Goldberg v. Broomfield, No. 3:2022cv02273 - Document 22 (N.D. Cal. 2022)

Court Description: ORDER DENYING HABEAS PETITION. Signed by Judge Charles R. Breyer on 12/9/2022. (crblc1, COURT STAFF) (Filed on 12/9/2022)

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Goldberg v. Broomfield Doc. 22 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JON GOLDBERG, Petitioner, 9 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. 10 11 United States District Court Northern District of California Case No. 22-cv-02273-CRB WARDEN RON BROOMFIELD, Respondent. 12 13 Petitioner Jon Goldberg (“Goldberg”), who is currently serving fifteen years to life 14 in California’s San Quentin State Prison for second-degree murder, petitions for a writ of 15 habeas corpus under 28 U.S.C. § 2254. Pet. (dkt. 1). 16 Goldberg shot and killed a man, Tim Smith, who had an extramarital affair with 17 Goldberg’s wife. A California jury convicted Goldberg of second-degree murder. 18 Goldberg challenged his convictions on direct appeal to no avail, and the California courts 19 denied him postconviction relief. Goldberg now petitions this Court for a writ of habeas 20 corpus, alleging that prosecutorial misconduct violated his right to due process and a fair 21 trial, and that juror misconduct during deliberations violated his right to an impartial jury. 22 As explained below, the Court DENIES the petition. 23 I. 24 BACKGROUND On February 15, 2018, the Humboldt County, California district attorney filed 25 charges against Goldberg for murder under California Penal Code section 187(a), a 26 personal gun-use enhancement under Penal Code section 12022.53(d), assault with a 27 firearm under Penal Code section 245(a)(2), and misdemeanor brandishing a firearm under 28 Penal Code section 417(a)(1)(B). Pet. ¶ 1. Following trial, the jury convicted Goldberg of Dockets.Justia.com 1 second-degree murder and the firearm enhancement. Id. ¶ 2. Goldberg filed a motion for 2 a new trial, which was denied. Id. ¶ 3. On October 19, 2018, the trial court sentenced 3 Goldberg to fifteen years to life in prison for second-degree murder but dismissed the 4 firearm enhancement. Id. ¶ 4. Goldberg appealed. Id. ¶ 5. On November 13, 2020, the 5 California Court of Appeal affirmed his conviction and sentence. Id.; Ex. A (dkt. 1-1). 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court of Appeal summarized the facts of the case as follows: At the time of the shooting, Goldberg and his wife, Rachel, were married for seven years and had a six-year-old son. The Goldbergs were friendly with Tim Smith and his domestic partner Jessica. The day before the shooting, the Goldbergs went fishing and had dinner with Smith. That night, Jessica discovered nude photographs of Rachel on Smith’s phone and confronted Smith. The next morning, Jessica sent Rachel a text message stating that she found the photos and that Rachel needed to tell her husband. The shooting occurred later that day. Over the course of the morning, Rachel revealed to Goldberg that she had exchanged nude photos with Smith and had sex with him. Goldberg was angry about the affair, cried intermittently, and drank shots of rum. Meanwhile, Goldberg exchanged a series of texts with Jessica. He texted her that he would come see her. Jessica texted Goldberg that she wanted to talk with him, then a few minutes later texted to say that he need not come and that she had “kicked Tim out so I don’t know if he will be here.” At some point while talking to Rachel, Goldberg retrieved a pistol, loaded it, and snapped it into a holster on his hip. He fired gunshots into a tree that he occasionally used for target practice, then he reloaded the gun. Goldberg drove 50 minutes to a Verizon store to get a new phone because his was broken. Although he did not usually carry a gun, he brought his gun with him, leaving it in the van while he was in the store. When he was unable to get a phone, he drove home, where he saw that Rachel had left with their son. Goldberg next went to his neighbor Chad H.’s house, borrowed his phone to call Rachel, and screamed at her about sleeping with Smith and “kidnapping” their son. Goldberg was angry and upset. According to Chad H., Goldberg told him that Smith had slept with his wife and that he “was going to kill that motherfucker.” When he returned home from Chad H.’s house, Goldberg immediately got in his van and drove to Smith’s house. His gun was still in his van. Although Goldberg said he thought Smith would not be home, he recognized Smith’s truck parked outside. After twice driving past his house, Goldberg parked behind Smith’s truck. The doors to the truck were open. Goldberg took the gun from the floorboard of his van and clipped it to his side in the holster. As Goldberg got out of his van, he saw Smith emerge from the house and walk toward his truck. Goldberg approached 2 23 Smith and said, “I thought you were my friend,” then shot him multiple times from close range. Smith, who was unarmed, sustained five gunshot wounds—three shots to the chest and two shots toward the left side of his back. Four of the wounds were potentially fatal, and Smith died from his wounds. A member of a work crew across the street testified that he saw a man “laying on the ground[]” as he was being shot, and he saw “dust blow out from underneath of him [with] each shot.” Other than Goldberg, this was the only witness who claimed to have seen the shooting. Several witnesses who heard the shots testified that there was a pause between the first and second shots. Goldberg testified at trial. Explaining the shooting, Goldberg testified that Smith “reached in his truck with both hands as you reach for a rifle.” Goldberg pulled his gun out of the holster and held it up. Smith emerged from the truck unarmed and empty-handed, quickly stepped around the truck’s open door toward Goldberg, and grabbed the hand in which Goldberg held the gun. Goldberg said he tried to pull his gun back but accidentally shot Smith in the center of his chest. He testified: “when I pulled back, the gun fired and I just kept firing.” “I had my eyes closed as I pulled the trigger. When I opened them, he was falling to the ground.” Goldberg testified that he felt terrified and believed, at the same time, Smith was trying to kill him. Goldberg’s primary defense was that he killed Smith in self-defense. Goldberg presented evidence that he believed that Smith would not be home; that he knew Smith kept guns in his truck; and that he believed Smith was reaching for a gun. The first shot was accidental, and he fired the subsequent shots because he believed his life was in danger. He also relied on an imperfect self-defense theory based on his genuine if unreasonable belief that Smith was threatening his life. A forensic psychologist testified that emotional distress can impair one’s ability to accurately process information. Goldberg also denied telling Chad H. that he would “kill that motherfucker” but instead said he “should go kick that motherfucker’s ass.” In support of a heat of passion theory, Goldberg asserted he was overcome by emotions after learning of his wife’s affair with Smith. He presented evidence that he had a peaceful character and that he did not often shoot guns. The People argued Goldberg did not act in self-defense or in the heat of passion but instead deliberately intended to kill Smith. The People also argued his self-defense claim failed because he purposefully initiated the confrontation with Smith and used more force than reasonably necessary. 24 People v. Goldberg (“Court of Appeal Opinion”), No. A155885, 2020 WL 6255513, at *1– 25 2 (Cal. Ct. App. Oct. 23, 2020), modified on denial of reh’g (Nov. 13, 2020), review 26 denied (Jan. 13, 2021). 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 27 Petitioner filed a petition for review with the California Supreme Court. Id. ¶ 6. On 28 January 13, 2021, the Court summarily denied the petition. Id. Goldberg now seeks a writ 3 1 of habeas corpus pursuant to 28 U.S.C. § 2254. 2 II. This court may entertain a petition for a writ of habeas corpus on behalf of a person 3 4 in custody pursuant to the judgment of a state court only on the ground that he is in 5 custody in violation of the Constitution, or the laws or treaties of the United States. 28 6 U.S.C. § 2254(a). The writ may not be granted with respect to any claim that was adjudicated on the 7 United States District Court Northern District of California LEGAL STANDARD 8 merits in state court unless the state court’s adjudication of the claim (1) resulted in a 9 decision that was contrary to, or involved an unreasonable application of, clearly 10 established federal law, as determined by the Supreme Court of the United States; or (2) 11 resulted in a decision that was based on an unreasonable determination of the facts in light 12 of the evidence presented in the state court proceeding. Id. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the writ only if the 13 14 state court arrives at a conclusion opposite to that reached by the Supreme Court on a 15 question of law, or if the state court decides a case differently than the Court on a set of 16 materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). 17 Under the “unreasonable application” clause, a federal habeas court may grant the writ 18 only if the state court identifies the correct governing legal principle from the Court’s 19 decisions but unreasonably applies that principle to the facts of the prisoner’s case. Id. at 20 413. 21 “[A] federal habeas court may not issue the writ simply because the court concludes 22 in its independent judgment that the relevant state-court decision applied clearly 23 established federal law erroneously or incorrectly. Rather, that application must also be 24 unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” 25 inquiry should ask whether the state court’s application of clearly established federal law 26 was “objectively unreasonable.” Id. at 409. 27 28 The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time 4 1 of the state-court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2 2003). While circuit law may be “persuasive authority” for determining whether a state- 3 court decision unreasonably applies Supreme Court precedent, only the Supreme Court's 4 holdings are binding on state courts and must be “reasonably” applied. Id. 5 III. United States District Court Northern District of California 6 DISCUSSION Goldberg petitions this Court for a writ of habeas corpus on two grounds. First, 7 Goldberg argues that several instances of prosecutorial misconduct at trial cumulatively 8 and prejudicially violated his rights to due process and a fair trial. Pet. at 10. Second, 9 Goldberg argues that juror misconduct during deliberations substantially and injuriously 10 affected the verdict, denying him his constitutional right to an impartial jury. Id. at 14. 11 Goldberg raised each argument to the Court of Appeal, Answer Ex. 5 (dkt. 18) (“Pl.’s 12 Br.”), which ultimately denied him relief. Court of Appeal Opinion. As set forth below, 13 the Court concludes that the Court of Appeal’s rejection of Goldberg’s claims was neither 14 contrary to, nor an unreasonable application of, clearly established federal law. See 28 15 U.S.C. § 2254(d)(1). The Court also concludes that the Court of Appeal did not reject 16 Goldberg’s claims on an unreasonable determination of any facts considering the evidence 17 presented at trial. See id. § 2254(d)(2). Therefore, the Court DENIES Goldberg’s habeas 18 petition. 19 A. 20 Goldberg claims that the prosecutor committed several instances of misconduct Prosecutorial Misconduct 21 throughout his trial by using the word “murder” to describe the shooting pre-verdict and by 22 mischaracterizing both the number of times and the position in which the victim was shot. 23 Pet. at 10–14. Goldberg also asserts that these instances of error cumulatively and 24 prejudicially violated his right to due process and a fair trial. Id. As detailed below, the 25 Court concludes that the Court of Appeal reasonably rejected Goldberg’s claims of 26 prosecutorial misconduct. 27 28 5 1. 1 2 3 Court of Appeal Opinion Because Goldberg raised each claim of prosecutorial misconduct on appeal,1 the Court will first summarize the Court of Appeal’s opinion. See Court of Appeal Opinion at 5–11. 