Appellant, William Satele, Reply Brief - California Courts - State of ...
Appellant, William Satele, Reply Brief - California Courts - State of ...
Appellant, William Satele, Reply Brief - California Courts - State of ...
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XII<br />
GUILT AND PENALTY PHASE VERDICTS WERE RENDERED<br />
AGAINST APPELLANT BY A JURY OF FEWER THAN TWELVE<br />
SWORN JURORS, AND THE RESULTING STRUCTURAL TRIAL<br />
DEFECT REQUIRES REVERSAL<br />
<strong>Appellant</strong> contended in the opening brief that the trial court's failure to<br />
swear all <strong>of</strong>the jurors (specifically Jurors 4965, 8971, 2211) as required by Code<br />
<strong>of</strong> Civil Procedure section 232, subdivision (b), resulted in a structural trial defect<br />
requiring reversal <strong>of</strong>guilt and penalty phase verdicts. (AOB at pp. 209-226.)<br />
Respondent contends (1) appellant's constitutional claims were not<br />
preserved by objection or other action below; (2) Jurors 4965, 8971, 2211 took an<br />
adequate "trial juror" oath; and (3) appellant was not prejudiced by the omission.<br />
(RB at p. 79-90.) Respondent is wrong on all counts.<br />
A. <strong>Appellant</strong>'s Claims Are Cognizable On Appeal<br />
Respondent first claims that appellant's constitutional claims are<br />
procedurally barred. (RB at pp. 84-85.)<br />
Under the principles discussed more fully above (ante, at pp. 21-27), this<br />
issue is not waived. These principles include the fact that an appellate court has<br />
inherent power to review an issue in spite <strong>of</strong> a party's failure to perfectly phrase<br />
that issue; the fact that there is an exception to the waiver rule regarding issues<br />
relating to the deprivation <strong>of</strong> fundamental, constitutional rights; and the fact that<br />
there is an exception to the waiver rule that provides that an objection may be<br />
excused when the issue involved is a pure question <strong>of</strong> law. Finally, because,<br />
whether the waiver rule is to be applied is largely a question <strong>of</strong> the appellate<br />
court's discretion, this court should address the constitutional aspects <strong>of</strong>this issue.<br />
110