and that any presumed
error was harmless. However, we agree with the parties that appellant’s sentence on
count 2 and the associated use of a firearm enhancement must be stayed pursuant to
section 654, subdivision (a). We affirm.
BACKGROUND
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
an Assault Rifle.
On the evening of August 28, 2020, Mariposa County Sheriff’s Deputy Jose
Garcia was tasked with serving appellant with court documents.2 Service of court
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 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 also stated appellant
worked Monday through Friday, and that service at his residence should be attempted
after 5:00 p.m.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The nature of the court documents was not revealed to the jury.
2.
Garcia drove to appellant’s residence in a fully marked patrol vehicle with a
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 at
approximately 7:30 p.m. Garcia testified there was still plenty of light outside when he
arrived.
Appellant lived on a five-acre parcel in rural Mariposa County. The residence was
in the center of the parcel and not visible from the street. An approximately 400-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 large portion of the
parcel. Signs posted near the gate read: “No Trespassing,” “Keep Out,” and “Nothing In
Here is Worth Dying For.”
Garcia drove his patrol vehicle up the driveway and stopped at the gate. The gate
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 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 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 residence.
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 evidence
and played for the jury.
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 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 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 concluded it was likely the commonly used
3.
entrance. He explained it was common in Mariposa County for people to use the back
door as the main door to the house.
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 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?” 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 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 remained outside, and advised appellant, “I’m going to leave
paperwork here for you.”
Garcia testified he was planning to leave but became suspicious when he heard
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 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 pointing down at “low
ready” and waited at the back corner of the house.
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
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 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 appellant’s demeanor as hostile and angry.
Garcia pointed his service pistol at appellant and yelled, “Hang on, stop. Put the
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 fired three
4.
shots at appellant. One of the shots struck the charging handle of appellant’s assault rifle,
then ricocheted into his right shoulder.
While Garcia was firing the three shots, appellant began shooting at Garcia.
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 corner of the
house. Two of the rounds went through the house and exited in front of Garcia’s face.
Recognizing appellant was armed with a superior weapon capable of shooting
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 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 and fell, but was able to get to
his feet and continue to run.
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 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.
After additional officers arrived on scene, appellant’s adult son called 911 and
stated appellant had locked himself inside of a shipping container on appellant’s property.
A law enforcement “special response team” identified the shipping 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 that he shot was doing.”
II. Crime Scene Evidence.
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 rifle
and opined it constitutes an assault weapon under California law. Officers located
5.
several other firearms inside the shipping container, including an additional AR-style
rifle.
At the scene of the shooting, there were 13 expended .300 blackout cartridge
casings and six expended nine-millimeter cartridge casings. A firearms expert 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 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 assault rifle.
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 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. 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 through the garbage can. The
resulting bullet hole matched the initial bullet holes discovered by law enforcement
personnel.
III. Testimony of Other Witnesses.
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 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, Garcia had no reasonable
alternative to using deadly force.
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 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.”
6.
Another of appellant’s neighbors testified he has had conversations with appellant
about law enforcement coming onto his property. During one of those conversations,
appellant stated that if law enforcement came through his gate and 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 that appellant told him he “would
use firearms against law enforcement if they ever came to his property.”
IV. Appellant’s Statements and Testimony.
Appellant was transported to the hospital for treatment for his gunshot wound.
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,” appellant responded,
referring to Garcia, “Wouldn’t be much left of him.” A minute later, appellant stated,
referring to law enforcement: “They are pussies. Use nine-millimeter. He’s just lucky I
didn’t pull a fucking .45 on him.”
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.”
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 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 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 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 he ran away.
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 thought he
7.
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 dummy locked.
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 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 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 loaded with “fragmentation rounds,”
which appellant acknowledged were designed to “inflict maximum damage” on living
things.
As appellant exited his front door, he saw a patrol car parked in the driveway, and
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 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 moved toward the deputy, but denied
shooting at him as he fled across the back porch.
After the shooting, appellant went to his shipping container and obtained a
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, 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 denied that he intended to
murder the deputy, or that he had planned out his interaction with law enforcement that
day.
8.
DISCUSSION
I. The Jury’s Finding that Garcia was Lawfully Performing his Duties as a
Sheriff’s Deputy was Supported by Substantial Evidence.
