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

THE COURT'S ERRONEOUS INSTRUCTION AS TO THE
PERSONAL FIREARM USE ENHANCEMENT VIOLATED
APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL
RIGHTS.
A. Introductory Statement
V
Appellant contended in the opening brief that the personal fireann use
enhancements (Pen. Code, § 12022.53, subd. (d)) attached to counts I and 2 were
obtained in violation of his Fifth and Fourteenth Amendment Due Process rights
and must be stricken. Appellant argued that the enhancements were imposed
because defective instructions failed to distinguish the proof necessary to
detennine the actual shooter on the one hand and the aider and abettor on the other
and also failed to define the tenn "intentionally and personally discharged a
fireann." (See AOB, Argument V.) Respondent contends there was no error in the
instruction given. (RB 184-188.)
Appellant also argued that the instructions additionally created a
impennissible presumption that relieved the prosecution ofproving appellant was
in fact a principal in the commission of the crime by instructing the jury it was
required to find appellant was a principal subject to the enhancement if it found he
had been charged as a principal and the gang benefit enhancement (Pen. Code, §
186.22, subd. (b)(1)) had been pled and proved. (AOB at pp. 108-109.)
Respondent contends there was no burden-shifting as to the gun-use findings (RB
at pp. 191-194), and further contends the jury was not required to agree on who
was the actual "shooter" and who was the "aider and abettor" (RB at p. 190).
Also, the instructions were subject to an interpretation that allowed the jury
to find the enhancement to be true on a legally invalid theory, namely that
appellant was liable for the enhancement because he had been charged as a
principal. (AOB at pp. 111-114.) These incorrect statements of the law were not
corrected by other properly given instructions. (AOB at p. 114-115.) Respondent
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