4 a. 5 6 7 8 9 On appeal, Goldberg argued that the prosecutor “improperly described Smith’s shooting as a ‘murder’ when questioning witnesses and in his closing argument.” Id. at 6. Goldberg also argued that his counsel’s failure to object to the prosecutor’s use of the word “murder” during closing arguments constituted ineffective assistance of counsel. Id. at 7. The Court of Appeal rejected each claim in turn. 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 Use of the Word “Murder” Although the Court of Appeal recognized that “prosecutor[s] should not use the term ‘murder’ when questioning witnesses,” it did not find that the prosecutor committed misconduct on this basis. Id. (citing People v. Price, 821 P.2d 610, 703 (Cal. 1991)). The Court of Appeal first determined that the prosecutor did not commit misconduct by using the word “murder” when questioning witness Steve S. Id. At trial, Steve S. admitted that he had told police that Goldberg had said to him, “Dude, I just murdered somebody,” but later testified that Goldberg said that he had “shot” someone instead. Id. (cleaned up). As the Court of Appeal reasoned, the prosecutor used the word “murder” to ask Steve S. about this inconsistency, which did not constitute misconduct. Id. Similarly, the Court of Appeal also declined to find misconduct where the prosecutor used the word “murder” when questioning two additional witnesses who also used the word, because “[t]estimony by witnesses cannot be misconduct by the prosecutor.” See id. (citing People v. Thomas, 22 828 P.2d 101, 128 (Cal. 1992)). Finally, the Court of Appeal held that Goldberg had 23 24 25 26 27 28 1 Goldberg raised two additional claims of prosecutorial misconduct in his appeal to the Court of Appeal that are absent from his federal habeas petition. To start, Goldberg argued that the prosecutor “aggravated the references to murder by improperly disparaging the defense in closing argument.” Court of Appeal Opinion at 8. Moreover, Goldberg argued that “the prosecutor improperly waited until his rebuttal argument to assert that Goldberg could not establish selfdefense because he initiated the confrontation, and his self-defense was contrived.” Id. at 10. The Court notes that the Court of Appeal did not find misconduct in either instance, see id. at 8, 10, but does not review them in this order. 6 1 procedurally defaulted on his claim of misconduct where the prosecutor asked a witness 2 about their call to police about a “murder” because he failed to object at trial.2 Id. at 6–7. The Court Appeal did not find any reasonable probability of prejudice where the United States District Court Northern District of California 3 4 prosecutor said “murder” “more than a dozen times” during his closing argument. See id. 5 at 7–8. Though the Court of Appeal assumed that the prosecutor’s use of “murder” at this 6 time was improper, id. at 7, it determined that the “context of the prosecutor’s arguments, 7 together with the trial court’s instructions and admonitions to the jury,” showed that the 8 defense counsel’s failure to object did not prejudice Goldberg. Id. at 7–8. As the Court of 9 Appeal explained, the prosecutor reiterated that the jury was to decide whether the 10 shooting satisfied the elements for murder; the prosecutor also used neutral terms like 11 “killing” and “shooting” during his closing argument; the trial court provided three 12 admonitions that made clear that “the jury should decide the case based on the evidence”; 13 and the trial court provided “extensive instruction” about the jury’s role and the elements 14 of murder. Id. at 7. As a result, the Court of Appeal concluded that Goldberg did not 15 receive ineffective assistance of counsel, and subsequently indicated that this misconduct 16 claim was procedurally defaulted for failure to object.3 See id. at 7–8, 11 (“Even if the 17 prosecutor erred by describing Smith’s killing as a ‘murder,’ . . . we find no cumulative 18 prejudice because Goldberg failed to preserve the issues by objecting.”). 19 b. Mischaracterizations and Misstatements of Evidence Goldberg next asserted that the prosecutor “committed prejudicial misconduct by 20 21 arguing to the jury that Smith fell to the ground before Goldberg fired the final shots into 22 his back and by misstating the evidence concerning the number of shots to Smith’s back.” 23 Id. at 8. The Court of Appeal rejected each instance of alleged misconduct. Id. at 8–10. The Court of Appeal held that the prosecutor did not commit misconduct by arguing 24 25 26 27 28 2 The Court of Appeal did not reach the merits of this alleged instance of prosecutorial misconduct. Court of Appeal Opinion at 6–7. 3 But as discussed in Part III.A.2.a., the Court of Appeal’s opinion is ambiguous in its finding of procedural default for failure to object to the prosecutor’s use of “murder” during closing arguments. See id. 7–8, 11. 7 United States District Court Northern District of California 1 that Goldberg fired his final shots when Smith was on the ground because the prosecutor 2 reasonably inferred Smith’s position based on the evidence presented at trial. Id. at 9. As 3 the court explained, the evidence that could have supported such an inference included: (1) 4 a witness who testified that he saw Smith lying on the ground and “dust flying out from 5 under him as the bullets were going through”; (2) additional witnesses who testified that 6 there was a pause after the first or second shots but before Goldberg fired additional shots; 7 and (3) Smith had a bruise on one shoulder and entry wounds on his chest and back. Id. 8 Goldberg attempted to discredit this evidence by pointing out that no bullets exited Smith’s 9 body and, thus, argued that Goldberg’s shots could not have caused the dust the first 10 witness saw. Id. However, the Court of Appeal was unpersuaded. Even if the witness 11 was mistaken about the source of the dust, no evidence (except Goldberg’s testimony) 12 contradicted the fact that the witness saw Smith on the ground as Goldberg shot him. Id. 13 Notwithstanding a lack of evidence detailing Smith’s position as he was shot, or how he 14 acquired the bruise on his shoulder, the “prosecutor’s contentions were based on arguable 15 inferences from the evidence.” Id. In addition, the Court of Appeal noted that it was for 16 the jury to decide whether the prosecutor’s inference was persuasive and that the trial court 17 properly reminded jurors not to consider argument as evidence. Id. 18 The Court of Appeal acknowledged that the prosecutor misstated the evidence by 19 asserting that Smith had been shot four times in the back both when questioning Goldberg 20 and during closing arguments. Id. at 10. However, the Court of Appeal determined that 21 Goldberg had procedurally defaulted on this claim because his counsel failed to object at 22 trial. Id. Even so, the Court of Appeal still considered the merits of Goldberg’s claim and 23 rejected it on two grounds. First, the trial court “repeatedly instructed the jury” that 24 attorneys’ statements are not evidence and that they should rely on their recollections and 25 notes. Id. Second, Goldberg’s counsel disputed this assertion during trial and walked the 26 jury through contradictory evidence. Id. 27 28 c. Cumulative Effect Given its previous conclusions, the Court of Appeal concisely rejected Goldberg’s 8 1 assertion that the alleged acts of misconduct cumulatively violated his rights to due process 2 and a fair trial: 3 We reject Goldberg’s argument that the alleged errors cumulatively violated his rights to due process and a fair trial. With respect to cumulative prejudice, “[w]e consider [] only the misconduct to which objection was made in assessing whether notwithstanding the admonitions given the impact was such that reversal is required.” [People v. Bell, 778 P.2d 129, 150 (Cal. 1989)]. Even if the prosecutor erred by describing Smith’s killing as a “murder,” and by misstating the number of shots fired into Smith’s back, we find no cumulative prejudice because Goldberg failed to preserve the issues by objecting. 4 5 6 7 8 In short, the trial court did not abuse its discretion by denying Goldberg’s motion for a new trial based on misconduct by the prosecutor. 9 10 United States District Court Northern District of California 11 Court of Appeal Opinion at 11. 12 2. Analysis Goldberg argues that, in combination, the prosecutor’s repeated and improper 13 14 referrals to the shooting as a “murder” and mischaracterizations of evidence throughout 15 trial violated his rights to due process and a fair trial. Pet. 10–14. Respondent counters 16 that the Court is barred from considering three instances of alleged prosecutorial 17 misconduct due to procedural default. Answer at 8–9. Respondent also asserts that each 18 alleged instance of procedural misconduct—individually and collectively—fails on the 19 merits because the Court of Appeal’s assessment of Goldberg’s claims was neither 20 contrary to, nor an unreasonable application of, clearly established federal law. Id. at 9– 21 17. 22 23 24 25 The Court will first address the issue of procedural default before analyzing the merits of Goldberg’s prosecutorial misconduct claims. a. Procedural Default Respondent contends that the Court may not review the following alleged instances 26 of prosecutorial misconduct because the Court of Appeal found them procedurally 27 defaulted for failure to object at trial: (1) the prosecutor’s use of the word “murder” when 28 questioning a witness about their call to the district attorney’s office; (2) the prosecutor’s 9 1 use of the word “murder” during his closing argument; and (3) the prosecutor’s incorrect 2 assertion that Smith had been shot four times in the back both when questioning Goldberg 3 and during his closing argument. Answer at 8. Goldberg acknowledges the forfeiture of 4 his claims regarding the prosecutor’s misstatements about the number of times the victim 5 was shot in the back, and cumulative error. Pet. at 12; Traverse (dkt. 21-1) at 1. However, 6 Goldberg does not address the procedural default of his remaining claims.4 See Pet.; 7 Traverse. A federal court will not review questions of federal law decided by a state court if 8 United States District Court Northern District of California 9 the decision also rests on a state law ground that is independent of the federal question and 10 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). 11 “For a state procedural rule to be ‘independent,’ the state law basis for the decision must 12 not be interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th 13 Cir.2001) (cleaned up). To be adequate, the state procedural rule “must have been ‘firmly 14 established and regularly followed’ by the time as of which it is to be applied.” Fields v. 15 Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (quoting Ford v. Georgia, 498 U.S. 411, 424 16 (1991)). Where a state prisoner has defaulted on federal claims in state court pursuant to 17 an independent and adequate state procedural rule, federal habeas review of the claims is 18 barred unless the prisoner can demonstrate cause for the default and actual prejudice 19 because of the alleged violation of federal law, or demonstrate that failure to consider the 20 claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. 21 When the California Supreme Court denies a petition on the merits and as 22 procedurally barred, the claims raised in that petition are procedurally barred if the cited 23 procedural bar is an independent and adequate state ground for decision. See Bennett v. 24 Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court’s application of a procedural 25 rule is not undermined where, as here, the state court simultaneously rejects the merits of 26 the claim.”). But “[t]he state court must ‘clearly and expressly state[ ] that its judgment 27 28 4 Goldberg also does not attempt to overcome the procedural default of his claims in his federal petition. See Pet. 10 1 rests on a state procedural bar’ in order for federal review to be precluded.” Thomas v. 2 Hubbard, 273 F.3d 1164, 1176 (9th Cir. 2001) (quoting Harris v. Reed, 489 U.S. 255, 263 3 (1989)), overruled on other grounds by Payton v. Woodford, 299 F.3d 815, 828–29 n.11 4 (9th Cir. 2002); see also Zapata v. Vasquez, 788 F.3d 1106, 1111–12 (9th Cir. 2015) 5 (finding federal habeas review precluded where “the state court expressly invoked a 6 procedural bar in addressing [the petitioner’s] prosecutorial misconduct claim”). If a 7 federal court concludes that an asserted procedural bar was not an independent and 8 adequate ground for the state court decision, the federal court must consider the claim on 9 the merits; if the state courts never reached the merits of the claim, the federal court 10 United States District Court Northern District of California 11 reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002). The Ninth Circuit has recognized and applied the California contemporaneous 12 objection rule in affirming denial of a federal petition on grounds of procedural default 13 where there was a complete failure to object at trial. See, e.g., Inthavong v. Lamarque, 420 14 F.3d 1055, 1058 (9th Cir. 2005). California’s contemporaneous objection rule forecloses 15 review even where the state high court went on to address petitioner’s claim on the merits. 