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

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GUILT AND PENALTY PHASE VERDICTS WERE RENDERED
AGAINST APPELLANT BY A JURY OF FEWER THAN TWELVE
SWORN JURORS, AND THE RESULTING STRUCTURAL TRIAL
DEFECT REQUIRES REVERSAL
Appellant contended in the opening brief that the trial court's failure to
swear all ofthe jurors (specifically Jurors 4965, 8971, 2211) as required by Code
of Civil Procedure section 232, subdivision (b), resulted in a structural trial defect
requiring reversal ofguilt and penalty phase verdicts. (AOB at pp. 209-226.)
Respondent contends (1) appellant's constitutional claims were not
preserved by objection or other action below; (2) Jurors 4965, 8971, 2211 took an
adequate "trial juror" oath; and (3) appellant was not prejudiced by the omission.
(RB at p. 79-90.) Respondent is wrong on all counts.
A. Appellant's Claims Are Cognizable On Appeal
Respondent first claims that appellant's constitutional claims are
procedurally barred. (RB at pp. 84-85.)
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,
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 ofthis issue.
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