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

speculative as appellant's-- all ofthese deliberations and decisions occurred within
the course offifty minutes. (38CT 10941-10944, 18RT 4497-4403.)
Thus, respondent's argument, based on People v. Ledesma (2006) 39
Cal.4th 641, that "[d]efendant provides no reason for us to doubt that the jury in
this case was able to follow the court's instructions" has no application here
because there is strong evidence that the jury could not have resolved all of these
issues in fifty minutes. Furthermore, Ledesma is distinguishable because it
addressed completely different issues. In Ledesma the jury was informed it had to
start deliberations anew after one of its members was replaced. The issue in
Ledesma was whether the entire panel had to be discharged during the penalty
phase after the court found misconduct on the part of one juror requiring his
removal. Thus, in Ledesma the misconduct ofthe one juror was not related to the
ability of the rest of the jury to deliberate fairly and fully. In contrast, here the
incorrect instruction was given to the entire newly constituted jury. The language
from Ledesma quoted by respondent referred to the fact that the defendant had
suggested no reason why the rest of the jury had to be discharged, as the
misconduct was only related to one juror. It is not relevant here.
Appellant has shown two reasons why the error should be regarded as
prejudicial. First, the error in instruction in this case was directed to the entire
jury. Second, the extremely brief period that the new jury deliberated in relation
to the numerous questions that it had to resolve is a very strong indication that the
specific error - the failure to tell the jury to begin deliberation anew - created a
situation where the jury did not in fact begin deliberations from the start.
Respondent refers to the instructions given relating to lingering doubt, the
"mercy instruction," and a "sympathy instruction," all given at the request of
appellants, as noted by respondent. Respondent notes that the Alternate Jurors 2
and 4 were present when these instructions were given. Therefore, respondent
contends the juror were instructed within the meaning ofPeople v. Cain (1995) 10
Cal.4th 1. (RB at pp. 220-221.)
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