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

In another attempt to excuse the jury from expressly finding the degree of
the offense, respondent notes that the guilt phase jury made a specific finding that
appellants committed the murders with the "specific intent" to "promote, further or
assist" their gang. (RB at p. 95.) This is simply not relevant to the question ofthe
degree of offense. The gang allegation could attach equally to first or second
degree murder. Therefore the ''true'' finding on the gang allegation does not
indicate that the jury believed this offense was in the first degree.
Finally respondent argues that the jury was presented with three distinct
theories of first degree murder. (RB at p. 96.) However, it is not known which, if
any, theory the jury adopted. The fact that three theories of first degree murder
were argued is not a substitute for a finding ofdegree by the jury.
Respondent attempts to argue that there was no prejudice because "[t]he
jury expressly found appellants guilty of 'first degree' murder on counts 1-2.
(38CT 10941-10944.)" (RB at p. 97.) This supposed "finding" appeared on the
penalty phase verdict form and thus was not "found" until the end of the penalty
phase, after the guilt verdicts had been rendered. There are two flaws with this
contention. First, if the jury must fmd the degree of the offense, and not merely
the facts supporting that degree, as this court always held prior to San Nicolas,
then the failure to do so rendered the offenses to be second degree murder as a
matter of law at the time of the verdicts at the guilt/innocence phase of the trial.
From that moment on, the court lacked jurisdiction to even hold a penalty phase
trial, and any subsequent "findings" ofthe penalty phase trial were a nullity. (See
AOB at pp. 123-127.)
Second, the language of the penalty phase verdict form states, "having
found the defendant ... guilty of first degree murder." This is not a "finding" by
the jury, but an incorrect statement of supposed fact on the verdict form, which
was not prepared by the jury at all. The insertion of this language in the verdict
form was the result of the Deputy District Attorney's interpretation of the earlier
verdict and his addition of a fact that the jury did not find. Indeed, if respondent
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