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

overwhelmingly showed that only one was the actual shooter.
Secondly, even assuming arguendo, there was "powerful proof' that each
defendant fired the rifle, this would still be inconsistent with Mr. Millington's
penalty phase argument that only appellant fired the shots. Indeed, there may be
powerful proof that one fired the shots, but as discussed above, there is no
powerful proof that both defendants fired the shots. In fact, as admitted by the
prosecutor at trial, he had not proven which defendant fired the shots.
Third, if the prosecutor did not prove which of the defendants fired the
shots, a fact that the prosecutor freely admitted at the guilt phase, then the
prosecutor's penalty phase argument that appellant was the shooter improperly
increased appellant's moral culpability at the stage where that moral culpability
has the most impact - i.e., at the time the jury determined what penalty to impose.
A prosecutor's first obligation is to serve truth. (United States v. Leung
(C.D.Cal. 2005) 351 F.Supp.2d 992, 997; People v. Garcia (1993) 17 Cal.AppAth
1169, 1181.) The evil in allowing the pursuit of two inconsistent and
irreconcilable theories at different times is that one theory must necessarily be
false. "Because inconsistent theories render convictions unreliable, they constitute
a violation ofthe due process rights ofany defendant in whose trial they are used."
(Stumpf v. Mitchell (6th Cir. 2004) 367 F.3d 594, 613.) Furthermore, a
prosecutor's assertion of inconsistent theories tends to undermine society's
confidence in the fairness of the process. (People v. Watts (1999) 76 Cal.AppAth
1250, 1262; Thompson v. Calderon (9th Cir. 1996) 109 F.3d 1358, 1371.)
In the case ofIn re Sakarias, supra, 35 Ca1.4th 140 this court explained that
when ''the available evidence points clearly to the truth of one theory and the
falsity ofthe other, only the defendant against whom the false theory was used can
show constitutionally significant prejudice." (Id. at p. 156.) As noted, because
both defendants made admissions which can equally be interpreted as admitting
they were each the actual shooter, and because there was no additional evidence
showing that appellant was, in fact, the shooter, the evidence does not clearly point
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