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

V THE PERSONAL FIREARM USE ENHANCEMENT MUST BE
REVERSED. THE COURT'S ERRONEOUS INSTRUCTION AS
TO THIS ENHANCEMENT VIOLATED APPELLANT'S FEDERAL
CONSTITUTIONAL RIGHTS BECAUSE IT AND OTHER ERRORS
RELIEVED THE STATE OF THE BURDEN OF PROOF ON THE
CRITICAL QUESTION OF MENTAL STATE AND FAILED TO
DEFINE ESSENTIAL ELEMENTS OF THE ENHANCEMENT.
THE ERRORS DESCRIBED HEREIN DENIED APPELLANT A
FAIR TRIAL AT BOTH GUILT AND PENALTY PHASES
AND REVERSAL OF THE JUDGMENT IS WARRANTED. 63
A. Introductory Statement 63
B. Respondent's Two-Shooter Theory Contradicts the Theory On
Which The Case Was Tried, and Respondent Must Be Estopped
From Asserting It 64
C. The ProofRequirements OfPenal Code Section 12022.53, Subds.
(D) And (E)(1) 66
D. The Prosecution Successfully Argued That Appellant Was Liable
For The Enhancement On The Basis OfA Mistake About The Law 69
E. The Instruction Given The Jury Omitted Critical Elements OfThe
Enhancement, Created A Mandatory Presumption, And Was Subject
To Interpretation As Presenting Alternate Legal Theories, One Of
Which Was Legally Incorrect 70
F. The Impact OfThe Instructional Errors Was Exacerbated By The
Trial Court's Instruction That The Jury Was Required To Use Verdict
Forms That Failed To Reflect The Legally Available Options And
By The Fact That The Language Set Forth In The Verdicts Conformed
To The Legally Incorrect Theory Set Forth In The Court's Instruction 72
G. Appellant Did Not Forfeit His Constitutional Claims, Including His
Apprendi-Blakely Claim 74
H. The Personal Firearm Use Enhancement Is Not Sufficiently Supported
By Evidence The Crimes Were Committed For The Benefit OfA
Street Gang And Must Be Reversed 75
I. The Instructional Errors Were Not Harmless Beyond A Reasonable
Doubt 76
IV