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

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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 116
for CALJIC No. 17.51.1 has an "X" in the box "Requested by Defendant" (38CT 11119), when one examines the record, it does not appear that appellant, in fact, requested that instruction as a tactical matter. This is apparent from a review of the proceedings when instructions were discussed at trial. When the instructions requested by the defense were discussed, there was no mention of either CALJIC No. 17.51.1 or 17.51. Rather, the only two instructions discussed were those requested by appellant relating to sympathy. It was expressly stated on the record that appellant was not requesting any other instructions. (17RT 4219-4221.) Nor was there any mention of these instructions when the court and parties discussed the instructions requested by Nunez. (l7RT 4221-4224.) Thus, the record is at best ambiguous with respect to whether this instruction was actually requested by the defense. Secondly, the record does not even begin to suggest that the defense would have had any tactical reason for requesting this instruction. After discussing the instructions requested by both defendants, the court asked ifthere were any more defense requests, and hearing none, the court mentioned "substitution of juror during death penalty phase," referring to this instruction as "7.51," and stating that the court would read that instruction if needed. (l7RT 4224.) This further suggests that the instruction was not requested by the defense but rather by the court. Moreover, at that point, long before there was any indication that some jurors would have to be replaced, the instructions that were to be given in the event of that possible contingency occurring were not matters that would be of great concern to either the court or parties. Therefore, it is even less likely that the instruction given was given as a result ofa defense tactical decision. From the foregoing, it is not clear that appellant requested this instruction or that the request was made as a tactical matter, and therefore the error of invited error is not applicable. 117
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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
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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
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Appellant has explained above and i
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Cal.App.3d 970, 992.) Instead, resp
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3. Appellant's Did Not Forfeit His
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In Argument V of the Opening Brief,
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IV IN FAILING TO REDACT PORTIONS OF
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People v. Barraza (1979) 23 Ca1.3d
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have been unreasonable for the jury
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shot Fuller and Robinson, and that
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find 'intent to kill'" on the basis
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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 and 110: ut is only being allowed for use ag
Page 111 and 112: x THE TRIAL COURT ERRED IN PERMITTI
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 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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Appellant, William Satele, Reply Brief - California Courts - State of ...

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