16 Fauber v. Davis, 43 F.4th 987, 1002 (9th Cir. 2022) (citing Harris, 489 U.S. at 264 n.10 17 (1989)). 18 Here, the Court concludes that three of the alleged instances of prosecutorial 19 misconduct are procedurally barred on federal habeas review for failure to object. See 20 Answer at 8; see also, e.g., Inthavong, 420 F.3d at 1058 (affirming the denial of federal 21 habeas due to procedural default where the California contemporaneous objection rule was 22 not satisfied). 23 The Court of Appeal explicitly stated that it found Goldberg’s claim of misconduct 24 regarding the prosecutor’s use of the word “murder” when questioning a witness about 25 their call to the district attorney forfeited for failure to object at trial. See Court of Appeal 26 Opinion at 6–7 (citing Price, 821 P.2d at 682) (“And while the prosecutor did ask a witness 27 about his call to the [district attorney] regarding a ‘murder,’ Goldberg’s counsel failed to 28 object.”); see also Zapata, 788 F.3d at 1111–12. Because the Court of Appeal did not 11 1 reach the merits of this claim, see Court of Appeal Opinion at 6–7, there is little doubt that 2 it independently rested its judgment on defense counsel’s failure to object. See Coleman, 3 501 U.S. at 729–30. Thus, the Court is barred from reviewing this claim. See Inthavong, 4 420 F.3d at 1058. United States District Court Northern District of California 5 Whether the Court of Appeal independently relied on a procedural bar to deny 6 Goldberg’s claim of prosecutorial misconduct where the prosecutor used the word 7 “murder” during his closing argument is less clear. See Court of Appeal Opinion at 7–8. 8 In its opinion, the Court of Appeal focused on assessing whether the prosecutor’s use of 9 the word prejudiced Goldberg and constituted ineffective assistance of counsel, a claim 10 that Goldberg raised on appeal to avoid forfeiture. See id.; Pl.’s Br. at 45. After denying 11 Goldberg’s ineffective assistance of counsel claim for lack of prejudice, the Court of 12 Appeal indicated that the underlying prosecutorial misconduct claim was procedurally 13 defaulted. See Court of Appeal Opinion at 7–8, 11 (“Even if the prosecutor erred by 14 describing Smith’s killing as a ‘murder,’ . . . we find no cumulative prejudice because 15 Goldberg failed to preserve the issues by objecting.”). Although the Court of Appeal was 16 not crystal clear about its independent reliance on counsel’s failure to object in rejecting 17 Goldberg’s claim in this instance, as other courts in this District have held in similar 18 circumstances, “it [said] enough to indicate that forfeiture was, at a minimum, assumed.” 19 See Davidson v. Arnold, 16-CV-03298-JD, 2020 WL 1332096, at *5 (N.D. Cal. Mar. 23, 20 2020). Consequently, the Court finds that Goldberg’s allegation of misconduct based on 21 the prosecutor’s use of the word “murder” during closing arguments is procedurally 22 barred. See id.; Zapata, 788 F.3d at 1111–12. 23 Lastly, the Court of Appeal explicitly determined that Goldberg’s claim of 24 prosecutorial misconduct based on the prosecutor’s misstatements of the number of times 25 the victim was shot in the back—both when questioning Goldberg and during his closing 26 argument—was forfeited for failure to object at trial. See Court of Appeal Opinion at 10 27 (“Goldberg did not object and thus failed to preserve the error for appeal.”), 10 n.2 28 (“Likewise, by failing to object in trial court, Goldberg forfeited his claim that the 12 United States District Court Northern District of California 1 prosecutor committed misconduct in implying when questioning Goldberg that Smith was 2 shot four times in the back.”). The Court of Appeal then alternatively rejected Goldberg’s 3 claim on the merits. See id. at 10. Despite this merits analysis, the Court is precluded 4 from reviewing these alleged instances of misconduct because the Court of Appeal 5 independently reached its judgment according to an adequate procedural bar (failure to 6 object at trial). See Fauber, 43 F.4th at 1002. 7 Accordingly, the Court is procedurally barred from reviewing three of Goldberg’s 8 alleged instances of prosecutorial misconduct: (1) the prosecutor’s use of “murder” when 9 questioning a witness about their call to the district attorney’s office; (2) the prosecutor’s 10 use of “murder” during his closing argument; and (3) the prosecutor’s incorrect assertion, 11 when questioning Goldberg and during closing arguments, that the victim had been shot 12 four times in the back. However, because the Court of Appeal’s opinion is not crystal 13 clear about its independent reliance on a procedural bar to reject Goldberg’s claim 14 concerning the prosecutor’s use of the word “murder” during closing arguments, see Court 15 of Appeal Opinion at 7–8, 11, the Court will address the merits of this claim in the 16 following section. See Thomas, 273 F.3d at 1176. 17 18 b. Merits The Court now turns to the merits of Goldberg’s prosecutorial misconduct claims. 19 The Court concludes that the Court of Appeal neither contradicted nor unreasonably 20 applied clearly established federal law in holding that (1) the prosecutor’s use of the word 21 “murder” several times pre-verdict did not constitute misconduct or prejudice Goldberg; 22 (2) the prosecutor’s mischaracterizations and misstatements of evidence during trial did 23 not constitute misconduct or prejudice Goldberg; and (3) the alleged errors did not 24 cumulatively prejudice Goldberg. See Court of Appeal Opinion at 5–11; see also 28 25 U.S.C. § 2254(d). Moreover, even if Goldberg was denied due process due to cumulative 26 prosecutorial misconduct, the prosecutor’s actions did not have a substantial and injurious 27 effect on the jury’s verdict, given the evidence in this case. See Brecht v. Abrahamson, 28 507 U.S. 619, 637 (1993). 13 1 The Court proceeds by summarizing the law governing its review of Goldberg’s 2 prosecutorial misconduct claim, and analyzes each alleged instance of prosecutorial 3 misconduct in turn. After determining that no instance of alleged prosecutorial misconduct 4 rendered his trial fundamentally unfair, see Darden v. Wainwright, 477 U.S. 168, 181–82 5 (1986), the Court addresses Goldberg’s claim that the alleged instances of misconduct 6 cumulatively and prejudicially denied him his rights to due process and a fair trial. See 7 Pet. at 13–14. 8 United States District Court Northern District of California 9 i. Governing Law A defendant’s due process rights are violated when a prosecutor’s misconduct 10 renders a trial fundamentally unfair. Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the 11 touchstone of due process analysis fin cases of alleged prosecutorial misconduct is the 12 fairness of the trial, not the culpability of the prosecutor”). 13 Under Darden, the first issue is whether the prosecutor’s remarks were improper; if 14 so, the next question is whether such conduct infected the trial with unfairness. Tan v. 15 Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Deck v. Jenkins, 814 F.3d 954, 978 16 (9th Cir. 2016) (recognizing that Darden is the clearly established federal law regarding a 17 prosecutor’s improper remarks for AEDPA review purposes). A prosecutorial misconduct 18 claim is decided “‘on the merits, examining the entire proceedings to determine whether 19 the prosecutor’s remarks so infected the trial with unfairness as to make the resulting 20 conviction a denial of due process.’” Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995); 21 see Trillo v. Biter, 769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish society 22 for the misdeeds of the prosecutor; rather, our goal is to ensure that the petitioner received 23 a fair trial.”). 24 The key factor in determining whether misconduct amounted to a violation of due 25 process is whether the trial court issued a curative instruction. When a curative instruction 26 is issued, a court presumes that the jury has disregarded inadmissible evidence and that no 27 due process violation occurred. See Trillo, 769 F.3d at 1000 (“We presume that juries 28 listen to and follow curative instructions from judges.”). This presumption may be 14 United States District Court Northern District of California 1 overcome if there is an “overwhelming probability” that the jury would be unable to 2 disregard evidence and a strong likelihood that the effect of the misconduct would be 3 “devastating” to the defendant. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). In 4 cases involving prosecutorial misconduct based on improper remarks at closing, any risk 5 of prejudice can be mitigated by the issuance of a curative instruction that immediately 6 follows and focuses upon such remarks. United States v. Barragan, 871 F.3d 689, 709 (9th 7 Cir. 2017) (“A curative instruction can neutralize the harm of a prosecutor’s improper 8 statements if it is given immediately after the damage [is] done and mentions the specific 9 statements.” (cleaned up)). 10 Additional factors that a court may take into account in determining whether 11 prosecutorial misconduct rises to a level of due process violation include: (1) the weight of 12 evidence of guilt, compare United States v. Young, 470 U.S. 1, 19 (1985) (finding 13 “overwhelming” evidence of guilt) with United States v. Schuler, 813 F.2d 978, 982 (9th 14 Cir. 1987) (in light of prior hung jury and lack of curative instruction, new trial required 15 after prosecutor’s reference to defendant’s courtroom demeanor); (2) whether the 16 misconduct was isolated or part of an ongoing pattern, see Lincoln v. Sunn, 807 F.2d 805, 17 809 (9th Cir. 1987); (3) whether the misconduct relates to a critical part of the case, see 18 Giglio v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing 19 potential bias of witness especially significant because governments case rested on 20 credibility of that witness); and (4) whether a prosecutor’s comment misstates or 21 manipulates the evidence, see Darden, 477 U.S. at 182. 22 Even where a prosecutor’s conduct renders a trial fundamentally unfair, federal 23 habeas relief is in order only if the denial of due process based on prosecutorial 24 misconduct had a substantial and injurious effect or influence in determining the jury’s 25 verdict. See Brecht, 507 U.S. at 637. Petitioners are only entitled to habeas relief based on 26 trial error if they establish that it resulted in “actual prejudice.” Id. 27 28 ii. The Prosecutor’s Pre-Verdict Use of the Word “Murder” 15 United States District Court Northern District of California 1 Goldberg argues that the Court of Appeal unreasonably concluded that the 2 prosecutor’s repeated pre-verdict use of the word “murder” did not constitute prejudicial 3 misconduct. Pet. at 11. According to Goldberg, these errors contributed to his denial of 4 due process and a fair trial. See id. Respondent counters that the Court of Appeal 5 appropriately rejected Goldberg’s claims. Answer at 10. In the following paragraphs, the 6 Court considers the prosecutor’s use of the word “murder” when questioning witnesses and 7 then reviews the prosecutor’s use of the word during closing arguments. Ultimately, the 8 Court holds that the Court of Appeal reasonably concluded that the prosecutor’s repeated 9 use of the word “murder” during trial, while at times inappropriate, did not violate 10 Goldberg’s due process rights by rendering his trial fundamentally unfair. See Darden, 11 477 U.S. at 181. 