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

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In another apparent attempt to justify the finding that both defendants fired the rifle, respondent states, "At any rate, during (sic) or seconds after Robinson was fatally shot from an unknown distance, while seated in the driver's seat ofher parked car, Fuller was fatally shot in her left upper shoulder and right 'back' area." (RB at p. 118.) However, rather than support the conclusion oftwo shooters, these facts actually prove that there was only one shooter. This conclusion follows from the fact that, as respondent concedes, "during or seconds after" Robinson was shot, Fuller was also shot. IfFuller was shot "during" the time Robinson was shot, it necessarily means there was only one shooter. Even ifFuller was shot "seconds after" Robinson, it would still be far more likely that only one person fired the only weapon, rather than one person shooting Robinson and quickly handing the gun to the second shooter who then must take aim and shoot the second victim. In summary, while it is perhaps not "factually impossible" for there to have been two shooters, it is extremely unlikely that more than one person fired all the shots, and even the facts recited by respondent tend to support the conclusion of one shooter. E. The Difference Between Vicarious and Personal Liability. Another flaw that runs through respondent's analysis of this issue is respondent's failure to understand the difference between there being sufficient evidence to find appellant subject to vicarious liability under the enhancement of section 12022.53, subdivisions (d) and (e) and sufficient evidence that both appellant and Nunez were the actual shooters. Respondent also fails to understand the different legal and moral culpability that attaches when a vicariously liable defendant is mistakenly found personally liable. Briefly, a finding that there is evidence to support appellant's vicarious liability under section 12022.53, subdivisions (d) and (e) only shows that someone fired the rifle, that appellant was a principal, and that appellant violated section 186.22. There may be sufficient evidence ofthese three facts for the jury to render 18
a finding ofliability, but that does not equate to a finding ofpersonal use. Likewise, the actual killer bears more moral opprobrium than one who is only guilty vicariously. As explained in Appellant's Opening Brief, a jury will be more inclined to sentence an actual killer to death, as the jury did in this case. (AOB at pp. 48-52.) Most importantly, in this case Judge Ong relied on the fact that appellant was the actual shooter in imposing the death penalty. (18RT 4596, 18RT 4596-4597.) The jury's imposition of the death penalty and Judge Ong's on-the-record statement establish prejudice from the erroneous finding. Respondent contends that appellants' arguments regarding the Improper wording of the jury form fail if this court determines that the jury received sufficient proofto find that either defendant could have fired the gun, regardless of who actually fired the gun. (RB at p. 110.) Once again, however, respondent fails to understand the nature of appellant's argument. Appellant acknowledges that there was sufficient evidence that "either" defendant fired the gun. For the purpose of imposing the sentence enhancement contained in section 12022.53, subdivision (d), the fact that "either" defendant shot the gun is sufficient. However, a finding that "either" defendant fired the gun is quite different than a finding that both fired the gun. It is the latter finding that creates the problem here because of the increased moral culpability that attaches to appellant if he IS incorrectly perceived to be an actual shooter. Similarly, respondent argues that there is overwhelming evidence to find each defendant liable for the weapon enhancement on the grounds ofthe discharge of the firearm. (RB at pp. 110-111.) However, appellant has never disputed this, and once again respondent has misunderstood the thrust of appellant's argument. Section 12022.53, subdivision (d) allows for the imposition ofthe enhancement on a defendant who personally uses a gun, and subdivision (e)(1) then allows for the enhancement to be imposed on a person even if he did not personally fire the weapon if that person is a principal in the charged crime and that person also violated section 186.22(b)(1), the street gang enhancement. Therefore, as 19
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 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 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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