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

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