Lost his appeal and now petition for rehearing denied

 

Jon Goldberg lost his appeal. His petition for hearing was denied.

NOTES from THE COURT: Appellant's petition for rehearing is denied.

It is ordered that the opinion filed on October 23, 2020, is modified as follows: 1. On page six, at the end of the paragraph that begins with "Here, with respect to the prosecution's use of the word 'murder' in questioning witnesses . . .," the following sentence is added: For the same reason, the prosecutor was entitled to ask Goldberg about his prior statement. 

2. On page eight, before the paragraph that begins with "Finally . . .," the following new paragraph is added: Similarly, we find no prejudice based on defense counsel's failure to object to the prosecutor's question to a witness about his call to police regarding a "murder." In the context of a five-week trial in which the jury heard testimony from 35 witnesses, and given the instructions and admonitions ultimately provided by the trial court, there was no reasonable probability of prejudice. 

3. On page 9, in the last paragraph, the following sentence is deleted: "Nobody except Goldberg contradicted this testimony." In the next sentence, delete the words "In any case" and replace them with "Although Goldberg points to conflicting evidence, ultimately". That paragraph now reads: Goldberg argues that the witness's account was incredible because no bullets exited Smith's body and, therefore, the shots could not have caused the dust that the witness claimed to see. But while the witness may have been mistaken about the dust, or the source of the dust, the more important point is that he saw Smith laying on the ground while being shot. Although Goldberg points to conflicting evidence, ultimately "[i]t was a matter for the jury to decide whether the inference was faulty or illogical" and the court "reminded the jurors that argument was not evidence." (People v. Tully (2012) 54 Cal.4th 952, 1044; see also People v. Lucas (1995) 12 Cal.4th 415, 474 (Lucas).) 4. On page 10, in the first paragraph, footnote no. 2 is added at the end of the sentence that reads "However, Goldberg did not object and thus failed to preserve the error for appeal." The text of footnote 2 is added as follows: Likewise, by failing to object in trial court, Goldberg forfeited his claim that the prosecutor committed misconduct in implying when questioning Goldberg that Smith was shot four times in the back. In light of the new footnote 2, the remaining footnotes shall be renumbered accordingly. 5. On page 13, in the first paragraph, the following text is deleted: "She did not 'think it was meant to be part of the deliberation because, . . . ." With the deletion, that sentence is amended to: "[P]eople were getting coffee and kind of moving around the room[.]" 6. On page 18, in the paragraph that begins "With respect to the other juror . . .," the following text is deleted from the final sentence: "that was not 'meant to be part of the deliberation because, . . . " With the deletion, that sentence is amended to: She described it as a "comment" or "interjection" as "people were getting coffee and kind of moving around the room." These modifications do not constitute a change in the judgment.

https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2271809&doc_no=A155885&request_token=OCIwLSEmXkg%2BWyBBSCItWEtIUFw6UVxfJiNOJzJSLDtOCg%3D%3D

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