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

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sentence enhancement allegations. (Blakely v. Washington, supra, 542 U.S. at pp. 301-302; Apprendi v. New Jersey, supra, 530 U.S. at pp. 476, 490.) (AOB 77.) Respondent argues these contentions lack merit. (RB at pp. 163-165.) Once again, respondent is wrong. 2. The Pleadings Failed To Notify Appellant He Would Have To Defend Against The Substantive Offense OfParticipation In A Criminal Street Gang Appellant contended in the opening briefthat he was deprived ofhis rights under the Fifth, Sixth, and Fourteenth Amendments because he was found under the instructions given to have committed the substantive offense ofparticipation in a criminal street gang, an offense with which he had not been charged. Because the pleadings failed to give him notice he would have to defend against the substantive offense, appellant argued the instructional error constituted structural error warranting reversal ofthe enhancement. (Nunez AOB at pp. 135-138, AOB at p. 329; Jackson v. Virginia (1979) 443 U.S. 307, 314; Gautt v. Lewis (9th Cir. 2007) 489 F3d 993.) Respondent again has no response to appellant's contention that as a result of the gang participation instructions given his jury he was found liable for an offense ofwhich he was never given notice. Instead, respondent merely points out that the pleadings alleged section 186.22, subdivision (b)(1), enhancements and the jury returned true findings to the same-numbered enhancements. (RB at p. 163.) However, respondent never addresses the gist of appellant's contention that the instructions given his jury required that he defend against the substantive offense of gang participation. Because the pleadings failed to notify him of that charge, he was deprived of his rights under the Fifth, Sixth, and Fourteenth Amendments and reversal ofthe enhancement is warranted. 48
3. Appellant's Did Not Forfeit His Constitutional Claims By Inaction In The Trial Court Respondent contends that because appellant failed to assert his constitutional claims below he has waived them. (RB at p. 163.) However, the misinstruction in issue here is ofthe kind that requires no trial court action on the part ofthe defendant to preserve it. As explained above (ante, at p. 29), is the sua sponte duty of the trial court to give correct instructions on the elements of an offense or enhancement allegation. Accordingly, an erroneous instruction affecting a defendant's substantial rights require no objection or other trial court action by the defendant to preserve the issue for appeal. In addition, no trial court action is required by the defendant for preservation purposes when the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. (People v. Boyer, supra, 38 Cal.4th 412,441 fn. 17; People v. Wilson, supra, 43 Cal.4th 1, 13-14 fn. 3.) The Due Process Clause requires that a court must instruct the jury that the state bears the burden of proving each element of the crime beyond a reasonable doubt and that the court must state each of those elements to the jury. (United States v. Gaudin (1995) 515 U.S. 506, 509-510; Evenchyk v. Stewart (9th Cir. 2003) 340 F.3d 933-939; In re Winship (1970) 397 U.S. 358, 363; Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278; Carella v. California (1989) 491 U.S. 263, 265) Omission of an element from an instruction is federal due process error and compels reversal unless the beneficiary ofthe error can show the error to have been harmless beyond a reasonable doubt. (Ibid.) Similarly, to find the facts necessary for a sentence enhancement to be true beyond a reasonable doubt, the jury must be properly instructed on the elements of the enhancement. Thus, this court has held that the trial court must instruct on 49
Page 2 and 3:
TABLE OF CONTENTS APPELLANT WILLIAM
Page 4 and 5:
2. The Pleadings Failed To NotifY A
Page 6 and 7:
VI THE JURy FAILED TO FIND THE DEGR
Page 8 and 9:
C. Standard OfReview And Prejudice
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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 and 60: Appellant has explained above and i
Page 61: Cal.App.3d 970, 992.) Instead, resp
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
Page 111 and 112: x THE TRIAL COURT ERRED IN PERMITTI
Page 113 and 114:
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
Page 138:
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
Page 151 and 152:
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
Page 157 and 158:
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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