12 (i) Questioning Witnesses 13 The Court first addresses the prosecutor’s use of the word “murder” when 14 questioning witness Steve S., Goldberg, and two additional witnesses. Improper 15 questioning of a witness is not alone sufficient to warrant reversal. Rather, courts must 16 determine whether the prosecutor’s behavior so infected the trial with unfairness to make 17 the resulting conviction a denial of due process. See Ortiz v. Stewart, 149 F.3d 923, 934 18 (9th Cir. 1998). In considering whether the questioning deprived the defendant of a fair 19 trial, courts review the witness’s entire testimony to determine the impact of the improper 20 questioning. See id. at 934–35. 21 The Court of Appeal reasonably concluded that there was no misconduct where the 22 prosecutor used the word “murder” when questioning witness Steve S., Goldberg, and two 23 additional witnesses. See id. Goldberg argues that “it [is] improper for a prosecutor to use 24 the term ‘murder’ in questioning a witness about an unadjudicated killing.” Pet. at 11 25 (quoting Price, 821 P.2d at 479–80). But as the Court of Appeal explained, when 26 questioning Steve S. and Goldberg, the prosecutor merely used the word “murder” to 27 clarify what Steve S. had previously told police—that Goldberg told him that he had 28 “murdered somebody.” See Court of Appeal Opinion at 6; Trial Tr. Vol. 4 (dkt. 15-3) at 16 1 894–95; Trial Tr. Vol. 6 (dkt. 16-1) at 1440–41. Moreover, the Court of Appeal 2 reasonably concluded that it was not misconduct for the two additional witnesses to use the 3 word “murder” in response to the prosecutor’s questions. See Court of Appeal Opinion at 4 6; Trial Tr. Vol. 2 (dkt. 15-1) at 311 (“And she had told me . . . [Goldberg] shot and 5 murdered [Smith], and [Smith] was dead.”); Trial Tr. Vol. 3 (dkt. 15-2) at 598 (“I was 6 around my house, . . . [j]ust doing, I guess, the murder routine.”). United States District Court Northern District of California 7 Even if the Court of Appeal erred in finding that the prosecutor did not commit 8 misconduct when questioning these witnesses, any misconduct did not so infect the trial 9 with unfairness that it violated Goldberg’s right to due process. See Darden, 477 U.S. at 10 181. The prosecutor did not misstate or manipulate evidence. See id. at 181–82. While 11 the prosecutor said the word “murder” seven times as he questioned Steve S., four of those 12 instances occurred in an isolated segment of a lengthy examination in which he attempted 13 to clarify Steve S.’s prior statements to police. See Trial Tr. Vol. 4 at 894–95. The 14 prosecutor merely referred to the case as charged when using the word three other times 15 during Steve S.’s testimony. See Trial Tr. Vol. 4 at 884–85, 903. The prosecutor’s use of 16 the word “murder” while cross-examining Goldberg was even more fleeting—he used the 17 word only three times when asking Goldberg about Steve S.’s prior statements. See Trial 18 Tr. Vol. 6 at 1440–41. Additionally, the trial court sustained defense counsel’s objection 19 and struck from the record one witness’s use of the word “murder” in response to the 20 prosecutor’s question. See Trial Tr. Vol. 2 at 311. The trial court also instructed the jury 21 that “nothing the attorneys say is evidence” and that “their questions are not evidence” 22 multiple times. See, e.g., Trial Tr. Vol. 6 at 1542. Although these instructions did not 23 immediately follow the prosecutor’s use of “murder,” see id., the Court presumes that the 24 jury adhered to them. See Trillo, 769 F.3d at 1000. Finally, and as outlined in Part 25 III.A.2.b.iv., the use of the word “murder” when questioning these witnesses did not render 26 Goldberg’s trial fundamentally unfair because there is significant evidence of his guilt. 27 See Young, 470 U.S. at 19. 28 Therefore, even if the prosecutor improperly used the word “murder” when 17 1 questioning these witnesses, the Court of Appeal was not unreasonable in concluding that 2 it did not cumulatively prejudice Goldberg. See Court of Appeal Opinion at 11. Although the prosecutor also used the word “murder” when questioning a witness United States District Court Northern District of California 3 4 about their call to the district attorney’s office, the Court is barred from assessing the 5 merits of this alleged misconduct because the Court of Appeal found it procedurally 6 defaulted. See Court of Appeal Opinion at 6–7 (“[W]hile the prosecutor did ask a witness 7 about his call to [the district attorney] regarding a ‘murder,’ Goldberg’s counsel failed to 8 object.”), 11 (“[E]ven if the prosecutor erred by describing Smith’s killing as a ‘murder,’ . . 9 . we find no cumulative prejudice because Goldberg failed to preserve the issues by 10 objecting.”); see also Coleman, 501 U.S. at 729–30. Thus, the Court cannot consider 11 whether the prosecutor’s use of the word “murder” in this instance contributed to a 12 cumulative prejudicial error that deprived Goldberg of his rights to due process and a fair 13 trial. See Coleman, 501 U.S. at 729–30. 14 (ii) Closing Arguments The Court next addresses Goldberg’s assertion that the prosecutor’s use of the word 15 16 “murder” dozens of times during his closing argument helped render Goldberg’s trial 17 fundamentally unfair. Pet. at 11. Although the Court understands this alleged instance of 18 prosecutorial misconduct to be procedurally barred on federal habeas review,5 the Court 19 will review Goldberg’s claim de novo out of an abundance of caution.6 In his federal habeas petition, Goldberg argues that the prosecutor’s use of the word 20 21 “murder” during his closing argument contributed to the deprivation of his due process 22 23 24 25 26 27 28 5 Goldberg’s counsel failed to object to the prosecutor’s use of the word “murder” during closing arguments. Court of Appeal Opinion at 7. On appeal, Goldberg brought an ineffective assistance of counsel claim to overcome procedural default. See id. After denying Goldberg’s ineffective assistance of counsel claim for lack of prejudice, the Court of Appeal implicitly held that Goldberg had indeed defaulted on this claim for failing to object. See id. at 7–8, 11. Goldberg neither renews his ineffective assistance of counsel claim nor contests the Court of Appeal’s analysis thereof in his federal habeas petition. See Pet. 6 The Court reviews the prosecutor’s use of the word “murder” during closing arguments de novo because the Court of Appeal appears only to have addressed the merits of Goldberg’s ineffective assistance of counsel claim in its opinion. See Court of Appeal Opinion at 7–8; see also Pirtle, 313 F.3d at 1167–68 (establishing that federal courts must review a petitioner’s claim on the merits where the state courts never reached the merits of the claim). 18 United States District Court Northern District of California 1 rights because it was improper under California law. Pet. at 11. Indeed, it is improper for 2 a prosecutor to use the word “murder in questioning a witness about an unadjudicated 3 killing.” Price, 821 F.2d at 703. However, as other federal courts in this Circuit have 4 noted, state courts typically do not find prejudice based on a prosecutor’s use of the word 5 “murder” at trial. See Smith v. Campbell, 06-CV-2972-EMC, 2012 WL 1657169, at *24 6 (N.D. Cal. May 24, 2012) (listing cases); Velasco v. Montgomery, 17-CV-5678-JAK 7 (JEM), 2019 WL 3021469, at *16 (C.D. Cal. Feb. 11, 2019) (citing id.), report and 8 recommendation adopted, 17-CV-5678-JAK (JEM), 2019 WL 3017753 (C.D. Cal. July 10, 9 2019). When a prosecutor’s statements during closing argument are at issue, federal courts 10 must judge them “in the context of the entire argument and the [court’s] instructions.” 11 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (a prosecutor’s closing 12 argument “must be judged in the context of the entire argument and the instructions”). 13 Here, “the prosecutor used the term [murder] more than a dozen times when discussing the 14 timeline of events and the evidence” during his closing argument. Court of Appeal 15 Opinion at 7; see Trial Tr. Vol. 6 at 1584–1600; Trial Tr. Vol. 7 (dkt. 16-2) at 1705–42. 16 However, even assuming that this was improper, it did not render Goldberg’s trial so 17 fundamentally unfair that it violated his due process rights. See Darden, 477 U.S. at 181. 18 First, the trial court “took special pains to correct any impression” that the jury 19 could consider the prosecutor’s use of the word “murder” during his closing argument as 20 evidence. Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1964). The trial court provided 21 three admonitions during the prosecutor’s closing argument, making clear that the jury 22 should decide the case based on evidence, not attorneys’ arguments. See Trial Tr. Vol. 6 at 23 1542; Trial Tr. Vol. 7 at 1709, 1723–24. The trial court also gave comprehensive 24 instructions to the jury outlining both their fact-finding role and the requirements for a 25 conviction. See, e.g., Trial Tr. Vol. 6 at 1542 (“You must decide what the facts are in this 26 case. You must only use the evidence that was presented in this courtroom. . . . In their . . . 27 closing arguments, the attorneys discuss the case[,] but their remarks are not evidence.”), 28 1556–75 (explaining the requirements of conviction and self-defense). The Court 19 1 presumes that the jury followed these instructions and that no due process violation 2 occurred. See Trillo, 769 F.3d at 1000; Darden 477 U.S. at 182. United States District Court Northern District of California 3 Second, viewing the prosecutor’s use of the word “murder” in light of the court’s 4 instructions and his entire closing argument, it appears that its effect on the jury was 5 minimal. See Ortiz-Sandoval, 81 F.3d at 898. Although the prosecutor erred by using the 6 word “murder” here, he also consistently used more appropriate terms like “shooting” or 7 “killing” when referring to the events at issue. See Trial Tr. Vol. 6 at 1584–1600; Trial Tr. 8 Vol. 7 at 1705–42. Additionally, the prosecutor’s use of the word occurred throughout a 9 lengthy closing argument. See id. Finally, the prosecutor himself also reminded the jury 10 that it was their job to apply the law to the evidence in reaching a verdict. See Trial Tr. 11 Vol. 6 at 1584–85; Trial Tr. Vol. 7 at 1718. 12 Overall, considering the prosecutor’s use of the word “murder” in the context of the 13 court’s curative instructions and the prosecutor’s entire closing argument, this conduct— 14 while ill-advised and improper—did not render Goldberg’s trial fundamentally unfair. See 15 Ortiz-Sandoval, 81 F.3d at 898; Darden, 477 U.S. at 181–82. 16 17 *** The Court concludes that the prosecutor’s use of the word “murder” when 18 questioning witnesses and during his closing argument did not violate Goldberg’s due 19 process rights. See Darden, 477 U.S. at 181–82. To start, the Court of Appeal did not 20 contradict or unreasonably apply federal law when it found no misconduct where the 21 prosecutor used the word “murder” when questioning several witnesses. See Court of 22 Appeal Opinion at 6; see also 28 U.S.C. § 2254(d). And even if the Court of Appeal 23 determined that the prosecutor improperly used the word “murder” when questioning a 24 separate witness about their call to the district attorney’s office, see Court of Appeal 25 Opinion at 6–7, the Court cannot consider this alleged instance of misconduct because it is 26 procedurally defaulted. See Coleman, 501 U.S. at 729–30. Finally, although the 27 prosecutor improperly used the word “murder” during his closing arguments, this 28 impropriety did not render Goldberg’s trial fundamentally unfair in violation of due 20 1 process. See Pirtle, 313 F.3d at 1167–68; Darden, 477 U.S. at 181–82. 2 iii. 