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

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prejudicing Nunez's defense by pinpointing to the jury proof of Nunez's consciousness of guilt." (RB at pp. 207-208.) However, it is cold comfort to appellant that the court permitted its concern that Nunez might be prejudiced to prejudice appellant instead. What respondent and the trial court fail to realize is that this evidence was admissible only because it related to Nunez's consciousness of guilt. There is nothing wrong with pinpointing evidence to its proper use. The trial court must either neutralize potential prejudice to appellant that arises because ofthe joint trial or it must grant separate trials. Ironically, had Nunez been tried alone, the jury would have been instructed with these pinpoint instructions and they would have only applied to Nunez. By consolidating the trial, Nunez received a benefit in that the form of the pinpoint instruction which should have been applicable only to him was diluted, while appellant received a detriment in the form of an instruction that permitted the jury to use against him evidence that should not have applied to him at all. As explained in Appellant's Opening Brief (AOB at pp. 186-187), the danger of jury confusion in this case arises from the inherent dangers in conspiracy cases that the acts of one defendant may be attributed to the other. This is even more so in gang cases where gang members are claimed to be acting for the benefit ofthe gang, and the lines of individual responsibility are so blurred as to create the danger that innocent or less culpable defendants will be found guilty simply because oftheir association with others. In summary, the evidence giving rise to CALJIC Nos. 2.04 and 2.05 only related to Nunez. Therefore, the jury should have been informed of the fact that they could only consider that evidence as to Nunez, and the failure to so inform the jury greatly prejudiced appellant. Reversal is required. 96
x THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTORTO PRESENT REBUTTAL EVIDENCE THAT APPELLANT ALLEGEDLY STRUCK ANOTHER INMATE WHILE IN COUNTY JAIL. The trial court abused its discretion in allowing the prosecutor to present rebuttal evidence that appellant struck another inmate in county jail. This evidence was admitted in violation of Evidence Code section 352 and also constituted improper rebuttal evidence. Because of its highly prejudicial nature, the error compels reversal ofthe judgment. A. The Constitutional Aspects OfThis Issue Are Not Waived. Respondent claims the constitutional aspects of this Issue are forfeited because these claims were not raised at trial. (RB at p. 197.) Under the principles discussed more fully above (ante, at pp. 21-27), this issue is not waived. These principles include the fact that an appellate court has inherent power to review an issue in spite of a party's failure to perfectly phrase that issue; the fact that there is an exception to the waiver rule regarding issues relating to the deprivation of fundamental, constitutional rights; and the fact that there is an exception to the waiver rule that provides that an objection may be excused when the issue involved is a pure question of law. Finally, because, as noted above, whether the waiver rule is to be applied is largely a question of the appellate court's discretion, this court should address the constitutional aspects of this issue. B. Respondent's Arguments Are Misplaced Respondent completely fails to address the core of appellant's argument, i.e., the fact that there was no evidence from which it could be inferred that appellant's alleged assault on another inmate was motivated by racial animosity. 97
Page 2 and 3:
TABLE OF CONTENTS APPELLANT WILLIAM
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2. The Pleadings Failed To NotifY A
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VI THE JURy FAILED TO FIND THE DEGR
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C. Standard OfReview And Prejudice
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XIII APPELLANT JOINS IN ALL ISSUES
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Mitchell v. Esparza (2003) 540 U.S.
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People v. Cruz (2001) 93 Cal.App.4t
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People v. Scott (1978) 21 Cal. 3d 2
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CALlIC No. 8.31 passim CALJIC No. 8
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ARGUMENTS GUILT PHASE ISSUES I THE
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the facts indicate that only one de
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form finding "personal use" to have
Page 26 and 27:
57 Cal.AppAth 871, 877; 9 Witkin, C
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the weapon. Without again recountin
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Respondent notes that between the m
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In another apparent attempt to just
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appellant has repeatedly said, the
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not present them to the trial court
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In People v. Knighten (1980) 105 Ca
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Finally, it must be noted that the
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B. The Constitutional Issues Are No
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turn relied on the language from Wi
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Indeed, in this case the instructio
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as the prosecution's first-degree t
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F. Conclusion In summary, by failin
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As appellant explained in the openi
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in the manner suggested by responde
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Furthennore, it is well established
Page 59 and 60: Appellant has explained above and i
Page 61 and 62: Cal.App.3d 970, 992.) Instead, resp
Page 63 and 64: 3. Appellant's Did Not Forfeit His
Page 65 and 66: In Argument V of the Opening Brief,
Page 67 and 68: IV IN FAILING TO REDACT PORTIONS OF
Page 69 and 70: People v. Barraza (1979) 23 Ca1.3d
Page 71 and 72: have been unreasonable for the jury
Page 73 and 74: shot Fuller and Robinson, and that
Page 75 and 76: find 'intent to kill'" on the basis
Page 77 and 78: THE COURT'S ERRONEOUS INSTRUCTION A
Page 79 and 80: Robinson's wounds indicated the sho
Page 81 and 82: caused great bodily injury or death
Page 83 and 84: use enhancement, the statutory lang
Page 85 and 86: 192-193), but fails to explain how
Page 87 and 88: Then we have the words "personal us
Page 89 and 90: trial and had therefore forfeited t
Page 91 and 92: merits of appellant's claim. (AOB a
Page 93 and 94: jury trial. (People v. Gottman (197
Page 95 and 96: Respondent argues that another theo
Page 97 and 98: needs to rely on the penalty verdic
Page 99 and 100: may not cross-examine a witness upo
Page 101 and 102: itself to appellant would be improp
Page 103 and 104: B. The Court Erred In Refusing The
Page 105 and 106: egarding the intent ofthe non-shoot
Page 107 and 108: B. Respondent's Arguments Are Mispl
Page 109: ut is only being allowed for use ag
Page 113 and 114: XI THE PROSECUTOR'S MISCONDUCT IN A
Page 115 and 116: "guarantee." Appellant is not proce
Page 117 and 118: v. Berryman (1993) 6 Ca1.4th 1048,
Page 119 and 120: Contreras. Viewed in this context,
Page 122 and 123: overwhelmingly showed that only one
Page 124 and 125: XII GUILT AND PENALTY PHASE VERDICT
Page 126 and 127: Where Juror No. 2211 is concerned,
Page 128 and 129: The jury in Cruz was given a versio
Page 130 and 131: PENALTY PHASE ISSUES XIV THE TRIAL
Page 132 and 133: B. The Flaw In Respondent's Content
Page 134 and 135: participation ofall jurors. Contrar
Page 136 and 137: confuse[d]" (Harris) is no more tha
Page 138: It is submitted that these instruct
Page 141 and 142: inherent power to review an issue i
Page 143 and 144: prospective jurors who were found t
Page 145 and 146: (Id at p. 821.) This court has char
Page 147 and 148: church. (18RT 4448:4-6,4451:11-14.)
Page 149 and 150: (18RT 4450:12-14) or her mother (18
Page 151 and 152: had in fact reached an impasse at t
Page 153 and 154: There is an impasse. It is hung. Bu
Page 155 and 156: establishes, for example, that, whe
Page 157 and 158: and Code of Civil Procedure 233, wh
Page 159 and 160: a demonstrable reality. The court a
Page 161 and 162:
CERTIFICATE OF WORD COUNT Rule 8.63
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