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

More documents

Recommendations

Info

not compelled as a matter of state or federal law. "Each juror need only have found defendant guilty beyond a reasonable doubt of the single offense of first degree murder as defined by statute and charged in the information." (People v. Milwee, supra, 18 Ca1.4th at p. 160.) However, that cannot be the case here, as appellant has shown above, because the very language of subdivisions (d) and (e)(I) and Garcia's explication of the statute's requirements establish that the statutes authorize a sequential imposition of liability. The statutory language specifically provides that the prosecution is required to first prove beyond a reasonable doubt that a principal intentionally and personally discharged a firearm under subdivision (d) before vicarious liability for the aider and abettor under subdivision (e)(1) applies. (People v. Garcia, supra, 28 Ca1.4th at pp. 1173-1174.) Respondent's contention that subdivision (e) imposes liability for gun use on both appellants regardless ofwho did the actual shooting (RB at p. 190) is not supported by the law. The Attorney General's reading of subdivisions (d) and (e)(1) would make subdivision (d)'s requirement that the jury find that a particular principal intentionally and personally discharge a firearm meaningless. "Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage. [Citation.]" (Arnett v. Dal Cielo (1996) 14 Ca1.4th 4, 22; see also People v. Flores (2005) 129 Cal.AppAth 174 (trial court's erroneous omission of accomplice limitation in Pen. Code, § 12022.53(d) instruction in accomplice killing case required reversal ofsubdivision (d) enhancement).) Similarly, respondent's assertion that the jury need not decide which ofthe defendants was the actual killer in proving the enhancement because the jury convicted both ofthe substantive crime ofmurder is also not supportable. There is an obvious difference between the substantive offense of murder and the gun use enhancement in that the substantive offense punishes for the crime and the enhancement punishes for a particular manner of killing. In the case of the gun 68
use enhancement, the statutory language explicitly requires that the jury find the actual shooter beyond a reasonable doubt. misplaced. For these reasons, respondent's reliance on the "unanimity cases" IS D. The Prosecution Successfully Argued That Appellant Was Liable For The Enhancement On The Basis OfA Mistake About The Law It was the prosecutor who proposed that the jury be instructed as it was. In making the request, the prosecutor indicated there was but a single shooter and that he was well aware he had failed to prove which of the two defendants, i.e., appellant or Nunez, was the actual shooter and which defendant was the aider and abettor. The instruction put forth by the prosecutor and his argument made clear that he sought by his proffered instruction to impose liability for the weapon use enhancement upon both appellant and Nunez without proving that the actual shooter intentionally and personally discharged the firearm and without proving the non-shooter was an accomplice with the requisite mental state. (13RT 3048 3049.) As a result, appellant contended in the opening brief that the prosecutor incorrectly stated the law, misdirected the jury, and substantially reduced his burden of proving appellant's liability for the enhancement as either the actual killer or the aider and abettor accomplice. Respondent relies upon the same series of "unanimity cases" cited and discussed in the preceding sections (RB 189) and reiterates that unanimity as to the identity ofthe shooter and the identity ofthe aider and abettor was not required (RB 190) and further reiterates that the prosecutor's understanding of the law as reflected in the modified instruction and argument was based upon a correct understanding ofthe law. (RB 188-189.) Appellant has explained in the previous section that these cases do not apply to the enhancement and respectfully refers the reader to that discussion. 69
Page 2 and 3:
TABLE OF CONTENTS APPELLANT WILLIAM
