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

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compels reversal unless respondent has "prove[d] beyond a reasonable doubt that the error ... did not contribute to" the jury's verdict. (Chapman v. California, supra, 386 U.S. at p. 24.) Respondent contends overwhelming evidence of a gang purpose rendered any instructional error harmless under either the standard of Watson or of Chapman. (RB at p. 172.) Respondent is wrong. In the opening brief (AOB at pp. 78-79), appellant made the following points with regard to the effect of the instructional error: (1) appellant neither conceded nor admitted the omitted elements of the sentence enhancement, so the instructional error may not be found harmless on that basis (Carella v. California, supra, 491 U.S. at p. 271 (cone. opn. of Scalia, J.); (2) the jury was not called upon to find the omitted elements as predicate facts in the resolution ofappellant's guilt of the substantive offenses (Ibid.); (3) the jury refused to find the hate crime special circumstance allegations to be true and thus rejected the prosecution's theory that appellant killed for reasons related to his gang membership (the prosecution's theory was that appellant was a West Side Wilmas (WSW) gang member motivated by the culture ofhis particular gang to shoot and kill Robinson and Fuller because they were African-Americans); (4) implicit in the jury's rejection of the hate crime special circumstance allegations and by extension the prosecution's theory is the jury's rejection of the contention that Robinson and Fuller were murdered for gang-related reasons, the gravamen ofthe sentence enhancement in issue here; (5) the foregoing suggests that a properly instructed jury would not have found the sentence enhancement to be true; and (6) no other properly given instruction required that the jury resolve the factual questions in issue in the omitted instruction. Thus, it may not be said that the jury's verdict on other points resolved the factual issues necessary to a finding of the sentence enhancement. (California v. Roy (1997) 519 U.S. 2.) In its brief, respondent fails to respond to or argue a single one of these points and thereby essentially concedes them. (People v. Adams (1983) 143 46
Cal.App.3d 970, 992.) Instead, respondent simply recites evidence pertaining to gang customs and culture and the defendants' gang membership and to Ernie Vasquez's highly improbable testimony that both appellant and Nunez individually divulged their guilt to him during his single jailhouse contact with each of them. (RB at pp. 172-174.) Respondent falls far short of carrying the burden ofshowing the instructional error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) Moreover, the jury's rejection of the prosecution's motive theory - that appellant and Nunez shot and killed two African-Americans because of their race for gang purposes, as appellant has discussed above and in the opening brief demonstrates that but for the instructional error it is "reasonably probable" the trier of fact would have reached a result more favorable to the defendant. (People v. Watson, supra, 46 Ca1.2d 818, 836.) For these reasons, appellant respectfully submits, reversal ofthe gang benefit enhancement is warranted. E. The Consequences Of The Instructional Error Reached Beyond The Gang Benefit Enhancement 1. Appellants Did Not Forfeit Their Fifth, Sixth, Eighth, And Fourteenth Amendment Claims Appellant contended the instructional error complained ofhere violated his Fifth and Fourteenth Amendment right to due process of law, as well as the Sixth Amendment notice and jury trial guarantees that any fact, other than a prior conviction, that increases the maximum penalty for a crime must be charged in a pleading, submitted to a jury, and proven beyond a reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466; In re Winship (1970) 397 U.S. 358, 364.) Because a sentence enhancement requires findings offact that increase the maximum penalty for a crime, the United States Supreme Court has held that the Apprendi rule applies specifically to 47
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TABLE OF CONTENTS APPELLANT WILLIAM
Page 4 and 5:
2. The Pleadings Failed To NotifY A
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VI THE JURy FAILED TO FIND THE DEGR
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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 and 48: Indeed, in this case the instructio
Page 49 and 50: as the prosecution's first-degree t
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: Appellant has explained above and i
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
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x THE TRIAL COURT ERRED IN PERMITTI
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XI THE PROSECUTOR'S MISCONDUCT IN A
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"guarantee." Appellant is not proce
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v. Berryman (1993) 6 Ca1.4th 1048,
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Contreras. Viewed in this context,
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overwhelmingly showed that only one
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XII GUILT AND PENALTY PHASE VERDICT
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Where Juror No. 2211 is concerned,
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The jury in Cruz was given a versio
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PENALTY PHASE ISSUES XIV THE TRIAL
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B. The Flaw In Respondent's Content
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participation ofall jurors. Contrar
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confuse[d]" (Harris) is no more tha
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It is submitted that these instruct
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inherent power to review an issue i
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prospective jurors who were found t
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(Id at p. 821.) This court has char
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church. (18RT 4448:4-6,4451:11-14.)
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(18RT 4450:12-14) or her mother (18
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had in fact reached an impasse at t
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There is an impasse. It is hung. Bu
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establishes, for example, that, whe
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and Code of Civil Procedure 233, wh
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a demonstrable reality. The court a
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CERTIFICATE OF WORD COUNT Rule 8.63
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Appellant, William Satele, Reply Brief - California Courts - State of ...

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