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

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"The doctrine ofinvited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. However, because the trial court is charged with instructing the jury correctly, it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights ofthe accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. (Id. at p. 330, italics added, overruled on other grounds in People v. Barton (1995) 12 Ca1.4th 186,200.) An example of invited error may be found in People v. Gallego (1990) 52 Ca1.3d 115, where the defendant requested that the court modify CALJIC No. 8.84.1 to inform the jury it could consider in sentencing "[w]hether or not execution as contrasted with life without possibility ofparole will deter future acts of murder." After the court granted his request and gave the instruction, the defendant attempted to complain about the instruction upon his conviction. This court explained that the claim was precluded by the invited error doctrine because the defendant, through counsel, made a tactical decision to present expert evidence on deterrence, and also to request the instruction. As explained by Witkin: Although the sua sponte duty to instruct on lesser included offenses exists even when the defendant objects to the instruction (supra, §611), the doctrine of invited error precludes the defendant from complaining on appeal of the court's failure to give the instruction if it clearly appears on the record that the defendant objected for tactical reasons and not out ofignorance or mistake. (5 Witkin, Cal. Crim. Law 3d (2000) Crim Trial, § 612, p. 873.) Indeed, even the cases relied on by respondent demonstrate that this case does not fall within the scope of invited error. For example, respondent quotes this court's decision in People v. Bunyard (1988) 45 Ca1.3d 1189, 1234, which in 30
turn relied on the language from Wickersham, as set forth above, explaining that invited error is designed to prevent an accused from gaining a reversal because of an error made at his behest, where the defense counsel intentionally caused the trial court to err. As explained in Appellant's Opening Brief and Respondent's Brief (AOB 64, RB 150, (13RT 3071, 11. 11-28), after the prosecutor argued that CALJIC No. 8.31 was not applicable, the court asked if the defense agreed. Counsel for appellant answered that he had his own requests, and the court stated it would address them later. Counsel for Nunez said he thought they had instructions for second degree murder included. The court then stated that second degree murder instruction was included in the other instructions. (13RT 3071.) As a result, in this case, although respondent labels this exchange as the defense "tactically" agreeing that CALJIC No. 8.31 was not a proper instruction, there is no evidence that appellant asked the court not to give an instruction for second degree murder based on implied malice. Rather, it appears to be an issue that was overlooked when instructions were discussed. Because there is no reason to conclude that defense counsel requested the instruction not be given, or that the omission of the instruction was a tactical decision on the part of appellant's counsel, the doctrine ofinvited error is not applicable. D. Substantial Evidence Supports The Need For CALJIC No. 8.31. Respondent agrees with the proposition that a trial court has a sua sponte duty to instruct on general principles of law that are closely and openly connected with the evidence when there is "substantial" evidence supporting the instruction. (RB at p.148.) However, respondent contends that there was no error in not instructing the jury with CALJIC No. 8.31 because no substantial evidence supported that instruction. (RB 151.) Respondent's contention is flawed for several reasons. 31
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 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: B. The Constitutional Issues Are No
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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