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 Goldberg argues that the Court of Appeal unreasonably concluded that the prosecutor’s inaccurate characterizations and misstatements of evidence during trial did not violate his due process rights. Pet. at 11. Specifically, Goldberg takes issue with (1) the prosecutor’s depiction, during closing arguments, of the victim’s body as Goldberg fired the final shots and (2) the prosecutor’s assertion that the victim was shot four times in the back. Id. at 11–12. According to Goldberg, these acts of alleged misconduct contributed to the cumulative error that deprived him of his rights to due process and a fair trial. Id. at 13. Respondent argues that the prosecutor’s misstatements about the number of times the victim was shot are procedurally barred on federal habeas review, and even despite this procedural default, argues that the Court of Appeal reasonably denied both of Goldberg’s claims on the merits. See Answer at 8, 11. Because the Court agrees that it cannot consider Goldberg’s claim regarding the prosecutor’s misstatements about the number of shots fired into Smith’s back,7 See Coleman, 501 U.S. at 729–30, the Court will only address the merits of the prosecutor’s alleged mischaracterization of evidence. 17 18 19 The Prosecutor’s Characterizations and Misstatements of Evidence Goldberg asserts that the Court of Appeal unreasonably determined that the prosecutor made a “reasonable inference” when he asserted during closing arguments that Goldberg fired his final shots after Smith had fallen to the ground. Pet. at 12; see Court of 20 21 22 23 24 25 26 27 28 7 As explained in Part III.A.2.a, the Court of Appeal “clearly and expressly” found Goldberg’s claim procedurally defaulted. See Court of Appeal Opinion at 10 (“Goldberg did not object and thus failed to preserve the error for appeal.”), 10 n.2 (“[B]y 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.”), 11 (“Even if the prosecutor erred by . . . misstating the number of shots fired into Smith’s back, we find no cumulative prejudice because Goldberg failed to preserve the issues by objecting.”). Although the Court of Appeal also considered the merits of Goldberg’s claim, because it separately relied on a procedural bar, the claim is procedurally defaulted here. See Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir. 2000) (holding that, when “reliance upon [the state court’s] procedural bar rule was an independent and alternative basis for its denial of the petition, the review on the merits of the petitioner’s federal constitutional claim in federal court is precluded.”). Therefore, the Court cannot consider the merits of the alleged effect of the prosecutor’s misstatements about the number of shots fired into Goldberg’s back. See Coleman, 501 U.S. at 729–30. 21 United States District Court Northern District of California 1 Appeal Opinion at 9. A prosecutor’s misleading and inflammatory arguments may violate 2 a defendant’s due process right to a fair trial. Darden, 477 U.S. at 181–82. However, 3 “[p]rosecutors have considerable leeway to strike ‘hard blows’ based on the evidence and 4 all reasonable inferences from the evidence.” United States v. Henderson, 241 F.3d 638, 5 652 (9th Cir. 2000). Prosecutors are “free in argument to suggest that the jury draw 6 reasonable inferences from the evidence presented at trial.” United States v. Flores, 802 7 F.3d 1028, 1035 (9th Cir. 2015). Remarks that are “undesirable or even universally 8 condemned” do not alone establish prosecutorial misconduct. Darden, 477 U.S. at 181. 9 Here, the Court of Appeal reasonably determined that the prosecutor made a 10 “reasonable inference” based on the evidence at trial when he asserted that the victim was 11 on the ground as Goldberg fired the final shots. See id. Goldberg particularly criticizes 12 the prosecutor’s reenactment of the final moments of the shooting and his reliance on 13 allegedly uncorroborated eyewitness testimony that described the victim as being on the 14 ground at that time. Pet. at 12. However, as the Court of Appeal explained, the 15 prosecutor’s assertion was reasonable because the sole eyewitness of the shooting testified 16 that he saw the victim “laying on the ground” and “the dust flying out from under him as 17 the [final] bullets were going through.” See Court of Appeal Opinion at 9; Trial Tr. Vol. 2 18 at 468. Although Goldberg questions the reliability of this account because “no bullets 19 exited the victim’s body,” Pet. at 12, the Court of Appeal emphasized that even if the 20 witness was incorrect about seeing dust, “the more important point is that [the witness] 21 saw [the victim] laying on the ground while being shot.” Court of Appeal Opinion at 9. 22 Indeed, the Court of Appeal correctly pointed out that no one except Goldberg had 23 contradicted the witness’s testimony at trial. See id. On the contrary, the jury could have 24 reasonably determined that other witnesses corroborated this account because they testified 25 that they heard a pause between the first few shots and the final shots. See id.; Trial Tr. 26 Vol. 2 at 399, 436, 465–66, 488. 27 28 Although the Court of Appeal admitted that “evidence did not indicate the position of Smith’s body when he was shot” and that Goldberg pointed to conflicting evidence as to 22 1 the source of the dust, a review of the record reveals that the prosecutor made a fair 2 inference based on the evidence presented at trial. See Court of Appeal Opinion at 9. As 3 the Court of Appeal explained, the evidence showed that Smith had bruising on his upper 4 left chest and his upper left arm, as well as two bullet entry points on his back. See id.; 5 Trial Tr. Vol. 4 at 850–52. In addition, the Court of Appeal also determined that other 6 witnesses corroborated the eyewitness’s testimony because they heard a pause after the 7 first or the second shots but before Goldberg fired the last shots. Court of Appeal at 9; see 8 also Trial Tr. Vol. 2 at 399, 436, 465–66, 488. United States District Court Northern District of California 9 Even if the prosecutor’s actions constituted misconduct, his assertion that Smith 10 was on the ground as Goldberg fired his final shots did not render Goldberg’s trial 11 fundamentally unfair. See Darden, 477 U.S. at 181–82. As discussed above, the weight of 12 the evidence—including witness testimony and physical evidence—supported a guilty 13 verdict. See Young, 470 U.S. at 19. Although defense counsel did not have an 14 opportunity to respond to the assertions regarding Smith’s body position that the 15 prosecutor made in his rebuttal, see Trial Tr. Vol. 7 at 1721, 1723, defense counsel 16 previously stated that there was “no evidence of any shots on the ground” during the 17 defense’s closing argument. See Trial Tr. Vol. 6 at 1627; see also Trillo, 769 F.3d at 1001 18 (reviewing courts may examine whether defense counsel had the opportunity to rebut 19 offending comments). Defense counsel also disputed the eyewitness’s version of events, 20 which placed Smith on the ground as Goldberg fired his last shots at closing. Trial Tr. 21 Vol. 7 at 1655–56. While the evidence concerning Smith’s position when the final shots 22 hit him is not clear, as the Court of Appeal noted, “[i]t was a matter for the jury to decide 23 whether the [prosecutor’s] inference was faulty or illogical.” Court of Appeal Opinion at 9 24 (quoting People v. Tully, 282 P.3d 173, 241–42 (Cal. 2012)). Additionally, because the 25 prosecutor’s assertion was based on witness testimony and physical evidence from the 26 record, the prosecutor did not misstate the facts of this case. See, e.g., id. at 1723; see also 27 Darden, 477 U.S. at 182. The trial court also instructed the jury that “nothing the attorneys 28 say is evidence in this case” immediately after the prosecutor indicated that Smith was 23 1 “probably” on the ground as “[Goldberg] shot those additional rounds.” Trial Tr. Vol. 7 at 2 1723–24; see also United States v. Barragan, 871 F.3d 689, 709 (9th Cir. 2017) (explaining 3 that a curative instruction can mitigate any risk of prejudice if the instruction immediately 4 follows and focuses upon a prosecutor’s improper remarks at closing). 5 6 on the ground as Goldberg fired his final shots did not render Goldberg’s trial 7 fundamentally unfair in violation of due process. See Darden, 477 U.S. at 181–82. 8 United States District Court Northern District of California Accordingly, considered in context, the prosecutor’s assertion that Smith was lying The Court therefore concludes that the Court of Appeal’s rejection of Goldberg’s 9 prosecutorial misconduct claim regarding the prosecutor’s alleged mischaracterization of 10 the victim’s body position as Goldberg fired the final shots was neither contrary to, nor an 11 unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). 12 In addition, the Court is procedurally barred from considering whether the prosecutor’s 13 misstatements about the number of shots fired into Smith’s back contributed to a 14 cumulative error that deprived Goldberg of his rights to due process and a fair trial. See 15 Coleman, 501 U.S. at 729–30. 16 iv. 17 Cumulative Prosecutorial Error Goldberg argues that the prosecutor’s improper pre-verdict uses of the word 18 “murder” and mischaracterizations of evidence cumulatively prejudicially violated his 19 constitutional right to due process and a fair trial. Pet. at 13–14. According to Goldberg, 20 these alleged errors had a substantial and injurious effect on the verdict because they 21 “struck at the central disputed issue at trial: whether the nature of the shooting supported 22 second-degree murder or was an act of self-defense.” Id. at 13. The Court of Appeal 23 determined that there was no cumulative prejudice against Goldberg because where the 24 prosecutor engaged in improper conduct, “Goldberg failed to preserve the issues by 25 objecting.” Court of Appeal Opinion at 14. Respondent argues that the Court of Appeal’s 26 conclusion is reasonable, and that, if constitutional error occurred, Goldberg fails to show 27 that it had a substantial and injurious effect on the verdict. Answer at 13, 16. 28 Because Goldberg claims that the prosecutor’s alleged instances of misconduct, 24 United States District Court Northern District of California 1 when considered together, both deprived him of his due process rights and prejudiced his 2 case, Pet. at 13–14, the Court will address the claims together. 3 In some cases, although no single trial error is sufficiently prejudicial to warrant 4 reversal, the cumulative effect of several errors may still prejudice a defendant so much 5 that his conviction must be overturned. See United States v. Preston, 873 F.3d 829, 835 6 (9th Cir. 2017) (reversing conviction for aggravated sexual abuse of a child where multiple 7 errors unfairly bolstered the victim’s credibility, defendant was portrayed as the “type of 8 person” who would molest a child, and the government’s case hinged entirely on the 9 victim’s credibility with little corroborative evidence). “Under traditional due process 10 principles, cumulative error warrants habeas relief only where the errors have so infected 11 the trial with unfairness as to make the resulting conviction a denial of due process.” Parle 12 v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (cleaned up). “Such ‘infection’ occurs 13 where the combined effect of the errors had a ‘substantial and injurious effect or influence 14 on the jury’s verdict.’” Id. at 933 (citing Brecht, 507 U.S. at 637)). 15 Cumulative error is more likely to be found prejudicial when the government’s case 16 is weak. See United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (finding 17 prejudice resulting from cumulative effect of improper vouching by prosecutor, improper 18 comment by prosecutor about defense counsel, and improper admission of evidence 19 previously ruled inadmissible required reversal even though each error alone might not 20 have warranted reversal). The Ninth Circuit has “granted habeas relief under the 21 cumulative effects doctrine when there is a ‘unique symmetry’ of otherwise harmless 22 errors, such that they amplify each other in relation to a key contested issue in [a] case.” 23 Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011); see Parle, 505 F.3d at 934 24 (finding a cumulative error due process violation where all of the trial court errors created 25 a “unique and critical thread” that rendered the petitioner’s defense “far less persuasive 26 than it might have been.”) (quoting Chambers, 410 U.S. at 294)). 27 28 However, “[i]f the evidence of guilt is otherwise overwhelming” and “the errors are considered harmless,” courts will generally affirm a conviction. Parle, 505 F.3d at 928. 25 1 To determine whether constitutional errors of the trial type are harmless on federal habeas 2 review, courts must review the record “as a whole,” determine the relative harm caused by 3 the errors, and ascertain whether they “had a substantial and injurious effect or influence in 4 determining the jury’s verdict.” Brecht, 507 U.S. at 637–38. 