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

It is submitted that these instructions do not take the place ofthe instruction
in Cain. Cain involved an instruction that informed the jury that after an alternate
was seated it had to begin its deliberations anew and had to set aside all past
deliberations. (Id. at pp. 64-65.)
Lingering doubt, mercy instructions, and sympathy instructions have
nothing to do with these principles, and therefore giving these instructions did not
cure any harm by the failure to properly instruct the jury to begin deliberations
anew.
Finally, respondent relies on what respondent labels as "the overwhelming"
nature ofthe guilt phase evidence.
There are two problems with this contention. First, assuming arguendo that
there was overwhelming evidence at the guilt phase, this does not excuse an error
in instructions in the penalty phase. (RB at p. 230.) The penalty phase verdict
must rely on evidence and instructions from the penalty phase, not on
overwhelming evidence of guilt. The question for the penalty phase jury was,
given the fact that the defendants had been proven guilty, what penalty should be
imposed?
The volume of evidence as to guilt is not relevant to the penalty
determination. This follows from the following hypothetical: If six witnesses
testified that appellant was in the car from which the bullets were fired, rather than
one witness testifying as to that fact, there would be greater evidence of guilt.
However, having been seen by six witnesses rather than one does not increase his
culpability, the crux ofthe penalty phase determination. This is because the decision
to impose the death, unlike the guilt determination, is "inherently moral and normative,
not factual." (People v. Hawthorne (1992) 4 Cal.4th 43, 79 Therefore, it does not
depend on the volume ofevidence.
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