Attempted murder of a peace officer and assault with an assault weapon on a
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. (d)(3).) Appellant
claims the record contains insufficient evidence of this element because Garcia violated
his Fourth Amendment rights by coming onto his property through the dummy-locked
gate and approaching the back door of his house. Respondent contends that appellant
conceded that Garcia’s conduct was 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 contention that the element was conceded, but conclude the
record conclusively establishes Garcia’s conduct was reasonable under the Fourth
Amendment, and therefore appellant’s convictions were supported by substantial
evidence.
A. Background.
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 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 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.”
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 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 sheriff was exercising
reasonable speed, diligence, time, and in a reasonable manner.”
9.
The court concluded that it would consider both proposed instructions, draft its
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 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 “work” for him, defense counsel
responded, “[s]ubmitted.”3
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 no
objection to the trial court’s proposed instructions.
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 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 court.”
B. Standard of review.
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. (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, 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, 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 conduct forms part of the corpus delicti of the offense.”
(People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)
3 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 agreed that the trial court’s previous
rulings would carry over to the next trial.
10.
“To assess the evidence’s sufficiency, we review the whole record to determine
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 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 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 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 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
reasonable doubt.” ’ ” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
C. Appellant did not concede the element that Garcia was lawfully
performing his duties as a peace officer.
We begin by addressing respondent’s argument that appellant conceded that
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. 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.
We reject the premise of respondent’s argument that the jury instruction removed
the lawful performance element from the jury’s consideration. Lawful performance is an
element the People were required to prove, and appellant did 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 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 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 all factual disputes and establish the lawful performance element as a matter
11.
of law. The jury was still required to determine whether Garcia’s conduct was 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 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 supported by sufficient evidence].)
D. Substantial evidence supported the jury’s finding that Garcia’s
conduct was lawful.
Appellant’s sufficiency of the evidence claim is based solely on his assertion that
Garcia’s entry onto his property violated the Fourth Amendment. Appellant does not
suggest that Garcia violated any California statutory law. Indeed, California law
authorizes sheriff’s deputies to enter private property to effectuate service. The Penal
Code expressly exempts sheriff’s deputies involved in service of 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 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 displayed” to effectuate service]; see also Gov.
Code, § 26608 [“The sheriff shall serve all process and notices in the manner prescribed
by law.”].)
Under the Fourth Amendment, Garcia’s entry onto appellant’s property was
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, 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.
We disagree. “Our Supreme Court has made clear that a police officer who makes
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 is made into an
area where the public has been implicitly invited, such as the area furnishing normal
12.
access to the house. A reasonable expectation of privacy does 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 (8th Cir. 1984) 733 F.2d 492, 501
[“no Fourth Amendment search occurs when police officers who enter private property
restrict their movements to those areas generally made accessible to visitors—such as
driveways, walkways, or similar passageways”].)
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 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 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 door-to-door salesman would
reasonably have taken the same approach to the house.” (People v. Lujano (2014) 229
Cal.App.4th 175, 184.)
Appellant argues that Garcia approaching and knocking on the back door of the
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 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 this observation. Conversely, the back
door was easily accessible from the driveway, which provided a clear, unobstructed path
around the side of the house 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 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
the back door, Garcia did not intrude upon an area where appellant had a reasonable
expectation of privacy.
13.
We are also unpersuaded that Garcia’s opening of an unlocked gate to attempt to
contact appellant was an unreasonable intrusion under the Fourth Amendment.4 The
unlocked gate was along the driveway, an area providing normal access to the 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 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) 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 reasonable, limited intrusion for legitimate law
enforcement objectives.”]; People v. Lujano, supra, 229 Cal.App.4th at p. 184 [officers
entering a driveway and passing through two unlocked gates to attempt to initiate
consensual contact with the occupants was not an unreasonable intrusion under the
Fourth Amendment]; 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 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 existence of an
unlocked gate.”].)
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 his son
about an unrelated criminal matter. (Id. at p. 707.) After approaching the front door and
discovering no one was home, the officers went through an unlocked gate into the back
yard “to investigate,” and discovered marijuana plants. (Id. at pp. 707–708.) The court
held the entry into the backyard violated the Fourth Amendment, reasoning that once the
4 While appellant characterizes the gate as “apparently locked,” it is clear from the
record that the gate 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 open the gate.
