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

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appellant has repeatedly said, the defendants could each be liable for that act even though only one personally committed the act giving rise to the liability. But the question presented by this issue is not whether there is overwhelming evidence to find they can both be held liable under the weapons enhancement, as respondent argues, but rather whether there was a proper finding of actual, personal use on the part ofboth defendants. Respondent refers to the testimony of Contreras that both defendants were hard core gang members who kill people. (RB at p. 111.) However, even assuming Contreras's improper opinion testimony on this point were true, it is irrelevant to the question here. While Contreras's opinion may be some evidence that both defendants are the type of people who might commit murder, it is not relevant to prove which of the two fired the actual shots on this particular occasion, which is the issue involved herein. Respondent again discusses cases holding that a JUry need not reach unanimous agreement as to the legal theory of the case. (RB pp. 111-113.) As explained above, respondent again misunderstands appellant's argument. The error does not stem from the fact that the jury was not unanimous in legal theory. Rather, the jury reached two separate factual conclusions that are in conflict with each other and contrary to the evidence introduced, namely that both appellants actually fired the single rifle used. In short, without agreeing on which legal theory liability was predicated, the jury could convict appellant ofmurder. The jury could also impose the firearm enhancement on both defendants without deciding which one actually fired the weapon. However, once the jury settled upon one factual theory - Le., that Nunez was the actual killer-- it could not agree on a second factual theory that was in conflict with the first factual theory - Le., that appellant was the actual shooter. Reversal is required. 20
F. Appellants Have Not Forfeited The Constitutional Aspects OfThis Issue. Respondent contends that appellant forfeited the Fifth and Eighth Amendment aspects of this claim because of his failure to argue these aspects of the issue below. (RB at p. 105.) This court should reject the contention that these claims are waived for several reasons. Respondent relies on People v. Lewis (2008) 43 Cal.4th 415, 490 fn. 19, People v. Wilson (2008) 43 Cal.4th 1, 13-14 fn.3, People v. Thornton (2007) 41 Cal.4th 391, 462-463, and; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008 fn. 8.) However, these cases do not support respondent's position that appellant's claims are forfeited. In these cases, as appellant will explain more fully below, this court has considered and ruled upon a defendant's federal claims when the facts are undisputed and the legal analysis is similar to the analysis in which the court must engage in any case (People v. Lewis; People v. Wilson, infra) and when the appellate claim is of the kind that requires no trial court action to preserve it. (People v. Wilson; People v. Boyer (2006) 38 Cal.4th 412, 441 fn. 17, infra. ) This court has also considered and ruled upon a defendant's federal claim when the question as to whether the defendant has preserved his claim by trial court action is close and difficult because of ambiguity in the law (People v. Lewis, infra). And, in People v. Thornton, infra, this court considered and ruled upon the merits of a defendant's claim even after determining the claims have been forfeited. Thus, in People v. Lewis, the Attorney General claimed that a defendant's state constitutional challenge against the seating of a prospective juror had been waived by a failure to object at trial. This court ruled the claim was not forfeited because the defendant's state constitutional claim was based on the same facts underlying the federal claim and required a legal analysis similar to that required by the federal claim. (People v. Lewis, supra, 43 Cal.4th at p. 490 fn. 19; citing People v. Williams (1997) 16 Cal.4th 635, 666-667 (federal Due Process Clause requires sentencing jury to be impartial to same extent that Sixth Amendment 21
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 32 and 33: In another apparent attempt to just
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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