Page 4 and 5:
2. The Pleadings Failed To NotifY A
Page 6 and 7:
VI THE JURy FAILED TO FIND THE DEGR
Page 8 and 9:
C. Standard OfReview And Prejudice
Page 10 and 11:
XIII APPELLANT JOINS IN ALL ISSUES
Page 12 and 13:
Mitchell v. Esparza (2003) 540 U.S.
Page 14 and 15:
People v. Cruz (2001) 93 Cal.App.4t
Page 16 and 17:
People v. Scott (1978) 21 Cal. 3d 2
Page 18 and 19:
CALlIC No. 8.31 passim CALJIC No. 8
Page 20 and 21:
ARGUMENTS GUILT PHASE ISSUES I THE
Page 22 and 23:
the facts indicate that only one de
Page 24 and 25:
form finding "personal use" to have
Page 26 and 27:
57 Cal.AppAth 871, 877; 9 Witkin, C
Page 28 and 29:
the weapon. Without again recountin
Page 30 and 31:
Respondent notes that between the m
Page 32 and 33: In another apparent attempt to just
Page 34 and 35: appellant has repeatedly said, the
Page 37 and 38: not present them to the trial court
Page 39 and 40: In People v. Knighten (1980) 105 Ca
Page 41 and 42: Finally, it must be noted that the
Page 43 and 44: B. The Constitutional Issues Are No
Page 45 and 46: turn relied on the language from Wi
Page 47 and 48: Indeed, in this case the instructio
Page 49 and 50: as the prosecution's first-degree t
Page 51 and 52: F. Conclusion In summary, by failin
Page 53 and 54: As appellant explained in the openi
Page 55 and 56: in the manner suggested by responde
Page 57 and 58: Furthennore, it is well established
Page 59 and 60: Appellant has explained above and i
Page 61 and 62: Cal.App.3d 970, 992.) Instead, resp
Page 63 and 64: 3. Appellant's Did Not Forfeit His
Page 65 and 66: In Argument V of the Opening Brief,
Page 67 and 68: IV IN FAILING TO REDACT PORTIONS OF
Page 69 and 70: People v. Barraza (1979) 23 Ca1.3d
Page 71 and 72: have been unreasonable for the jury
Page 73 and 74: shot Fuller and Robinson, and that
Page 75 and 76: find 'intent to kill'" on the basis
Page 77 and 78: THE COURT'S ERRONEOUS INSTRUCTION A
Page 79 and 80: Robinson's wounds indicated the sho
Page 81: caused great bodily injury or death
Page 85 and 86: 192-193), but fails to explain how
Page 87 and 88: Then we have the words "personal us
Page 89 and 90: trial and had therefore forfeited t
Page 91 and 92: merits of appellant's claim. (AOB a
Page 93 and 94: jury trial. (People v. Gottman (197
Page 95 and 96: Respondent argues that another theo
Page 97 and 98: needs to rely on the penalty verdic
Page 99 and 100: may not cross-examine a witness upo
Page 101 and 102: itself to appellant would be improp
Page 103 and 104: B. The Court Erred In Refusing The
Page 105 and 106: egarding the intent ofthe non-shoot
Page 107 and 108: B. Respondent's Arguments Are Mispl
Page 109 and 110: ut is only being allowed for use ag
Page 111 and 112: x THE TRIAL COURT ERRED IN PERMITTI
Page 113 and 114: XI THE PROSECUTOR'S MISCONDUCT IN A
Page 115 and 116: "guarantee." Appellant is not proce
Page 117 and 118: v. Berryman (1993) 6 Ca1.4th 1048,
Page 119 and 120: Contreras. Viewed in this context,
Page 122 and 123: overwhelmingly showed that only one
Page 124 and 125: XII GUILT AND PENALTY PHASE VERDICT
Page 126 and 127: Where Juror No. 2211 is concerned,
Page 128 and 129: The jury in Cruz was given a versio
Page 130 and 131: PENALTY PHASE ISSUES XIV THE TRIAL
Page 132 and 133:
B. The Flaw In Respondent's Content
Page 134 and 135:
participation ofall jurors. Contrar
Page 136 and 137:
confuse[d]" (Harris) is no more tha
Page 138:
It is submitted that these instruct
Page 141 and 142:
inherent power to review an issue i
Page 143 and 144:
prospective jurors who were found t
Page 145 and 146:
(Id at p. 821.) This court has char
Page 147 and 148:
church. (18RT 4448:4-6,4451:11-14.)
Page 149 and 150:
(18RT 4450:12-14) or her mother (18
Page 151 and 152:
had in fact reached an impasse at t
Page 153 and 154:
There is an impasse. It is hung. Bu
Page 155 and 156:
establishes, for example, that, whe
Page 157 and 158:
and Code of Civil Procedure 233, wh
Page 159 and 160:
a demonstrable reality. The court a
Page 161 and 162:
CERTIFICATE OF WORD COUNT Rule 8.63
show all

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

Create successful ePaper yourself

Delete template?

Save as template?