14.
officers determined no one was 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 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
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 reasonably expect an
ordinary visitor to a house would do. (See People v. Lujano, supra, 229 Cal.App.4th at
p. 184.)
In his reply brief, appellant raises the related claim that the jury should have been
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 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 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 claim, and it is contradicted by the authorities
discussed above.
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 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 merit.
II. The Trial Court did not Fail to Properly Instruct the Jury on Lesser Included
Offenses.
Appellant claims the trial court failed to instruct the jury on lesser included
offenses on both counts. As to count 1, premeditated attempted murder of a peace
officer, appellant contends the jury should have been instructed on ordinary attempted
murder (§§ 664/187, subd. (a)). As to count 2, assault with an assault weapon on a peace
officer, appellant contends the jury should have been instructed on ordinary assault with a
15.
firearm (§ 245, subd. (a)(2)). As we explain, the jury was properly instructed on these
lesser offenses, and thus no instructional error occurred.
A. Standard of review.
A trial court has a sua sponte duty to instruct “ ‘on all theories of a lesser included
offense which find substantial support in the evidence.’ ” (People v. Smith (2013) 57
Cal.4th 232, 240.)
B. The trial court properly instructed the jury on attempted murder and
the additional allegation that the victim was a peace officer lawfully
performing his duties.
Initially, we note that appellant incorrectly characterizes attempted murder as a
lesser included offense to premeditated attempted murder of a peace officer. Rather,
attempted murder (§§ 664/187, subd. (a)) is a substantive offense, and the allegation that
the victim was a peace officer (§ 664, subd. (e)) is a sentence enhancement requiring a
separate finding by the jury. (See People v. Smith (2005) 37 Cal.4th 733, 740; People v.
Favor (2012) 54 Cal.4th 868, 876–877; Bench Notes to CALCRIM No. 602 [noting that
attempted murder of a peace officer is a sentencing enhancement].)
The trial court correctly instructed the jury in accordance with this structure. First,
it gave CALCRIM No. 600 (Attempted Murder), which set forth the elements of
attempted murder. Then, it gave CALCRIM No. 602 (Attempted Murder: Peace Officer,
Firefighter, Custodial Officer, or Custody Assistant), which specified that if the jury finds
appellant guilty of attempted murder, it must then decide whether the People have proved
the additional allegation that appellant attempted to murder a peace officer in the lawful
performance of his duties. Therefore, contrary to appellant’s claim, the jury was able to
convict appellant of attempted murder without necessarily making the additional finding
that the victim was a peace officer.
16.
C. The trial court properly instructed the jury with the lesser included
offense as to count 2 of assault with a firearm.
Appellant contends that as to count 2, the jury should have been instructed with
the lesser included offense of assault with a firearm (§ 245, subd. (a)(2)), because it
provided a “readily available alternative” if the jury had a reasonable doubt that Garcia
was lawfully performing his duties. Respondent points out, however, that the jury was
instructed with this lesser included offense. Appellant concedes this claim in his reply
brief. We agree with the parties that the jury was properly instructed, and no error
occurred.5
D. Appellant’s remaining instructional error claims regarding excessive
force and manner of service lack merit.
Appellant also briefly raises two claims of instructional error pertaining to the
lawful performance element.6 First, he contends the jury should have been instructed that
service of civil process must be performed with “reasonable speed and reasonable
diligence” and “at a reasonable time and in a reasonable manner.” Second, he argues the
jury should have been instructed on “excessive force,” because the jury could have
determined Garcia used unreasonable force and therefore was not lawfully performing his
5 Throughout his briefs appellant interchangeably refers to assault with a firearm
(§ 245, subd. (a)(2)) as assault with an assault weapon (§ 245, subd. (a)(3)). For purposes
of our analysis, it does not matter whether he intended to suggest the trial court should
have instructed on either offense. Appellant concedes the claim, and there was no dispute
at trial or on appeal that appellant’s rifle constituted an assault weapon under California
law.