5 6 a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). 7 Similarly, there can be no cumulative error when there has not been more than one error. 8 United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012). 9 United States District Court Northern District of California Where there is no single constitutional error, nothing can accumulate to the level of The Court proceeds as follows. First, the Court will address the issue of the Court 10 of Appeal’s implicit determination that there are no constitutional errors to accumulate into 11 a cumulative deprivation of due process or prejudicial effect. See Court of Appeal 12 Opinion at 11; see also Hayes, 632 F.3d at 524. Second, the Court will determine whether 13 the prosecutorial errors in this case, if any, rendered Goldberg’s trial fundamentally unfair. 14 See Parle, 505 F.3d at 927. Third, the Court will review the record as a whole and 15 consider whether cumulative prosecutorial error prejudiced Goldberg and, therefore, 16 warrants habeas relief. See Brecht, 507 U.S. at 637–38. Ultimately, the Court concludes 17 that Goldberg fails to show that the prosecutor’s actions in this case, in combination, 18 rendered Goldberg’s trial fundamentally unfair or had a substantial or injurious effect on 19 the verdict. See Parle, 505 F.3d at 927; Brecht, 507 U.S. at 637. The Court of Appeal 20 reasonably concluded that there were no errors to accumulate. See Court of Appeal 21 Opinion at 11; see also Hayes, 632 F.3d at 524. 22 As discussed above, the Court of Appeal held that several of the prosecutor’s 23 alleged acts of misconduct were not improper; rather, many of the prosecutor’s statements 24 were justified by the evidence in this case. See Court of Appeal Opinion at 6, 9. The 25 prosecutor’s use of the word “murder” when questioning Steve S. and Goldberg was not 26 improper because the prosecutor merely repeated their use of the word in their statements 27 and testimonies. See Court of Appeal Opinion at 6; Trial Tr. Vol. 4 at 894–95; Trial Tr. 28 Vol. 6 at 1440–41. The prosecutor also did not commit misconduct when two additional 26 United States District Court Northern District of California 1 witnesses used the word “murder” to respond to the prosecutor’s questions. See Court of 2 Appeal Opinion at 6; Trial Tr. Vol. 2 at 311, 598. In addition, the prosecutor did not 3 improperly assert at closing arguments that Smith was on the ground when Goldberg fired 4 the final shots, because the prosecutor made a reasonable inference from the evidence 5 presented at trial, including eyewitness testimony that placed Smith on his back, a report 6 showing that Goldberg’s initial shots were fatal, and bruising on Smith’s chest and upper 7 arm. See Court of Appeal Opinion at 9; Trial Tr. Vol. 2 at 468; Trial Tr. Vol. 4 at 849–52. 8 Even if forensic evidence contradicted the witness’s testimony about dust blowing from 9 bullets exiting Smith’s body, only Goldberg’s statements contradicted the fact that the 10 witness saw Smith on the ground while being shot. See Court of Appeal Opinion at 9. 11 The Court of Appeal also found three instances in which the prosecutor did use 12 improper statements—(1) the prosecutor’s use of the word “murder” when questioning a 13 witness about their call to the district attorney; (2) the prosecutor’s repeated use of the 14 word “murder” during closing arguments; and (3) the prosecutor’s misstatements about the 15 number of times Goldberg shot Smith in the back when questioning Goldberg and during 16 closing arguments—procedurally defaulted. See Court of Appeal Opinion at 6–8, 10, 10 17 n.2, 11. Given that all of the alleged instances of prosecutorial misconduct in Goldberg’s 18 19 federal habeas petition either do not constitute misconduct or are barred on federal habeas 20 review, see Coleman, 501 U.S. at 729–30, there are no errors to accumulate to establish a 21 cumulative due process violation or prejudice to Goldberg. See Hayes, 632 F.3d at 524. 22 Thus, the Court of Appeal neither contradicted nor unreasonably applied federal law in 23 finding no cumulative prejudice. See Court of Appeal Opinion at 11; see also 28 U.S.C. § 24 2254(d)(1). However, even if there are prosecutorial errors to accumulate,8 Goldberg has not 25 26 27 28 8 The Court cannot accumulate Goldberg’s allegations regarding the prosecutor’s use of the word “murder” when asking a witness about their call to the district attorney or the prosecutor’s misstatements about the number of times Smith was shot in the back due to procedural default. See Court of Appeal Opinion at 6, 10, 10 n.2, 11; see also Coleman, 501 U.S. at 729–30. 27 United States District Court Northern District of California 1 shown that, in combination, the errors rendered his trial fundamentally unfair. See Parle, 2 505 F.3d at 927. Goldberg argues that the prosecutor’s improper and “thematic” use of the 3 word “murder” and “misuse” of the witness testimony that placed Smith on the ground as 4 Goldberg fired his last shots each affected the heart of the key issue at trial: whether the 5 shooting constituted second-degree murder or self-defense. See Pet. at 13–14. To be sure, 6 the prosecutor’s conduct was not perfect, but the Court finds no “symmetry of error” that 7 warrants reversal. See Ybarra, 656 F.3d at 1001. 8 The prosecution’s case was substantial and multifaceted, relying on testimony from 9 several witnesses (including an eyewitness) and forensic evidence. See, e.g., Trial Tr. Vol. 10 2 at 472 (a witness testified that he saw dust blowing as Smith was shot while on the 11 ground); Trial Tr. Vol. 3 at 635 (a witness remembered Goldberg saying, “I’m going to kill 12 that motherfucker.”); Trial Tr. Vol. 4 at 844, 848–51 (Goldberg shot Smith five times; 13 three times in the chest, two times in the back); Trial Tr. Vol. 5 at 1220–21 (a witness 14 testified that Goldberg initially said that his first shot was accidental but did not know why 15 he pulled the trigger several more times). 16 Goldberg is correct that the prosecutor’s use of the word “murder” and arguments 17 concerning Smith’s body position as he was being shot each touch on the issue of whether 18 the shooting constituted second-degree murder or self-defense. See Pet. at 13–14. 19 However, these alleged instances of misconduct did not amplify each other or create a 20 unique synergistic effect. See Parle, 505 F.3d at 933. For example, the claimed error 21 concerning the prosecution’s use of the word “murder” when questioning Steve S. and 22 Goldberg about Steve S.’s prior statements did not suggest the validity of the prosecutor’s 23 argument that Smith was on the ground when Goldberg fired his final shots. See Trial Tr. 24 25 26 27 28 Although the Court of Appeal also found Goldberg’s allegations concerning the prosecutor’s use of the word “murder” during closing arguments procedurally defaulted, the Court will consider the merits of this allegation in case it is not barred on federal review. See Court of Appeal Opinion at 7–8, 11; see also Zapata 788 F.3d at 1111–12. Therefore, assuming arguendo that prosecutorial error exists, such errors may include: (1) the prosecutor’s use of the word “murder” when questioning Steve S., Goldberg, and two additional witnesses; (2) the prosecutor’s use of the word “murder” during closing arguments; and (3) the prosecutor’s assertion that Smith was laying on the ground as Goldberg fired his final shots. See Court of Appeal Opinion at 6–9. 28 United States District Court Northern District of California 1 Vol. 2 at 468; Trial Tr. Vol. 4 at 894–95; Trial Tr. Vol. 6 at 1440–41. The trial court also 2 mitigated any effects of the prosecutor’s use of the word “murder” during his closing 3 argument and the prosecutor’s assertion that Smith was on the ground when Goldberg fired 4 his final shots by repeatedly providing admonitions and instructions advising the jury that 5 the attorneys’ remarks are not evidence. See Trial Tr. Vol. 6 at 1542, 1556–75; Trial Tr. 6 Vol. 7 at 1709, 1723–24. The Court presumes that the jury followed these instructions. 7 See Trillo, 769 F.3d at 1000. The prosecutor also mitigated the effect of his use of the 8 word “murder” during his closing argument by consistently using more neutral terms like 9 “killing” and “shooting,” and reminding the jury that it was their job to apply the law to the 10 evidence in reaching their verdict. See Trial Tr. Vol. 6 at 1584–1600; Trial Tr. Vol. 7 at 11 1705–42. 12 Similarly, the assumed errors did not render Goldberg’s defense “far less persuasive 13 than it might [otherwise] have been.” See Parle, 505 F.3d at 927–28. Goldberg argues that 14 the prosecutor improperly relied on eyewitness testimony that contradicted forensic 15 evidence to argue that Smith was on the ground when Goldberg fired his last shots, which 16 was central to disproving his self-defense theory. Pet. at 13–14. However, Goldberg’s 17 counsel was not prevented from arguing self-defense at trial. See Ybarra, 656 F.3d at 1001 18 (finding no “unique symmetry of error” where “the defense was not prevented from 19 presenting counterbalancing arguments”). In fact, Goldberg’s counsel did assert a self- 20 defense theory and contested the issue of whether Smith was on the ground as Goldberg 21 shot him. See Trial Tr. Vol. 6 at 1627 (stating that there was “no evidence of any shots on 22 the ground” at closing arguments); Trial Tr. Vol. 7 at 1655–56 (pointing to a potential 23 alternative source of the dust the eyewitness saw flying out from under Smith while he was 24 shot), 1688–93 (summarizing Goldberg’s self-defense theory during defense counsel’s 25 closing argument). Goldberg also presented evidence in support of his self-defense theory. 26 Court of Appeal Opinion at 3. As the Court of Appeal concluded, “[a]lthough Goldberg 27 points to conflicting evidence” concerning whether Smith was on the ground when 28 Goldberg fired his final shots, a combination of errors did not inhibit the jury’s ability to 29 1 determine whether the evidence supported second-degree murder or self-defense. See 2 Court of Appeal Opinion at 9; cf. Parle, 505 F.3d at 930 (concluding that cumulative trial 3 errors rendered a petitioner’s defense far less persuasive where “all of the improperly 4 excluded evidence . . . supported [the defendant’s] defense that he had the requisite state of 5 mind for first-degree murder . . . all of the erroneously admitted evidence . . . undermined 6 [his] defense and credibility and bolstered the State’s case.”) (emphasis in original). 7 8 considered in combination, did not render Goldberg’s defense “far less persuasive” or 9 infect his trial with so much unfairness as to deprive him of due process. See Ybarra, 656 10 11 United States District Court Northern District of California Accordingly, the Court finds that the prosecutorial errors in this case, even when F.3d at 1001. Finally, the Court declines to hold that any of Goldberg’s claims of cumulative 12 prosecutorial error caused prejudice that had a substantial or injurious effect on the verdict. 13 See Brecht, 507 U.S. at 637. As Respondent argues, “the evidence that [Goldberg] 14 murdered the victim rather than shot him in self-defense was strong.” Answer at 13; see 15 Parle, 505 F.3d at 928 (establishing that “if the evidence of guilt is otherwise 16 overwhelming” and “the errors are considered harmless,” courts generally affirm 17 convictions). 