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

D. The Prosecutor Committed Misconduct By Presenting Factually
Inconsistent Arguments At The GuiltlInnocence And Penalty Phases
Respondent denies that the prosecutor committed misconduct when, at the
guilt phase, he argued "that both appellants were surely involved in the shooting
murder," while at the penalty phase he "point[ed] out to the same jury... that the
evidence tended to show what one particular co-defendant was more likely the
actual 'shooter' or killer." (RB at p 142.)
This is not what happened. It is not true that the prosecutor merely argued
at the guilt phase that both defendants were "involved" in the murders, and then
later argued that appellant was the likely shooter. Rather, at the guilt/innocence
phase that he expressly stated that he did not know and had not proven who fIred
the shots. Later, at the penalty phase he argued that appellant was the shooter.
(14RT 3214, 3222-3223, 17RT 4293-4295) In fact, at the penalty phase he
specifIcally designated the roles of the three people in the car stating that
Caballero was the driver, Nunez the lookout, and appellant the shooter, the three
roles which the prosecution's gang expert, Julie Rodriguez, explained were typical
ofa drive-by shooting.
Thus, the prosecutor changed his position from stating at the guilt phase
that he did not know and had not proven who fIred the shots to stating at the
penalty phase that appellant was the only shooter and Nunez was the lookout.
Contrary to respondent's argument, these are completely inconsistent positions.
Respondent further argues that "the jury in this case was not required to
unanimously agree on which appellant was the "shooter" and which appellant was
the "aider" as long as the jury found each appellant guilty beyond a reasonable
doubt of liability for being a shooter as defIned by the gun-use statute. (RB at p.
143.)
While it is certainly correct that jury was not required to make a fInding at
either stage as to who the shooter had been, that does not give the prosecutor
106