6 Respondent criticizes appellant’s briefing of these claims for providing “no
separate heading and effectively no analysis or discussion.” Respondent contends this
violates California Rules of Court, rule 8.204(a)(1)(B), which requires that all briefs
“[s]tate each point under a separate heading or subheading summarizing the point, and
support each point by argument and, if possible, by citation of authority.” Because we
conclude appellant’s instructional error claims are forfeited and lack merit, we need not
consider this contention.
17.
duties.7 We conclude these claims are forfeited, and that any presumed error was
harmless.
1. The instructional error claims are forfeited.
Appellant did not request an instruction on excessive force at trial. While defense
counsel did request an instruction regarding the manner of service of civil process at the
start of trial, he acquiesced to the court’s suggestion that it would consider the arguments
of counsel and craft its own instruction on the issue, to be reviewed by the parties after
the close of evidence. Subsequently, defense counsel did not lodge an objection to the
trial court’s decision not to give his proposed manner of service instruction when jury
instructions were finalized at the jury instruction conference.
Appellant contends he may raise these claims for the first time on appeal because
the alleged instructional errors affected his substantial rights. (§ 1259; People v. Coffman
and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.) However, an appellant may not argue that
a correct instruction was too general or incomplete, and thus needed clarification, without
requesting clarification at trial. (People v. Buenrostro, supra, 6 Cal.5th at p. 428; People
v. Covarrubias, supra, 1 Cal.5th at p. 877; People v. Hardy, supra, 5 Cal.5th at p. 91.)
Appellant’s proposed instructions merely served to clarify the lawful performance
element, which was properly given. Accordingly, the claims are forfeited.
2. Any presumed error was harmless.
Even assuming appellant properly preserved these instructional error claims, we
need not address them on their merits because any presumed error was harmless.
Depending upon the basis of the claimed error, instructional error is reviewed
under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v.
7 Presumably, appellant is referring to portions of CALCRIM No. 2670 (Lawful
Performance: Peace Officer) pertaining to use of force by a peace officer.
18.
Watson (1956) 46 Cal.2d 818, 836 (Watson). Under the more stringent Chapman
standard, which applies to errors of constitutional dimension, reversal is required unless
the reviewing court can conclude beyond a reasonable doubt that the error did not
contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Under the alternative
Watson standard, which applies to errors of state law, reversal is not required unless it is
reasonably probable the defendant would have obtained a more favorable result had the
error not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
We need not decide whether the Chapman or Watson standard for prejudicial error
applies here because the error was harmless under either standard.
With respect to the manner of service instruction, the evidence conclusively
established that Garcia’s actions in attempting to serve appellant were reasonable. He
went to appellant’s residence at approximately 7:30 p.m., while it was still light outside.
As we explained above, Garcia only utilized normal access routes to the home, and
knocked on what he reasonably believed was the commonly used door to the residence.
He spoke to appellant in a polite and respectful tone and did nothing that could be
construed as intrusive or alarming. On this record, there is no basis to conclude the
proposed instruction on manner of service contributed to the outcome of the trial.
With respect to the excessive force instruction, the evidence was overwhelming
that Garcia did not use excessive or unreasonable force. A peace officer may lawfully
use deadly force if he or she “[r]easonably believed, based on the totality of the
circumstances, that the force was necessary to defend against an imminent threat of death
or serious bodily injury to the officer or another person.” (CALCRIM No. 2670; see
§ 835a, subd. (c)(1)(A).) Here, the evidence was undisputed that appellant exited the
front door of his residence and angrily confronted Garcia while holding an assault rifle.
Garcia did not discharge his service pistol until appellant ignored his command to drop
the rifle, and instead began raising the barrel of the rifle toward him. He only continued
to shoot at appellant in response to appellant shooting at him with the assault rifle.
19.
Appellant’s testimony that Garcia did not give him the opportunity to drop the rifle
before he started firing his service pistol is clearly contradicted by the evidence, including
Garcia’s body-worn camera footage. Moreover, the jury was instructed on perfect and
imperfect self-defense, and they rejected both. Therefore, there is no reason to believe
the absence of an excessive force instruction impacted the trial.
Considering the overwhelming strength of the evidence, the guilty verdict
rendered in this trial was surely unattributable to the purported errors. (Sullivan v.