18 There was ample evidence to establish that Goldberg planned, prepared, and 19 intended to kill Smith, including witness testimony indicating that Goldberg was “irate” 20 after learning of his wife’s affair with Smith, Trial Tr. Vol. 2 at 303–04; Goldberg’s 21 testimony that he shot his firearm at a tree that he used for target practice the morning of 22 the shooting and reloaded it and placed it in his van, Trial Tr. Vol. 5 at 1341–42; witness 23 testimony establishing that Goldberg said that he “was going to kill that motherfucker” in 24 reference to Smith, Trial Tr. Vol. 3 at 624; and witness testimony from road crew members 25 who saw Goldberg driving slowly back and forth in front of Smith’s house before the 26 shooting, Trial Tr. Vol. 2 at 407–08, 423, 429. A witness also testified that Goldberg said, 27 “I thought you were my friend,” shortly before he began shooting Smith. Trial Tr. Vol. 1 28 (dkt. 15) at 143. Other witnesses heard a pause between Goldberg’s initial shots and the 30 1 rest of the shots, Trial Tr. Vol. 2 at 399, 436, 465–66, 488, and an eyewitness testified that 2 he saw Smith on the ground as he was shot, and that dust flew out from under him with 3 each round. Id. at 468, 472, 476. Although Goldberg’s counsel pointed to conflicting 4 evidence as to the source of the dust, only Goldberg’s testimony contradicted the fact that 5 the eyewitness saw Smith on the ground as he was being shot. See Court of Appeal 6 Opinion at 9; Trial Tr. Vol. 7 at 1655–56. Forensic evidence established that Goldberg 7 shot Smith five times, four of which were fatal, and two of which were in the back. Trial 8 Tr. Vol. 4 at 844, 848–51. United States District Court Northern District of California 9 Goldberg’s actions following the shooting also support a murder conviction. 10 Witnesses testified that Goldberg fled the scene immediately following the shooting and 11 later abandoned his vehicle. Trial Tr. Vol. 2 at 340, 390–93; Trial Tr. Vol. 4 at 896–97. 12 Witness Steve S. testified that Goldberg had told him and Goldberg’s mother that he had 13 just shot someone. Trial Tr. Vol. 4 at 894–95, 900–01, 1047. In addition, Goldberg 14 initially told the defense psychologist that his first shot at Smith was an accident and that 15 he did not know why he continued firing. Trial Tr. Vol. 5 at 1220–21. 16 Because the record establishes that there was substantial evidence that Goldberg 17 committed second-degree murder, the prosecutor’s alleged acts of misconduct, taken 18 together, did not “substantially or injuriously [a]ffect the verdict” to prejudice Goldberg. 19 See Parle, 505 F.3d at 928; Brecht, 507 U.S. at 637–38. 20 Therefore, even if there are prosecutorial errors to accumulate in this case, Goldberg 21 is not entitled to relief based on cumulative effect because the alleged, non-barred 22 instances of misconduct neither rendered his trial fundamentally unfair nor substantially or 23 injuriously affected the verdict. See Parle, 505 F.3d at 927–28; Brecht 507 at 637–38. 24 25 3. Summary as to Procedural Misconduct For the reasons above, the Court of Appeal’s rejection of Goldberg’s individual and 26 cumulative prosecutorial misconduct claims was not contrary to, or an unreasonable 27 application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). 28 The Court of Appeal also did not base its conclusion on an unreasonable determination of 31 United States District Court Northern District of California 1 the facts. See id. § 2254(d)(2). Rather, the Court of Appeal reasonably concluded that the 2 prosecutor’s pre-verdict use of the word “murder” and misstatements and 3 mischaracterizations of evidence did not violate Goldberg’s due process rights by 4 rendering his trial fundamentally unfair, see Darden, 477 U.S. at 181, or prejudice him see 5 Brecht, 507 U.S. at 637. Goldberg is not entitled to federal habeas relief on the basis of 6 prosecutorial misconduct. 7 B. 8 Goldberg claims that he was denied his Sixth and Fourteenth Amendment rights to 9 an impartial jury when two jurors discussed sentencing during their deliberations. Pet. at Juror Misconduct 10 14–17. As explained below, the Court concludes that the California Court of Appeal 11 reasonably rejected Goldberg’s claim. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Court of Appeal Opinion The Court of Appeal summarized the factual background for Goldberg’s juror misconduct claim as follows: First, we summarize relevant information from juror declarations that Goldberg submitted in support of his motion for a new trial as well as juror testimony taken as part of the trial court’s inquiry on juror misconduct, excluding information barred by Evidence Code section 1150 relating to juror’s mental processes and subjective reasoning. (People v. Cox (1991) 53 Cal. 3d 618, 694, overruled on other grounds in People v. Doolin (2009) 45 Cal. 4th 390, 421; People v. Danks (2005) 32 Cal. 4th 269, 302 (Danks); Evid. Code, § 1150.) The controversy stems from a brief exchange between Juror No. 3 and Juror No. 11. During deliberations, Juror No. 3 stated she could not give Goldberg a 20-year sentence because he was too young. Juror No. 11, the foreperson, said that in a previous trial for which he was a juror, “the defendant got eight years for murder one,” and “in our California system people serve half of their time.” Juror No. 8 recalled that several jurors other than Juror No. 11 said that sentencing was the judge’s job, not the jury’s. Juror No. 11 was “sure” he did not mention Goldberg’s name in commenting about sentencing. According to several jurors, the sentencing discussion was short, comprised of three or four sentences, and occurred “just in passing.” Two jurors (Nos. 5 and 10) did not hear or could not recall any discussion of sentencing. Juror No. 3 explained, “That was just an aside, the whole penalty thing . . . 32 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 [I]t was somewhat chaotic. There were . . . discussions going on all around the room.” “[P]eople were getting coffee and kind of moving around the room[.]” The sentencing comment occurred part way, possibly midway, or as much as three-quarters through the deliberations but not at the end. According to Juror No. 12, the jury continued to discuss manslaughter “towards the end of the deliberations.” Juror No. 11 testified that the jury spent the rest of the time “talking about what charges the evidence proved.” Juror Nos. 1, 12, and 4 confirmed that the deliberations focused on the factors necessary to prove the charges. According to Juror No. 1, sentencing “was not discussed to reach one verdict or another.” The trial court found that Juror No. 11—the foreperson—was a credible witness and that Juror No. 3 was not credible, and Goldberg does not persuade us that these findings are unsupported. (In re Manriquez (2018) 5 Cal. 5th 785, 804 [assuming trial court considered juror’s inconsistent statements and demeanor when making credibility findings].) 12 Court of Appeal Opinion at 12–13. The Court of Appeal rejected Goldberg’s juror 13 misconduct claim as follows: 14 17 Goldberg next challenges the trial court’s denial of his motion for a new trial based on juror misconduct. We determine de novo whether any misconduct prejudiced the defendant (People v. Caro (2019) 7 Cal. 5th 463, 521 (Caro); see also People v. Miles (2020) 9 Cal. 5th 513, 602 (Miles)) and conclude that there was no substantial likelihood that Goldberg suffered prejudice from juror misconduct. 18 .... 19 21 Goldberg’s first claim of misconduct concerns jurors who briefly discussed sentencing during deliberations. (People v. Allison (1989) 48 Cal. 3d 879, 892 [“A defendant’s possible punishment is not a proper matter for the jury’s consideration in determining guilt or innocence.”].) 22 .... 23 Juror misconduct gives rise to a presumption of prejudice. (In re Boyette (2013) 56 Cal. 4th 866, 892 (Boyette).) “The presumption of prejudice may be rebutted by an affirmative evidentiary showing ‘or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.’” (In re Carpenter (1995) 9 Cal. 4th 634, 657 (Carpenter); see also Caro, supra, 7 Cal. 5th at p. 521.) 15 16 20 24 25 26 27 28 33 6 When the misconduct concerns information about a party or case from extraneous sources, we apply a two-prong test to determine whether a substantial likelihood of juror bias exists: (1) is the extraneous material, judged objectively, so prejudicial that it is inherently likely to have influenced a juror; or (2) even if the information is not inherently prejudicial, is it substantially likely a juror was “ ‘actually biased’ ” against the defendant? (Boyette, supra, 56 Cal. 4th at p. 891; see also Miles, supra, 9 Cal. 5th at p. 601.) If the court finds a substantial likelihood of bias under either prong, the verdict will be set aside. (Carpenter, supra, 9 Cal. 4th at p. 655; see also Miles, supra, 9 Cal. 5th at p. 601.) 7 .... 8 Applying the first prong of the test, we conclude the discussion was not “ ‘so prejudicial in and of itself that it [wa]s inherently and substantially likely to have influenced a juror[.]’ ” (Boyette, supra, 56 Cal. 4th at p. 891.) 1 2 3 4 5 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 First, the sentencing discussion was not particularly inflammatory. (See Miles, supra, 9 Cal. 5th at p. 602 [considering the nature of extrinsic information and whether it was “inflammatory” in determining whether it was “inherently and substantially likely to have influenced a juror”].) As detailed above, Jurors No. 3 and 11 discussed the possible length of the sentence part way through deliberations. While the sentencing discussion was irrelevant and contained erroneous information, it was quite brief, and sentencing “was not discussed to reach one verdict or another.” Further, it was immediately followed by admonitions that the jury may not consider sentencing. As our Supreme Court has observed, “speculation concerning punishment” is “an inevitable feature of the jury system.” (Dykes, supra, 46 Cal. 4th at p. 812.) The brief consideration of sentencing by a jury may be cured and need not require reversal of the judgment. (See, e.g., People v. Loker (2008) 44 al. 4th 691, 750 (Loker) [“it was improper for the jurors to discuss the costs of punishment, but . . . the misconduct [was] not prejudicial because the discussion was brief and was met with an admonition from the foreperson”]; People v. Leonard (2007) 40 Cal. 4th 1370, 1426 (Leonard) [jury’s discussion of the costs of life imprisonment was harmless where foreperson reminded the jury this was not an appropriate consideration].) Second, in the context of the trial record here, the discussion was unlikely to have made a difference. (Carpenter, supra, 9 Cal. 4th at p. 654; see also id. [“[T]he stronger the evidence, the less likely it is that the extraneous information itself influenced the verdict.”].) There was overwhelming evidence supporting a second-degree murder conviction based on implied, if not express, malice. (See People v. Watson (1981) 30 Cal. 3d 290, 296.) Angry at Smith for sleeping with his wife, Goldberg told his neighbor Chad H. he was going to “kill that motherfucker.” Minutes later, he took his loaded pistol—which he had used earlier that morning for target 34 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 practice—and drove to Smith’s house. He recognized Smith’s truck, saw him emerge from the house, and confronted him on the driveway. After telling Smith “I thought you were my friend,” he shot him five times, twice in the back. While the evidence of Goldberg’s guilt was overwhelming, his self-defense and imperfect self-defense arguments were comparatively weak. Goldberg never offered a plausible explanation for arming himself with a gun when he exited his van: although he testified he was fearful of Smith, there was no evidence that Smith bore him animosity. To the contrary, Goldberg was the one who was angry, and he chose to confront Smith with a loaded revolver when he could have simply driven away. (See People v. Eulian (2016) 247 Cal. App. 4th 1324, 1332–1333 [no right to self-defense if defendant provoked fight as an excuse to use force].) Moreover, Goldberg’s self-defense arguments were based largely on his own testimony that he feared for his life when Smith grabbed his wrist. It is undisputed, however, that Smith was unarmed, and the only independent witness who saw the shooting said that Smith was on the ground while Goldberg continued firing at him. Goldberg’s heat-of-passion argument was similarly tenuous. Heat of passion is a state of mind that reduces the defendant’s culpability for an unlawful killing if, “ ‘ “at the time of the killing, the reason for the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflections, and from such passion rather than from judgment.” ’ ” (People v. Beltran (2013) 56 Cal. 4th 935, 942; see also People v. Nelson (2016) 1 Cal. 5th 513, 538–539.) Goldberg asserts that he was distraught after learning of Smith’s affair with his wife, he had had no time to cool off, and therefore in shooting Smith he reacted “ ‘ “ ‘ from a passion rather than from judgment.’ ” ’ ” However, this argument contradicted his testimony that he shot Smith because his gun discharged accidentally and he believed his life was in danger, rather than because he was angry or jealous toward Smith. He further undermined this argument by testifying that shortly before the shooting, he went on a mundane errand to get a new phone at the Verizon store, a 50minute drive each way. (See 1 Witkin, Cal. Crim. Law (4th Ed. 2020), Ch. IV, § 239 [“circumstantial evidence [such] as rational conversation, transaction of other business, or preparation for the killing” may show that defendant’s passions cooled], citing People v. Golsh (1923) 63 Cal. App. 609, 617.) We conclude the discussion was not “inherently and substantially likely” to have made a difference in the verdict. (See Danks, supra, 32 Cal. 4th at p. 305 [“the likelihood of bias under the inherent prejudice test ‘must be substantial.’”].) People v. Echavarria (2017) 13 Cal. App. 5th 1255, relied upon by Goldberg, is unavailing. That case was close, the evidence of premeditation was slim, and the jury’s 35 1 discussion of sentencing was more substantial. (Id. at pp. 1263, 1267–1268, 1270–1271.) 2 .... 3 Neither do we find prejudice under the second prong of the test, which asks whether there is a substantial likelihood that a juror was actually biased, based on a review of the entire record. (See Boyette, supra, 56 Cal. 4th at p. 883; Carpenter, supra, 9 Cal. 4th at p. 654.) Goldberg argues that the record indicates two jurors changed their votes from manslaughter to second degree murder at some point after the sentencing discussion. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 However, one of those jurors was Juror No. 10, who did not even recall that sentencing was discussed. With respect to the other juror, Juror No. 3, Goldberg relies primarily on statements of her mental processes that are barred under Evidence Code section 1150. (Cox, supra, 53 Cal. 3d at p. 694.) In any event, as noted, the trial court reasonably concluded that Juror No. 3 was not credible. Her statements were inconsistent, but she herself suggested that the sentencing discussion was inconsequential: “That was just an aside, the whole penalty thing.” She described it as a “comment” or “interjection” as “people were getting coffee and kind of moving around the room.” Finally, the evidence does not suggest any other juror was likely to have been actually biased by the sentencing discussion. Although Juror No. 11 commented on sentencing, he testified that he did so in response to Juror No. 3 raising the issue. Moreover, the brief discussion was immediately followed by juror admonitions that they should not consider sentencing. (People v. Pinholster (1992) 1 Cal. 4th 865, 925 [“The presumption of prejudice may be dispelled by an admonition to disregard the improper information.”], disapproved of on other grounds by People v. Williams (2010) 49 Cal. 4th 405, 459; Loker, supra, 44 Cal. 4th at p. 750; Leonard, supra, 40 Cal. 4th at p. 1426.) The jury also received an instruction on this point, each received a personal copy of the instructions, and they read the instructions “very carefully several times.” The references to sentencing were brief and “in passing.” The vast majority of the jury’s time was spent discussing the factors necessary to prove the charges and the evidence. The jury did not discuss sentencing “to reach one verdict or another.” Further, even after the sentencing discussion, the jury continued to discuss manslaughter. In sum, we conclude there was no substantial likelihood of juror bias stemming from the sentencing discussion. Court of Appeal Opinion at 11–19. 28 36 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 2. Analysis a. Governing Law The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. Const. amend. VI; see Irwin v. Dowd, 366 U.S. 717, 722 (1961). The right to trial by jury “necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of crossexamination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 472–73 (1965). “Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury.” Tinsley v. Borg, 895 F.2d 520, 523–24 (9th Cir. 1990) (internal quotation marks omitted). The Constitution “does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, 455 U.S. 209, 217 (1982). “The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Id. Due process therefore means “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Id. Evidence not presented at trial is deemed “extrinsic.” See Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987). A jury’s consideration of extrinsic evidence constitutes trial error, not structural error. Eslaminia v. White, 136 F.3d 1234, 1237 n.1 (9th Cir. 1998). 22 Thus, on habeas review, the court must determine whether the error had a substantial and 23 injurious effect on the verdict. Henry v. Ryan, 720 F.3d 1073, 1085 (9th Cir. 2013). Juror 24 misconduct generally does not warrant a new trial where “the extraneous information the 25 jury considered was not inherently inflammatory, nor had it already been excluded from 26 trial as unduly prejudicial.” Henry, 720 F.3d at 1086. 27 28 b. Merits 37 Goldberg argues that the jury’s sentencing discussion violated his Sixth 1 2 Amendment right to an impartial jury. Pet. at 14–17. Respondent counters that the Court 3 of Appeal’s rejection of Goldberg’s juror misconduct claim was neither contrary to, nor an 4 unreasonable application of, clearly established Supreme Court law. Answer at 22–24. 5 The Court agrees with Respondent. The Court of Appeal’s discussion as to inherent prejudice was thorough and United States District Court Northern District of California 6 7 persuasive. The sentencing exchange between the two jurors was very brief, occurred 8 “part way, possibly midway, or as much as three-quarters through the deliberations but not 9 at the end,” was “just in passing,” and was immediately followed by jurors (including Juror 10 11, one of the two participants) reminding each other “that sentencing is the judge’s 11 responsibility.” Court of Appeal Opinion at 12–13. Moreover, as discussed in Part 12 III.A.2.b.iv., the trial record overwhelmingly established that Goldberg planned, prepared, 13 and intended to kill Smith, and it discredited Goldberg’s self-defense and heat-of-passion 14 defenses, such that the sentencing exchange was not inherently likely to have influenced a 15 juror. 16 The Court of Appeal’s discussion as to whether a juror was actually biased, based 17 on a review of the entire record, was also thorough and persuasive. Goldberg argues that 18 the Court of Appeal did not consider how the sentencing discussion affected the jury and 19 its verdict in this case. See Pet. at 17; Traverse at 4. He correctly states that reviewing 20 courts should not consider “what effect the constitutional error might generally be 21 expected to have on a reasonable jury, but rather[,] what effect it had upon the guilty 22 verdict in the case at hand.” Traverse at 4 (quoting Sullivan v. Louisiana, 508 U.S. 275, 23 279 (1993)). But the Court of Appeal’s review was consistent with Sullivan. The Court of 24 Appeal considered whether there was a substantial likelihood that any one of the jurors in 25 Goldberg’s case was actually biased due to the sentencing exchange, and answered that 26 question in the negative based on the record. See Court of Appeal Opinion at 18 . 27 28 Goldberg had argued that two jurors changed their votes from manslaughter to second degree murder at some point, but one (Juror 10) did not recall that sentencing was 38 1 discussed, and the other was Juror No. 3. Id. The trial court “held a hearing on juror 2 misconduct in which 10 jurors testified, and it determined that the presumption of 3 prejudice arising from juror misconduct was rebutted.” Id. at 5. The trial court found that 4 Juror No. 3 was not credible based on firsthand observations of Juror No. 3’s testimony in 5 that hearing. Id. at 13, 18. That credibility determination is entitled to great deference. 6 See Skilling v. United States, 561 U.S. 358, 396 (2010) (in reviewing juror bias claims, 7 “the deference due to district courts is at its pinnacle”). Goldberg has failed to establish 8 that the “state court’s credibility findings . . . were unreasonable,” see Traverse at 3, or that 9 the Court of Appeal was unreasonable in its deference to the trial court’s credibility 10 United States District Court Northern District of California 11 determination. The Court of Appeal also noted that even Juror No. 3 “suggested that the sentencing 12 discussion was inconsequential: ‘That was just an aside, the whole penalty thing.’ She 13 described it as a ‘comment’ or ‘interjection’ that was not ‘meant to be part of the 14 deliberation because, . . . people were getting coffee and kind of moving around the 15 room.’” Court of Appeal Opinion at 18. It also observed that no other juror was likely 16 actually biased based on the discussion, that the sentencing exchange “was immediately 17 followed by juror admonitions that they should not consider sentencing,” that the trial 18 court instructed the jury on this point, and that the jurors read the instructions “very 19 carefully several times.” Id. at 18–19; see also CSX Transp., Inc. v. Hensley, 556 U.S. 20 838, 841 (2009) (“[J]uries are presumed to follow the court’s instructions.”). This 21 discussion demonstrates that the Court of Appeals was appropriately focused on what 22 effect the sentencing exchange had on the guilty verdict in this case. 23 Although Goldberg urges the Court to consider Juror No. 3’s statements in her 24 declaration concerning her thought processes during deliberations, Pet. at. 14–15, the 25 Court cannot consider those statements. “[C]ourts may not inquire about the subjective 26 impact of [juror] misconduct on the jury.” Henry, 720 F.3d at 1087 (citing Fed. R. Evid. 27 606(b)); see also Fields v. Brown, 503 F.3d 755, 778 (9th Cir. 2007) (“juror testimony 28 about the subjective effect of evidence on the particular juror or about the deliberative 39 United States District Court Northern District of California 1 process may not [be considered].”); Traverse at 3 (“It is true that Federal Rule of Evidence 2 606(b) and California Evidence Code § 1150 make a juror’s testimony about his or her 3 subjective beliefs inadmissible.”). Goldberg’s assertion that the foreperson’s testimony is 4 sufficient to bring Juror No. 3’s subjective thoughts into consideration, see Traverse at 3– 5 4, even if true, but see Fed. R. Evid. 606(b)(1) (“a juror may not testify about . . . the effect 6 of anything on that juror’s or another juror’s vote”), does not persuade the Court that the 7 Court of Appeal unreasonably applied federal law in deferring to the trial court’s 8 credibility determination, or in concluding in light of the entire record that the sentencing 9 exchange did not actually bias any juror. See Skilling, 561 U.S. at 387–87 (“Reviewing 10 courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s 11 impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors 12 impossible to capture fully in the record.”); Hedlund v. Ryan, 815 F.3d 1233, 1248 (9th 13 Cir. 2016), amended and superseded on denial of rehearing en banc by 854 F.3d 557 (9th 14 Cir. 2017) (state court bias findings are presumptively correct). The Court concludes that 15 the sentencing exchange did not have a substantial and injurious effect on the verdict. See 16 Henry, 720 F.3d at 1085. 17 Accordingly, the Court of Appeal’s rejection of Goldberg’s juror misconduct claim 18 was not contrary to, or an unreasonable application of, clearly established Supreme Court 19 precedent. See 28 U.S.C. § 2254(d)(1). The Court of Appeal also did not base its 20 conclusion on an unreasonable determination of the facts. See id. § 2254(d)(2). Rather, 21 the Court of Appeal reasonably concluded that the sentencing exchange that two jurors had 22 briefly during deliberations did not violate Goldberg’s Sixth and Fourteenth Amendment 23 rights to an impartial jury. Goldberg is not entitled to federal habeas relief on the basis of 24 juror misconduct. 25 IV. CONCLUSION For the foregoing reasons, the Court DENIES Goldberg’s habeas petition.9 26 27 28 9 Contrary to petitioner’s suggestion, an evidentiary hearing is not necessary to resolve the claims. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). 40

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