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

"guarantee."
Appellant is not procedurally barred from raising his state and federal
claims. In People v. Lewis and Oliver, supra, 39 Ca1.4th 970, this court reasoned
that in circumstances where the question whether the defendants had preserved
their right to raise the issue on appeal was close and difficult, the Court would
assume the defendants had preserved that right. (People v. Lewis and Oliver,
supra, 39 Ca1.4th at p. 1007 fn. 8.) In Lewis and Oliver, the question of proper
preservation of the issue was a legal one. In appellant's case, the question arises
from a factual ambiguity, but this court has applied the same principle in assuming
defendants have preserved the issue where the facts are in conflict. (People v.
Champion (1995) 9 Ca1.4th 879, 908 (question as to whether defendant abandoned
his motion); People v. Fudge (1994) 7 Ca1.4th 1075, 1106-1107 (question as to
whether defendant timely moved for continuance).)
For these reasons, appellant is not procedurally barred from raising his state
and federal claims on the basis ofthe court's ruling here.
Respondent further contends that appellant's failure to seek a correcting
admonition bars his claim. (RB at p. 134.) In this case, however, the trial court's
chilling reaction to trial counsel's first vouching objection made it apparent that a
request for an admonition would have been futile. The court said: "Your
objection is improper argument. Please make a legal basis. [t! Sustained. Carry
on." The trial court's admonition to counsel made it unlikely that the court was
inclined to grant a request for an admonition and explains why counsel did not ask
for an admonition in connection with his objection during rebuttal argument. "To
preserve for appeal a claim ofprosecutorial misconduct, the defense must make a
timely objection at trial and request an admonition; otherwise the point is
reviewable only if an admonition would not have cured the hann caused by the
misconduct." (People v. Earp (1999) 20 Ca1.4th 826, 858.) Under the
circumstances present here, the request for an admonition would not have cured
the hann and the claim is not procedurally barred.
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