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

E. The Instruction Given The Jury Omitted Critical Elements Of The
Enhancement, Created A Mandatory Presumption, And Was Subject To
Interpretation As Presenting Alternate Legal Theories, One Of Which Was
Legally Incorrect
In addition to omitting the requirement that the juror was required to fmd
that a particular principal intentionally and personally discharged the firearm
proximately causing death, which appellant has discussed above, appellant
contended in the opening brief that the modified instruction given to appellant's
jury created an impermissible mandatory presumption. (See AOB at pp. 108-111.)
The court instructed the jury in relevant part: "This allegation pursuant to
Penal Code section 12022.53(d) applies to any person charged as a principal in the
commission of an offense, when a violation of Penal Code sections 12022.53(d)
and 186.22(b) are plead [sic] and proved." (37CT 10788; 14RT 3200-3201.)
The instruction thus expressly told the jury the law required it to find the
personal firearm use enhancements to be true as to any person charged as a
principal in the commission of the crime when Penal Code section 12022.53 and
186.22, subdivision (b)(1) are pled and proved. The instruction then required that
the jury find that appellant was in fact a principal in the commission ofthe crime
from the fact appellant had been charged as a principal in the crime. A reasonable
jury could have interpreted the instruction as a direction to find appellant was a
principal if it was convinced appellant had been charged as a principal.
Alternatively, a reasonable jury could have interpreted the instruction as a
direction to find appellant was a principal if he was charged as a principal, unless
appellant proved the contrary. (Sandstrom v. Montana (1979) 442 U.S. 510, 517.)
Respondent contends ''there was no improper burden-shifting on the gun­
use charge because 'there is no reasonable likelihood that the jury misconstrued or
misapplied' the modified CALJIC No. 17.19 instruction." (RB at p. 193.)
Respondent presents a litany of selected portions of jury instructions (RB at pp.
70