Appellant, William Satele, Reply Brief - California Courts - State of ...
Appellant, William Satele, Reply Brief - California Courts - State of ...
Appellant, William Satele, Reply Brief - California Courts - State of ...
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First, respondent states, "speculation <strong>of</strong> "one shooter" is not "substantial<br />
evidence" <strong>of</strong> implied malice for CALJIC No. 8.31 as to the "non-shooter[.]" (RB<br />
at p. 151.) This rationale is unpersuasive. First, the contention that there was one<br />
shooter is not "speculation." Rather, as explained above (ante, at p. 9-11), the<br />
conclusion that there was only one shooter is not merely supported but compelled<br />
by a great deal <strong>of</strong> evidence, including the testimony regarding the rapidity with<br />
which the bullets were fired, the fact that the casings were found clustered closely<br />
together, the nature <strong>of</strong> the wounds and the position from which they must have<br />
been inflicted, and the virtual impossibility (to say nothing <strong>of</strong>the absurdity) <strong>of</strong>two<br />
persons passing a large assault weapon from one defendant to another in the<br />
closed quarters <strong>of</strong>the car in the few seconds it took to fire all the shots.<br />
Likewise, respondent dismisses as "speculation" appellant's contention that<br />
the shots were fired rapidly. (RB at p. 151.) Again, this is not "speculation, but is<br />
the only conclusion supported by the evidence, particularly the consistent<br />
testimony <strong>of</strong> the only percipient witnesses, all <strong>of</strong> whom described the shots as<br />
having been fired rapidly. Indeed, even respondent notes in another portion <strong>of</strong><br />
respondent's briefthat Bertha said the shots were fired "fast." (RB at p.116.) Nor<br />
is this conclusion dependent upon inferences made from circumstantial evidence.<br />
Rather, it is based on the direct evidence found in the testimony <strong>of</strong> three <strong>of</strong> the<br />
percipient witnesses the prosecution called to the stand, namely Bertha and Frank<br />
Jacque and Vasquez. Therefore, it is not "speculation" to believe the shots were<br />
fired rapidly.<br />
Secondly, respondent notes that appellant did not testify, and there was no<br />
evidence <strong>of</strong> alibi or mitigation as to appellant. (RB at p. 152.) This contention<br />
again underscores the fact that respondent fails to grasp the nature <strong>of</strong> appellant's<br />
argument. Instructions on lesser-included <strong>of</strong>fenses do not have to rely on a<br />
defendant's testimony <strong>of</strong> alibi or mitigation. In fact, a claim <strong>of</strong> alibi may negate<br />
the need for instructions on lesser included <strong>of</strong>fenses because the defendant would<br />
be relying on an "all or nothing" defense.<br />
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