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

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57 Cal.AppAth 871, 877; 9 Witkin, California Procedure (4th ed. 1997), Appeal, § 399,451-452.) In his argument to the jury at the guilt/innocence phase, after discussing principles relating to aiding and abetting, the prosecutor argued that both defendants were guilty, and that it did not matter who the actual shooter was. The prosecutor acknowledged, "I will be the first to tell you that I did not prove to you who the actual shooter was." (14RT 3210-3211.) Later, he reiterated this statement, saying" ... again, I'm the first to tell you I didn't prove who the actual shooter was, if you don't know who the actual shooter was - that jury instruction says the person that aided and abetted, you must also find they intended to kill . So, although I didn't show who the actual shooter was, all three intended to kill while they were in that car...." (14RT 3214.) In short, at the guilt/innocence stage the prosecutor did not rely on the theory that both defendants had fired the shots, or that he had proven who actually fired the shots. The theory that appellant was the actual shooter was never presented to the jury as a matter of a tactical choice of the Deputy District Attorney. Therefore, the jury did not have to decide whether appellant was the shooter. Indeed, even respondent's current arguments regarding the speed with which the bullets were fired is a departure from the prosecution's position at trial. Although respondent now argues it is speculation to conclude that the bullets were fired in a briefperiod oftime (RB at p. 116), at trial the prosecutor argued that the four bullet wounds "could [have] happen[ed] in less than a second." (14RT 3240.) The rule that a party may not change theories on appeal is so well established that as long ago as 1933 this court referred to it as "well-settled." Thus, in the venerable case of Ernst v. Searle (1933) 218 Cal. 233 this court stated: 8
"The rule is well-settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court. But manifestly unjust ot the opposing litigant. [Citation.] (Id. at p. 241.) Allowing the prosecution to switch theories at this time would also create due process concerns because it would hamper appellant's ability to present a defense, which is an essential aspect ofthe right to due process of law. (People v. Burrell-Hart (1987) 192 Cal.App.3d 593,599; Davis v. Alaslw (1974) 415 U.S. 308, 317; People v. Reeder (1978) 82 Cal.App.3d 543, 552.) In this case, appellant is hamstrung in his ability to present a defense because at trial he did not have to prove that he was not the shooter, because the prosecution was not trying to prove that he acted in that capacity. Had he known that his personal use of the fIrearm would bear additional consequences - such as the trial court relying on personal use in imposing the death penalty - he could have attempted to defend against that charge. This would likely be a signifIcant factor in his decision as to whether or not he would testify at trial. However, at that time there was no need to present such a defense because the prosecution was not arguing he so personally used the weapon. Now that it is too late to defend against the charge, respondent argues it was proven appellant was the actual shooter, and he is forced to argue he did not personally use the weapon. As a result, respondent should be estopped from arguing on appeal that the prosecution's case, as accept by the jury as true, was based on the theory that appellant personally used the weapon that fIred the fatal shots. 2. It Is Highly Improbable That More Than One Defendant Fired The Weapon As explained in Appellant's Opening Brief any impartial review of the evidence compels the conclusion that only one of the defendants personally fIred 9
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 24 and 25: form finding "personal use" to have
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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