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

c. Respondent Fails To Understand The Origins Of The Error.
In addition to failing to understand nature of the error, respondent has
misunderstood how the error occurred. This latter failure is evident from the fact
that respondent at no point discusses whether the forms were inaccurately phrased
in such a manner that would cause the jury to make a fmding of "personal use"
even though the jurors did not really know which defendant actually fired the gun.
Penal Code section 12022.53, subdivision (d) allows for the imposition of a
sentence enhancement on a defendant who personally uses a gun. Subdivision
(e)(l) ofthat section allows for the enhancement to also be imposed vicariously on
one who is a principal in the crime ifthat person also violated section 186.22(b)(I)
by participating in activity for the benefit of a criminal street gang. Thus, if a
defendant violates section 186.22, that defendant is vicariously liable for the
12022.53(d) enhancement if another principal uses a firearm regardless of the
defendant's personal use of the weapon. Therefore, under the 186.22 scenario, a
jury can find that one of two defendants personally fired a weapon, and that the
other defendant is vicariously liable for the first defendant's act.
At trial, the prosecution relied solely on this theory of vicarious liability as
to the weapon enhancement because it was not proven who personally used the
weapon. Indeed, the prosecutor did not argue that both defendants fired the
weapon and even conceded that he did not prove appellant fired the weapon,
stating that he did not have to prove appellant fired the weapon for the
enhancement to be found true. The prosecutor told the jury that because of the
gang allegation the jurors should not be "thrown off' by the word "personal."
(14RT 3214, 14RT 3222-3223.)
In short, the argument of the prosecutor was that the jury did not have to
find that a particular defendant personally used the rifle for the enhancement to
apply to both defendants. The prosecutor argued that because the enhancement
would attach vicariously regardless of which defendant had actually fired the
weapon, the allegation had been proven, and the jury should mark the appropriate
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