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

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