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

passengers, and all three fled. Obviously, respondent would not argue that this
showed that the unknown passenger was the shooter or had the intent to kill
Robinson and Fuller. Either the inference applies to all three occupants ofthe car
or it applies to none ofthem. Thus, the inference cannot be drawn as to appellant.
In a further attempt to bolster the contention that appellant had the intent to
kill, respondent notes that "[u]nlike Nunez, who gave alibi testimony Nunez [sic]
exercised his constitutional right by refusing to testify in his defense.,,7 Appellant
assumes respondent intended the second "Nunez" to refer to appellant, but even
so, respondent's point eludes appellant. The mere fact that Nunez testified and
presented an alibi defense while appellant did not is obviously irrelevant to prove
Nunez was not the shooter, nor does appellant's exercise of his right to remain
silent provide a basis for the jury to "necessarily" find that appellant was the
shooter. Indeed, in spite of Nunez's alibi testimony, respondent continues to
maintain that the jury necessarily found intent to kill on the part of Nunez. The
conflict in respondent's positions speaks volumes regarding the irrelevancy ofthis
argument in establishing evidence ofintent to kill.
The remaining facts recited by respondent are presented by respondent to
demonstrate that the jury necessarily found that Nunez was the actual shooter and
had the intent to kill. Because this relates primarily to Nunez, appellant will not
analyze those facts in detail. However, it should be noted that a similar analysis
would apply, namely, even if the jury could have inferred intent to kill from the
evidence cited by respondent, but the jury would not necessarily have to infer
intent to kill from this evidence.
c. The Error Was Not Harmless
Respondent contends that the error in glvmg an unredacted form of
CALJIC 8.80.1 was harmless because the jury "presumably knew that it had to
7For clarity, it should be noted that Nunez did testify, but appellant did not.
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