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

argues appellant's reading of the instruction is "strained" and that other
instructions corrected the misinstruction. (RB 188.)
Appellant also argued that the instructional errors were reinforced by the
prosecutor's argument (AOB at p. 99) and again in the language of the verdict
forms, which only provided a place for the jury to find appellant was liable as the
actual shooter. Respondent contends the prosecutor correctly stated the applicable
law in argument. (RB at p. 188-189.) In his topic heading, respondent contends
there was no defect in the verdict fonn; but in his substantive text he argues that
the wording ofthe verdict forms was immaterial because the verdicts indicated the
jury's intention to find both appellants liable for the gun use. (RB 190).
Respondent is wrong on all counts.
B. Respondent's Two-Shooter Theory Contradicts the Theory On Which The
Case Was Tried, and Respondent Must Be Estopped From Asserting It
As explained above (ante, at pp. 8-11), at trial, the prosecutor presented (1)
substantial evidence that only one shooter shot and killed Edward Robinson and
Renesha Fuller and (2) admitted he had presented insufficient evidence to prove
the identity ofthe shooter. In colloquy with court and counsel and in argument to
the jury, the prosecutor freely acknowledged that this was the state of the
evidence. (13RT 3048-3049; 14RT 3222-3223; AOB 53-58.)
In the opening brief, appellant described the evidence establishing that only
one person shot and killed the victims. (AOB at pp. 32-33, 38-39.) As discussed
above (ante, at pp. 9-12), the evidence included (1) forensic firearms evidence that
all of the gunshots were fired from a single, very large, and unwieldy "high
capacity rapid fire semiautomatic" weapon (9RT 1979, 1986, 1987-1989); (2)
percipient witness testimony that the gunshots occurred in a single rapid burst that
did not allow for even a quick exchange of the firearm between the car's
occupants (5RT 983-984, 988-990); (3) coroner's testimony that the placement of
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