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

A. Introduction
III.
THE COURT VIOLATED CONSTITUTIONAL
RIGHTS WHEN IT OMITTED ESSENTIAL
ELEMENTS FROM THE GANG ENHANCEMENT
INSTRUCTION, AND THE ENHANCEMENT
MUST THEREFORE BE REVERSED
The jury found to be true two sentence enhancement allegations attached to
Counts I and II; namely, that appellant had committed the murders for the benefit
ofa criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) In the opening brief,
appellant contended these enhancements must be reversed because the trial court
mistakenly instructed the jury on the substantive offense of participation in a
criminal street gang rather than on the charged sentence enhancement.
Respondent acknowledges that the trial court instructed on the substantive
offense rather than on the enhancement, but maintains the incorrect instruction
"adequately" instructed the jury. (RB at 168-172.) Alternatively, respondent
contends evidence of a gang purpose was so overwhelming any instructional error
was harmless. (RB at 172-174.) Respondent also argues appellant's federal
constitutional claims are barred by his failure to assert them below (RB at 163)
and further contends appellant suffered no further prejudice as a result of the
court's misinstruction. (RB at 175.) Respondent is wrong on all counts.
B. The Jury Was Not "Adequately" Instructed
Instead of instructing the jury on the gang enhancement (Pen. Code, §
186.22, subd. (b)(1», the trial court mistakenly instructed on the substantive
offense ofparticipation in a criminal street gang. (CALJIC No. 6.50, see AOB at
pp.74-75.)
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