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

PENALTY PHASE ISSUES
XIV
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
THE JURY THAT IT WAS REQUIRED TO SET ASIDE
ALL PRIOR DISCUSSIONS RELATING TO PENALTY
AND BEGIN PENALTY DELIBERATIONS ANEW WHEN
TWO JURORS WERE REPLACED BY ALTERNATE
JURORS AFTER THE GUILT VERDICT HAD BEEN
REACHED AND THE PENALTY CASE HAD BEEN
SUBMITTED TO THE JURY.
Appellant's Fourteenth Amendment right to due process of law, his Sixth
Amendment right to an impartial jury, and his Eighth Amendment right to a
reliable determination of penalty were violated when the trial court failed to
instruct the jury that it was required to set aside and disregard all prior discussions
relating to penalty and to begin penalty deliberations anew after two jurors were
replaced by alternate jurors.
A. The Doctrine Of Invited Error Is Not Applicable
Respondent contends that appellant has forfeited this issue by reason ofthe
doctrine of invited error. Respondent argues that appellant requested that the jury
be instructed with CALJIC No. 17.51.1 and therefore cannot raise the issue ofthe
propriety ofthat instruction on appeal. (RB at pp. 213-214.)
As previously noted (Ante, at pp. 29-31.), because the trial court is charged
with instructing the jury correctly, in order to be precluded from raising an issue
on appeal by reason of the invited error doctrine it must be clear from the record
that counsel acted for tactical reasons and not out of ignorance or mistake. There
is nothing in this record that would support such a conclusion.
First, it is not clear from the record that the instruction was actually
requested by the defense. Although the instruction sheet in the Clerk's Transcripts
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