Louisiana (1993) 508 U.S. 275, 279.) Accordingly, we conclude beyond a reasonable
doubt that the trial court’s failure to instruct on the manner of service or excessive force
did not contribute to the verdict, and these claims lack merit.
III. Appellant’s Claim that the Trial Court Should Have Excluded Evidence of
Other Firearms is forfeited. Any Presumed Error was Harmless.
Appellant claims the trial court erred in admitting evidence that he possessed
firearms other than the rifle he used in the shooting. He argues this was inadmissible
character evidence pursuant to Evidence Code section 1101, subdivision (a), because the
jurors may have believed the firearms evidence showed he had a propensity for violence.
We agree with respondent that appellant forfeited this claim by failing to object below.
Regardless, any presumed error in admitting the evidence was harmless.
A. Background.
Before trial, appellant moved in limine to exclude evidence of firearms and
ammunition discovered by law enforcement in his residence and shipping container. In
his written motion, appellant argued this evidence was unduly prejudicial and irrelevant
to the charged crimes, and therefore should be excluded under Evidence Code section
352. During oral argument, defense counsel stated his client was a long time “gun
enthusiast,” and possessed approximately 30 to 50 firearms, which were photographed
and documented by law enforcement. The People opposed the motion, arguing that the
firearms evidence showed appellant was knowledgeable about weapons, and therefore
20.
“knew what he was doing” when he confronted Garcia with an assault rifle. The trial
court denied the motion to exclude the firearms evidence without prejudice, noting that
appellant may object to specific items of evidence as they come up during trial.
At trial, evidence that appellant possessed firearms that were not used in the
charged offenses was admitted without objection from the defense. The evidence
appellant claims should have been excluded at trial includes: his neighbor’s statement to
law enforcement that he said he would use firearms against law enforcement if they came
onto his property; a photograph of the interior of appellant’s storage shed, which depicted
the rifle used in the shooting, and other unrelated handguns and rifles; testimony of an
officer who said he saw “a lot of firearms” inside of appellant’s residence; evidence that
appellant was carrying a pistol at the time of the shooting; and testimony by appellant and
others that he was a firearms enthusiast and kept numerous firearms for protection against
wildlife and intruders.
B. The claims are forfeited.
As a threshold matter, we agree with respondent that appellant forfeited his claim
for failure to object below. “[C]hallenges to the admission of evidence must be preserved
for appellate review with a timely and specific objection at trial.” (People v. Seumanu
(2015) 61 Cal.4th 1293, 1328; see Evid. Code, § 353, subd. (a).) While appellant made a
motion in limine to exclude the evidence of other firearms, that motion was denied
without prejudice to raise objections to specific items of evidence during trial. (See
People v. Mills (2010) 48 Cal.4th 158, 170 [“As a general matter, when a trial court
denies a motion without prejudice the matter is forfeited if not renewed.”].) Defense
counsel made no such further objections. Accordingly, the claim is forfeited.
C. Any presumed error was harmless.
Even assuming appellant had properly preserved the evidentiary claim on appeal,
any presumed error was harmless.
21.
The erroneous admission of character evidence or prior misconduct is subject to
the Watson harmless error standard. (Watson, supra, 46 Cal.2d 818, 836; People v.
Scheer (1998) 68 Cal.App.4th 1009, 1018–1019; see also People v. Marks (2003) 31
Cal.4th 197, 227 [“the application of ordinary rules of evidence … does not implicate the
federal Constitution, and thus we review allegations of error under the ‘reasonable
probability’ standard of Watson”].) In assessing prejudice under Watson, “an appellate
court may consider ‘whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ ” (People v. Rogers (2006) 39 Cal.4th 826, 870.)
Here, the evidence of appellant’s guilt was overwhelming. Without provocation,
appellant angrily confronted Garcia with an assault rifle. The rifle was loaded with
“fragmentation rounds,” which appellant testified were designed to inflict maximum
damage on living targets. He shot at Garcia a total of 13 times. He advanced toward
Garcia while he was shooting, intentionally shooting through his house to try to hit
Garcia as he took cover behind it. When appellant reached the back corner of the house,
he elected to continue firing across the back porch at Garcia as he ran away. These
actions alone were more than sufficient to establish his intent to kill, and that his conduct
was premeditated, willful, and deliberate.
