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

egarding the intent ofthe non-shooter was ambiguous. Furthermore, ifthe crime
was the result of a rash, spur-of-the-moment act by the shooter, whose identity the
prosecutor admitted he had not proven, the issue of guilt of the non-shooter was
far from overwhelming. Thus, it is important that the jury be told that merely
being in the presence ofthe shooter was not a sufficient basis for a finding ofguilt.
This is particularly true in gang cases, such as this case, where the action of one
gang member is likely to be attributed to his fellow gang member. The other
evidence of guilt was not "overwhelming. As previously explained (AOB, at pp.
39-40), the prosecution's two main witnesses, Contreras and Vasquez, both had
credibility problems which may have given the jury pause in reaching its decision.
Respondent also contends that because there was "overwhelming proof'
that appellant was the shooter, he was not prejudiced. (RB 199-200.) This
contention is utterly without merit. As noted previously (ante, at p. 7-9), the
evidence was at best ambiguous as to which defendant fired the shot, and the
prosecutor admitted he had not proven who fired the shots. As previously
explained, (ante, at pp. 7-9), a party is not allowed to present one theory at trial
and another on appeal. Because the People at trial argued that they had not proven
who the shooter was, respondent is estopped from now arguing that the evidence
"overwhelmingly" proved appellant was the shooter.
Because respondent argued that the constitutional aspects ofthis claim have
been waived, respondent only addressed the question of prejudice under the
standard of People v. Watson (1956) 46 Ca1.2d 818, 836, holding that an error is
reversible only if it is reasonably probable that the defendant would have obtained
a better result in absence ofthe error. (RB at pp. 129-131.)
However, because this error adversely impacted appellant's constitutional
rights, the error must be evaluated under the standard of Chapman v. California,
supra, 386 U.S. 18. As discussed in Appellant's Opening Brief (AOB at pp 176­
177) it cannot be shown that the error was harmless beyond a reasonable doubt.
Therefore, the conviction entered below must be reversed.
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