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

prejudicing Nunez's defense by pinpointing to the jury proof of Nunez's
consciousness of guilt." (RB at pp. 207-208.) However, it is cold comfort to
appellant that the court permitted its concern that Nunez might be prejudiced to
prejudice appellant instead. What respondent and the trial court fail to realize is
that this evidence was admissible only because it related to Nunez's consciousness
of guilt. There is nothing wrong with pinpointing evidence to its proper use. The
trial court must either neutralize potential prejudice to appellant that arises because
ofthe joint trial or it must grant separate trials.
Ironically, had Nunez been tried alone, the jury would have been instructed
with these pinpoint instructions and they would have only applied to Nunez. By
consolidating the trial, Nunez received a benefit in that the form of the pinpoint
instruction which should have been applicable only to him was diluted, while
appellant received a detriment in the form of an instruction that permitted the jury
to use against him evidence that should not have applied to him at all.
As explained in Appellant's Opening Brief (AOB at pp. 186-187), the
danger of jury confusion in this case arises from the inherent dangers in
conspiracy cases that the acts of one defendant may be attributed to the other.
This is even more so in gang cases where gang members are claimed to be acting
for the benefit ofthe gang, and the lines of individual responsibility are so blurred
as to create the danger that innocent or less culpable defendants will be found
guilty simply because oftheir association with others.
In summary, the evidence giving rise to CALJIC Nos. 2.04 and 2.05 only
related to Nunez. Therefore, the jury should have been informed of the fact that
they could only consider that evidence as to Nunez, and the failure to so inform
the jury greatly prejudiced appellant. Reversal is required.
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