However, appellant’s conduct following the shooting provided further evidence of
his premeditated intent to kill. After Garcia fled, appellant armed himself with another
rifle and continued to search for Garcia, commenting to his neighbor that he was
searching for “that fat cop.” While receiving medical treatment, he commented that
Garcia was lucky he “didn’t pull a fucking .45 on him.” Then, when interviewed by law
enforcement, he admitted he was shooting at Garcia to “take him out.”
We also conclude that any inference of prejudice was significantly limited because
much of the firearms evidence would still have been admitted even if defense counsel had
22.
objected. (See People v. Davis (2009) 46 Cal.4th 539, 603 [error in admitting prior
crimes evidence was harmless because otherwise admissible]; see also People v.
Hernandez (2004) 33 Cal.4th 1040, 1049–1050 [inference of prejudice from admission of
gang evidence dispelled where such evidence was otherwise relevant to issue of guilt].)
Under Evidence Code section 1101, subdivision (b), “evidence that a person committed a
crime, civil wrong or other act” is admissible where relevant to prove some other fact,
such as identity, motive, or intent. Here, as the prosecutor argued to the trial court,
appellant’s extensive knowledge of firearms was relevant to establish his intent to kill,
because it showed he had knowledge of the damage that a firearm, particularly, an assault
rifle loaded with “fragmentation rounds,” can do to a human being. Moreover, his prior
statement to his neighbor that he would use firearms against law enforcement if they ever
came on his property suggested his conduct was both intentional and premeditated,
because it showed he had considered shooting at police officers in such a situation prior
to his encounter with Garcia.
Considering the overwhelming evidence of guilt and the likelihood that some of
the firearms evidence would still have been admitted over appellant’s objection, it is not
reasonably probable its admission impacted the result of appellant’s trial. (Sullivan v.
Louisiana, supra, 508 U.S. at p. 279.) Any presumed error was harmless, and this claim
lacks merit.
IV. Appellant’s Claim that the Prosecutor Misled the Jury by Using the Example
of the Decision to Drive Through a Yellow Traffic Light to Explain
Premeditation and Deliberation is Forfeited. In any Event, the Prosecutor’s
Argument was not Improper.
During closing argument, to explain the extent of reflection necessary to establish
premeditation and deliberation, the prosecutor used the analogy of the decision to drive
through a yellow traffic light. The prosecutor stated:
“Let’s talk about first degree willful, premeditated, deliberate.
When you come to a yellow light at an intersection, and you are driving up
23.
to it, you approach the intersection, and then there’s a yellow light, you
have to make a decision. Do I stop, wait for it to turn red, or do I proceed
through, and hope to get across before it turns red? That is the amount and
time and type of choice and decision that amounts to premeditation [and]
deliberation. It can be done in the shortest amount of time.”
Appellant contends this analogy misled the jury by diminishing the extent of the
reflection necessary to establish premeditation and deliberation. We conclude appellant
forfeited the claim by failing to object below, and regardless, the prosecutor’s argument
was not misleading.
A. Standard of review.
Prosecutorial misconduct occurs when “[a] prosecutor … uses deceptive or
reprehensible methods to persuade the jury.” (People v. Parson (2008) 44 Cal.4th 332,
359.) “When a claim of misconduct is based on the prosecutor’s comments before the
jury … ‘ “the question is whether there is a reasonable likelihood that the jury construed
or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
B. The claim is forfeited.
Respondent contends appellant forfeited his claim of prosecutorial misconduct, by
failing to raise a timely objection. We agree with respondent. “To preserve a claim of
prosecutorial misconduct for appeal, a defendant must make a timely and specific
objection and ask the trial court to admonish the jury to disregard the improper
argument.” (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 305.) Appellant did
not object at trial to the prosecutor’s argument, and this was not the type of alleged error
that could not have been cured by an admonition from the trial court. (See People v. Hill
(1998) 17 Cal.4th 800, 820.) Accordingly, this claim is forfeited.
