Appellant, William Satele, Reply Brief - California Courts - State of ...

that matter, but as a demonstration ofa contradiction in Kelly's testimony as a means
of questioning Kelly's credibility. If the prosecutor was actually either wrong or
disingenuous in his explanation to the jury about the use of this evidence, clearly
there would be a danger ofconfusion to a lay jury which might similarly misuse this
evidence of wrongful conduct of appellant's fellow gang member as evidence of
appellant's guilt.
Finally, respondent argues there was no prejudice in admitting this evidence.
Respondent makes several arguments in support of this contention (RB at pp. 127­
128), all of which are unavailing. None of the reasons suggested by respondent
dispel the likelihood ofprejudice discussed in Appellant's Opening Brief. (AOB at
pp. 161-163.)
For example, respondent argues that the evidence was not "unduly
prejudicial" because Kelly was not on trial. (RB at p. 127.) To the contrary, the fact
that Kelly was not on trial increases rather than diminishes the likelihood ofpotential
prejudice and confusion. The only people against whom the evidence could be used
were appellant and Nunez. The prejudice does not accrue to the witness, but to the
defendant on trial.
Similarly, respondent contends the evidence was not unduly prejudicial
because in Phillips' alleged quotation of Kelly asking Battle to say that '''we' get
along," the meaning ofthe word "we" was never defmed and Kelly admitted he was
a member ofthe same gang as appellant. (RB at p. 127.) Again, these are facts that
increase the danger of prejudice. With the term "we" undefined and the jury
knowing that Kelly was in the same gang as appellant, the danger is increased that
this attempted bribe would be attributed to appellant and/or Nunez. As explained in
Appellant's Opening Brief(AGB at p. 157), evidence ofefforts by a third person to
fabricate evidence are admissible against the defendant only if done in the
defendant's presence and/or the defendant authorized the conduct of such a third
person. Because these elements were never shown below, attributing the bribe
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