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

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murders of the two victims for the benefit of their gang," and therefore there was no error in not giving the instruction." (RB at p. 154.) Respondent lists numerous facts in an attempt to support this contention, including the "use of armor piercing bullets for well-aimed shots that killed both victims," the fact that the defendants were hardcore gang members who kill enemies, and the fact that they bragged about the shooting. (RB at p. 154.) The contention is absurd. The first fallacy of this position is that there was no direct evidence regarding the mental state ofeither defendant, so the idea that it was "indisputably established" at trial that the defendants acted "cold-bloodedly" and with premeditation and deliberation is a fantasy on respondent's part. Appellant acknowledges that Vasquez's testimony might provide some support for respondent's position, but for reasons stated previously his testimony was highly unreliable as a matter of law. (Ante, at pp. 12-14.) Furthermore, even if his testimony or Contreras's were to be believed, it is still a far cry from reality to contend that a first degree mental state was "indisputably established." Respondent claims far more than the evidence can possibly support. Moreover, none of respondent's allegations really address the issue in question. Even if there was evidence supporting a first-degree theory, the lesser included instruction must still be given ifthere is substantial evidence which could also have supported the description ofsecond degree murder described in CALnc No. 8.31, namely an act performed with a conscious disregard for human life, rather than a deliberate and premeditated murder. Contrary to respondent's argument, the facts in evidence are equally consistent with the theory of second degree murder as they are with premeditation. Respondent's conclusions do not follow from the evidence cited in their support. For example, the fact that the rifle contained armor piercing bullets does not logically reflect on his specific mental state when the shots were actually fired. If he or Nunez spotted Robinson and Fuller and immediately lifted the rifle and fired the shots on a whim and without premeditation-a scenario equally possible 34
as the prosecution's first-degree theory-- the fact that the rifle contained a certain type of bullet at that moment would be irrelevant to the question of whether the shooting was premeditated. Likewise, the allegation that appellant was a gang member does not preclude a finding that the shooting was a rash act without premeditation. Nor does it preclude a fmding that appellant engaged in an intentional act, the natural consequences of which were dangerous to human life, with a conscious disregard for human life. Therefore, even if it were true that appellant was a hard-core gang member, that fact would not negate the possibility ofsecond degree murder. Similarly, the preposterous testimony of a paid prosecution witness that appellant and Nunez subsequently boasted about the killing-- to a total stranger and member of a rival gang-- does not mean there was not substantial evidence from which a jury could have convicted appellant ofsecond degree murder. First, the admissions quoted by respondent do not reflect on mental state. For example, the statements, "I did that" or ''we AK'd them" are equally consistent with a rash act, a lack ofintent, an intent to commit an assault, and a premeditated murder. In fact, the statement that "the guy looked at him wrong so he turned around and blasted him" may support a spur ofthe moment shooting without premeditation. Second, they would be just as likely to brag about the crime whether it was first or second degree murder. Indeed, as noted above, the prosecution's gang expert testified that gang members may boast about their exploits to gain respect. Therefore, even if the murder was second degree, a gang member may want to enhance his status after the fact by bragging about the offense and exaggerating the facts to enhance his gangster image. As a result, the fact that appellant may have boasted about being involved in this crime is equally consistent with having been guilty ofeither first or second degree murder. In this case, the jury rejected the hate crimes allegation, which may have provided a greater basis for premeditation and deliberation, as that type of crime would have required the defendant to consider his motives and act upon them. It 35
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 and 44: B. The Constitutional Issues Are No
Page 45 and 46: turn relied on the language from Wi
Page 47: Indeed, in this case the instructio
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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