Appellant argues that if the claim is forfeited, it is because defense counsel was
ineffective for failing to object. Because we exercise our discretion to address the merits
of the prosecutorial misconduct claim, we need not consider the alternative ineffective
24.
assistance of counsel claim. (See People v. Coffman and Marlow, supra, 34 Cal.4th at
p. 92 [reaching merits because appellant also raised ineffective assistance of counsel
claim]; In re Victor L. (2010) 182 Cal.App.4th 902, 928.)
C. No prosecutorial misconduct occurred.
We reject appellant’s assertion that the prosecutor’s analogy to the decision to
drive through a yellow light misled the jury as to the reflection necessary to establish
premeditation and deliberation. As our Supreme Court has explained, “ ‘The process of
premeditation and deliberation does not require any extended period of time. “The true
test is not the duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be arrived at
quickly....” [Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Consistent
with these principles, the prosecutor’s analogy highlighted that as with the decision to
drive through a yellow light, premeditated and deliberate attempted murder may involve
the weighing of several considerations in a short period of time.
In People v. Avila (2009) 46 Cal.4th 680, 715, the prosecutor used the same
“yellow light” analogy. The Supreme Court concluded the argument was proper: “[T]he
prosecutor used the example of assessing one’s distance from a traffic light, and the
location of surrounding vehicles, when it appears the light will soon turn yellow and then
red, and then determining based on this information whether to proceed through the
intersection when the light does turn yellow, as an example of a ‘quick judgment’ that is
nonetheless ‘cold’ and ‘calculated.’ ” Similarly, in People v. Son, which also involved
the prosecutor’s use of the “yellow light” analogy, the court concluded, “We see no error
in the yellow light example. At least in the way the prosecutor framed it, if someone
were to go through the decisionmaking process the prosecutor described, the decision to
proceed through the intersection would be premeditated.” (People v. Son (2020) 56
Cal.App.5th 689, 699.)
25.
Considering these authorities, we conclude the prosecutor’s analogy and argument
correctly reflected the applicable law of premeditation and deliberation. Accordingly, the
prosecutor did not mislead the jury, and there is no reasonable likelihood the jury
misapplied the law. This claim is without merit.
V. Appellant’s Sentence on Count 2 and the Associated Firearm Enhancement
must be Stayed Pursuant to section 654, subdivision (a).
At sentencing, the trial court sentenced appellant to the middle term of nine years
on count 2, and the middle term of four years on the associated use of a firearm
enhancement. The court ordered sentence on count 2 and the enhancement to be served
concurrently to the sentence on count 1.8
Appellant contends the sentence on count 2 and the use of a firearm enhancement
instead should have been stayed pursuant to section 654, subdivision (a), because they
did not involve a separate act from count 1. Respondent concedes, and we agree.
“Section 654 prohibits multiple punishment for a single physical act that violates
different provisions of law.” (People v. Jones (2012) 54 Cal.4th 350, 358.) There is no
dispute the act of shooting at Garcia with an assault rifle formed the basis for both
convictions and enhancements. Therefore, sentence on count 2 and the associated use of
a firearm enhancement must be stayed pursuant to section 654. (See People v. Smith
(1985) 163 Cal.App.3d 908, 914 [conduct enhancements relating to a stayed term must
also be stayed].)
We also note that the determinate abstract of judgment incorrectly lists the code
section for the firearm enhancement on count 2 as “PC 12022.53(c).” The amended
8 The abstract of judgment incorrectly states the sentence on count 2 and the use of
a firearm enhancement were ordered to run consecutive to the sentence on count 1. (See
People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3 [“When there is a discrepancy
between the oral pronouncement of judgment and the minute order or the abstract of
judgment, the oral pronouncement controls.”].)
26.
determinate abstract of judgment shall list the correct code section—12022.5,
subdivision (a).
DISPOSITION
Appellant’s sentence on count 2 and the associated use of a firearm enhancement
are ordered stayed pursuant to section 654, subdivision (a). The trial court is directed to
prepare an amended determinate abstract of judgment reflecting this court’s order. The
amended determinate abstract of judgment shall also list the correct code section for the
firearm enhancement on count 2. The trial court shall forward the amended determinate
abstract of judgment to the appropriate authorities. In all other respects, the judgment is
affirmed.
LEVY, Acting P. J.
WE CONCUR:
POOCHIGIAN, J.
DE SANTOS, J.
27.