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

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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
192-193), but fails to explain how those instructions in the aggregate make it reasonably unlikely that the jury misconstrued or misapplied the very clear instruction administered by the court that it was required to find appellant was a principal from the fact he had been charged as a principal. Respondent cites to People v. Romero (2008) 44 Cal.4th 386, 415-416 (RB at p. 193), in which this court declined to find burden-shifting in pattern CALJIC instructions Nos. 2.01, 2.02,8.83, 8.83.1, none ofwhich are in issue here. Appellant also contended the instruction allowed the jury to find the personal gun use enhancement to be true because he was a "person charged as a principal in commission ofthe offense" and a gang benefit enhancement had been pled and proved. (AOB at pp. 112-113.) Appellant pointed out that the likelihood the jury might have followed that faulty analytical path was heightened by the prosecution's argument - "Because ofthat gang allegation, they are both liable for that personal use of the gun. So I don't want that word 'personal' to throw you off." (l4RT 3222; AOB at pp. 104-105.) The Attorney General characterizes this reading ofthe modified instruction as "strained." (RB 188.) Respondent makes specific reference to CALJIC No. 3.00 and further contends, "Given all instructions considered as a whole, the jury necessarily found both appellants were actual principals, not simply charged as principals." (RB 188.) The flaw in respondent's argument is that "all instructions considered as a whole," includes the instruction complained of here with its language assigning liability to a person charged as a principal in the commission of the offense. Respondent's argument cuts both ways. Respondent argues the jury appropriately applied CALJIC No. 3.00 in determining liability for the personal weapon use enhancement. But, given the thrust of the prosecutor's argument, the jury is just as likely to have applied the language of the modified instruction in determining principal status for the substantive offense. From this vantage point, it is not possible to know. 71
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TABLE OF CONTENTS APPELLANT WILLIAM
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2. The Pleadings Failed To NotifY A
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VI THE JURy FAILED TO FIND THE DEGR
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C. Standard OfReview And Prejudice
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XIII APPELLANT JOINS IN ALL ISSUES
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Mitchell v. Esparza (2003) 540 U.S.
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People v. Cruz (2001) 93 Cal.App.4t
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People v. Scott (1978) 21 Cal. 3d 2
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CALlIC No. 8.31 passim CALJIC No. 8
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ARGUMENTS GUILT PHASE ISSUES I THE
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the facts indicate that only one de
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form finding "personal use" to have
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57 Cal.AppAth 871, 877; 9 Witkin, C
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the weapon. Without again recountin
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Respondent notes that between the m
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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 and 82: caused great bodily injury or death
Page 83: use enhancement, the statutory lang
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
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participation ofall jurors. Contrar
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confuse[d]" (Harris) is no more tha
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It is submitted that these instruct
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inherent power to review an issue i
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prospective jurors who were found t
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(Id at p. 821.) This court has char
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church. (18RT 4448:4-6,4451:11-14.)
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(18RT 4450:12-14) or her mother (18
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had in fact reached an impasse at t
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There is an impasse. It is hung. Bu
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establishes, for example, that, whe
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and Code of Civil Procedure 233, wh
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a demonstrable reality. The court a
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CERTIFICATE OF WORD COUNT Rule 8.63
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Appellant, William Satele, Reply Brief - California Courts - State of ...

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