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

doubt that the defendant, with the intent to kill, aided and abetted any actor in the
commission of the murder in the first degree, or with reckless indifference to
human life and as a major participant, aided and abetted the crime. Thus, under
this instruction the jury could find the special circumstance to be true if it found
merely reckless indifference to life, when in fact it was required to find an intent to
kill.
Because the prosecutor expressly acknowledged the fact that he had not
proven who the actual killer was, it is not possible that the jury could have made
the finding that appellant was the actual killer. Therefore, this instruction allowed
the jury to convict on two theories, one of which was improper and therefore
violative ofthe principles explained in People v. Guiton (1993) 4 Ca1.4th 1116 and
subsequent cases. (See AOB at pp. 90-93.) There is nothing in the verdict form
which would make it possible to determine which theory the jury relied upon, and
reversal is therefore compelled.
B. The Doctrine OfInvited Error Does Not Bar This Claim
Respondent argues that the doctrine of invited error prohibits appellants
from raising this issue. Respondent states, "Appellants never requested that
CALJIC No. 8.80.1 be redacted. It was given at their request. (13RT 3045; 37CT
10778)" (RB at p. 177.) Respondent asserts that because appellants did not raise
the claims based on the Fifth, Sixth, Eighth, and Fourteenth Amendments below,
appellants are prohibited from arguing these constitutional errors at this stage.
(RB at p. 177.)
Neither ofthese contentions have merit.
First, as noted previously (Ante, at pp. 29-31.), in order for the doctrine of
invited error to apply it must be clear that counsel acted for tactical reasons and
not out of ignorance or mistake. The duty to properly instruct the jury belongs to
the court, not to defense counsel, and counsel's mere acquiescence or failure to
object to an incorrect instruction does not trigger the invited error doctrine. (See
54