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

Respondent nevertheless argues that specific defmitions within the given
instruction, combined with other instructions given to the jury, provided adequate
instruction on the sentence enhancement. (RB at p. 168-172.) However,
respondent does not stop to explain why any reasonable juror would choose to
abandon the instruction's clear directive regarding the elements which must be
established in order to return a finding on something for which it did not receive
instructions, and apply instead the complex and strained construction respondent
urges this Court to accept as an adequate instruction.
For example, respondent makes a convoluted argument that the jury could
have found the missing specific intent element from the instruction's inclusion of
the word ''willfully.'' Respondent takes the word ''willfully'' from paragraph two
of the instruction and, although he acknowledges it "usually defines a general
criminal intent," nevertheless contends that a reasonable juror who read the term
''willfully'' in combination with the definition of "active participation,,2 in
paragraph five of the instruction would realize that "'willfully' meant an intent to
do a further act or achieve a future consequence beyond the charged murder, Le.,
specific intent." (RB at p. 168.) Alternatively, respondent makes the equally
outlandish assertion that a reasonable juror would have deduced the need for the
missing specific intent element (1) by taking the aiding and abetting requirement
ofthe given instruction; (2) by considering the instructions as a whole and each in
light of all the others under CALJIC No. 1.00; and (3) by extracting from the
language of CALliC No. 3.01 the conclusion that the mental state required for
liability as an aider and abettor is specific intent. (See RB at pp. 168-169.)
While respondent's arguments perhaps deserve some credit for creativity, it
does not seem very likely that a reasonable juror would parse the given instruction
2 The jury was instructed: "Active participation means that the person (l) must
have a current relationship with the criminal street gang that is more than in name
only, passive, inactive, or purely technical and (2) must devote all or part of his
time or efforts to the criminal street gang." (37CT 10761-10762; 14RT 3182.)
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