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

opinion, is contrary to the facts and clearly contrary to the theory
upon which the case was tried. The point was not seriously urged by
appellant until the filing of its reply brief. Until that time it appears
that it was the theory of all concerned that the question involved was
whether Searle as agent of the Ernsts had ostensible authority to
deliver the deed and collect the purchase price. The rule is well
settled that the theory upon which a case is tried must be adhered to
on appeal. A party is not permitted to change his position and adopt
a new and different theory on appeal. To permit him to do so would
not only be unfair to the trial court, but manifestly unjust to the
opposing litigant. [Citation.]
(Ernst v. Searle, supra. 218 Cal. at pp. 240-241.)
Appellant respectfully submits that respondent should be estopped from
asserting the two-shooter theory on appeal, since such theory stands in direct
contrast to the theory under which the case was prosecuted and tried to the jury.
C. The ProofRequirements Of Penal Code Section 12022.53, Subds.
(D) And (E)(I)
In the opening brief, appellant discussed the case of People v. Garcia
(2002) 28 Cal.4th 1166, in which this court identified the separate proofs needed
to impose liability under Penal Code section 12022.53, subdivisions (d) and (e)(l),
upon a defendant/shooter and a defendant/aider and abettor. (AOB at p. 102-103.)
Garcia explained that a defendant/shooter who is convicted of a specified
felony and who is found to have intentionally and personally discharged a firearm
proximately causing great bodily injury or death when committing that felony is
subject to section 12022.53, subdivision (d). (People v. Garcia, supra, 28 Cal.4th
at p. 1173.) This court further explained that in order to fmd an aider and abettor
who is not the shooter liable under subdivision (e), "the prosecution must plead
and prove that (1) a principal committed an offense enumerated in section
12022.53, subdivision (a), section 246, or section 12034, subdivision (c) or (d);
(2) a principal intentionally and personally discharged a firearm and proximately
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