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

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form finding "personal use" to have been found ''true.'' Under the prosecutor's theory, all that was needed for the section 12022.53, subdivisions (d) and (e) enhancement to apply was a verdict form permitting the jury to impose liability if it found that "a" defendant fired the weapon. However, instead of a form asking whether "a" defendant personally used the weapon, one form asked the jury if it found that appellant personally used the weapon, and another form asked the jury if it found that Nunez personally used the weapon. The jury marked the spaces indicating that each defendant personally used the weapon. Thus, the question becomes whether the jury's act in checking the "true" spaces in the respective verdict forms means they intended to find actual personal use by both defendants, or whether they instead thought this was what they were supposed to do if they believed that one of the two defendants had used the weapon, under the instructions given to them, the arguments made, and the verdict form provided. One argument made by the prosecutor at trial sheds particular light on this question. In the reply to Nunez's motion for a new trial, the prosecutor explained, "Defense counsel correctly states that there was no evidence [Nunez] was the shooter" and "I conceded this fact throughout the trial." (39CT 11190, quoted in RB at p. 106, italics added.) If, as the prosecution conceded, there was no evidence that Nunez was the shooter, it necessarily follows that when the jury marked the space making this "finding" of personal use it was doing so not because it believed that it had been proven that Nunez actually fired any of the shots, but rather because this was the only option it had under the vicarious liability instructions and arguments presented and the verdict form before it. With respect to firearm use, appellant is in the same position as Nunez. As will be explained below, the evidence as to the identity of actual shooter was virtually the same as to both appellant and Nunez, and the prosecutor also 6
conceded as to appellant he had not proven who the shooter was. (l4RT 3210 3211.) Therefore, it is clear that the jury found the personal use allegation to be true not because they believed appellant fIred the shot, but because this was the only option presented to them. A recap of the evidence and an examination of respondent's analysis ofthat evidence will further demonstrate that this conclusion is the only logical one. D. The Evidence Overwhelmingly Establishes The Fact That Only One Person Fired The Gun. The People now argue that it was not "factually impossible" for both defendants to have been the actual shooters. (RB at p. 114.) There are three problems with this contention: 1) because the theory that both defendants were actual shooters was not a theory that the prosecutor presented or relied on when the issue was to be resolved, respondent is introducing a new theory of the crime on appeal and should be barred from doing so; 2) from the evidence introduced at trial, it is highly improbable that more than one defendant fIred the weapon; 3) the distinction between "factually impossible" and "highly improbable" is legally meaningless and "not factually impossible" is not a proper standard under the Eighth Amendment guarantee ofheightened reliability in death penalty cases. 1. Respondent Should Be Estopped From Presenting The Argument That Both Appellant And Nunez Were The Actual Shooters Respondent's contention that both defendants actually fIred the rifle violates an established rule of appellate procedure that requires when the parties have proceeded on one theory in the trial court, neither party "can change this theory for purposes ofreview on appea1." (Jones v. Dutra Construction Co. (1997) 7
Page 2 and 3: TABLE OF CONTENTS APPELLANT WILLIAM
Page 4 and 5: 2. The Pleadings Failed To NotifY A
Page 6 and 7: VI THE JURy FAILED TO FIND THE DEGR
Page 8 and 9: C. Standard OfReview And Prejudice
Page 10 and 11: XIII APPELLANT JOINS IN ALL ISSUES
Page 12 and 13: Mitchell v. Esparza (2003) 540 U.S.
Page 14 and 15: People v. Cruz (2001) 93 Cal.App.4t
Page 16 and 17: People v. Scott (1978) 21 Cal. 3d 2
Page 18 and 19: CALlIC No. 8.31 passim CALJIC No. 8
Page 20 and 21: ARGUMENTS GUILT PHASE ISSUES I THE
Page 22 and 23: the facts indicate that only one de
Page 26 and 27: 57 Cal.AppAth 871, 877; 9 Witkin, C
Page 28 and 29: the weapon. Without again recountin
Page 30 and 31: Respondent notes that between the m
Page 32 and 33: In another apparent attempt to just
Page 34 and 35: appellant has repeatedly said, the
Page 37 and 38: not present them to the trial court
Page 39 and 40: In People v. Knighten (1980) 105 Ca
Page 41 and 42: Finally, it must be noted that the
Page 43 and 44: B. The Constitutional Issues Are No
Page 45 and 46: turn relied on the language from Wi
Page 47 and 48: Indeed, in this case the instructio
Page 49 and 50: as the prosecution's first-degree t
Page 51 and 52: F. Conclusion In summary, by failin
Page 53 and 54: As appellant explained in the openi
Page 55 and 56: in the manner suggested by responde
Page 57 and 58: Furthennore, it is well established
Page 59 and 60: Appellant has explained above and i
Page 61 and 62: Cal.App.3d 970, 992.) Instead, resp
Page 63 and 64: 3. Appellant's Did Not Forfeit His
Page 65 and 66: In Argument V of the Opening Brief,
Page 67 and 68: IV IN FAILING TO REDACT PORTIONS OF
Page 69 and 70: People v. Barraza (1979) 23 Ca1.3d
Page 71 and 72: have been unreasonable for the jury
Page 73 and 74: shot Fuller and Robinson, and that
Page 75 and 76:
find 'intent to kill'" on the basis
Page 77 and 78:
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 130 and 131:
PENALTY PHASE ISSUES XIV THE TRIAL
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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