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

In Argument V of the Opening Brief, appellant more fully explained that
the trial court gave the jury the wrong instruction regarding the personal firearm
use enhancement. As relevant here, that incorrect instruction included language
that directed the jury to the gang enhancement instruction, to wit: "This allegation
pursuant to Penal Code section l2022.53(d) applies to any person charged as a
principal in the commission ofan offense, when a violation ofPenal Code sections
l2022.53(d) and l86.22(b) are plead and proved. [sic]" (37CT 10788; l4RT
3200-3201.)
The prosecutor made specific reference to the foregoing sentence within the
personal firearm use enhancement instruction and told the jury that inasmuch as he
had both pled and proven the truth of the gang enhancement allegation he was
relieved under that aspect of the instruction of the burden of proving personal
firearm use by a particular defendant. (14RT 3223.) As appellant explained in the
opening brief, the prosecutor's statement and the instruction were both manifestly
incorrect statements ofthe law. The misdirection inherent in both the prosecutor's
argument and the court's instruction permitted the jury to return true findings on
the personal firearm use enhancements in reliance upon the determination of the
gang enhancement, which, as appellant has explained above, the jury made in
reliance upon an incorrect instruction pertaining to the gang enhancement.
Respondent merely contends this claim fails because there was no
instructional error and, if there was error, the error was harmless under Watson.
(RB at p. 175.) However, as appellant has explained above, (1) respondent's
argument the jury was adequately instructed is not supportable; and (2) the
instructional error contributed to the verdict beyond a reasonable doubt under the
governing standard ofChapman v. California, supra, 386 U.S. at p. 24.)
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