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

confuse[d]" (Harris) is no more than an attempt to evaluate how the jury might be
affected by the evidence or instruction in issue.
In referencing People v. Leonard (2007) 40 Ca1.4th 1370, respondent
suggests that appellant is contending that the newly constituted jury was required
to deliberate for the same length oftime as the original jury. (RB at p. 219.) After
arguing that the new jury need not deliberate the identical time that the former jury
deliberated, respondent begins to list the complexity ofthe issues facing the newly
constituted jury, including victim impact evidence, other misconduct by Nunez,
and other evidence. (RB at pp. 223-224, 227.) Respondent then recites lengthy
sections of the instructions given to the newly constituted jury, and rehashes the
events leading up to the substitution. (RB at pp. 224-226.) Respondent then
concludes that "50 minutes was adequate time for the jury to deliberate anew and
reach a verdict." (RB at p. 230.)
In reality, respondent has created a straw man. Appellant did not suggest
that the newly constituted jury had to spend the same amount of time in
deliberations. However, while appellant does not suggest any set time, a review of
how quickly the newly constituted jury reached its decisions does shed light on to
whether it is likely that the jurors started their task from the beginning.
As detailed in Appellant's Opening Brief (AOB at pp. 243-24), in order to
reach penalty verdicts, after the last alternate juror was seated, the jury had to
review the penalty phase testimony of 16 witnesses, including testimony from two
experts witnesses concerning the psychological and social backgrounds of the
defendant and victim impact of evidence. The jury had to decide whether co­
appellant Nunez had committed two crimes as possible factors in aggravation.
The jury may also have had to consider issues from the guilt trial that may have
had an impact in the penalty phase, such as the presence of any possible lingering
doubt. It was necessary to review this evidence, and reach a life versus death
decision for two defendants. Under respondent's theory-which is at least as
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