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 ...
the facts indicate that only one defendant acted in that role. It is the possibility of inconsistent factual theories that was the evil in In re Sakarias (2005) 35 Ca1.4th 140, and the argument appellant has presented is that the findings that both defendants personally fired the weapon violates the principles discussed in Sakarias. However, in spite of the fact that this is the essence of claim asserted here, respondent does not address Sakarias at all in discussing this issue. (Respondent only discusses Sakarias in a subsequent section of Respondent's Brief dealing with the issue of prosecutorial misconduct. (See RB at pp.142-145.) However, the Sakarias analysis is critical to an understanding ofthis issue. Sakarias held it was contrary to principles of fundamental fairness for the prosecution to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed. (Sakarias, supra, 35 Ca1.4th at pp. 155-156, italics added in RB at pp. 142-143.) Appellant's point is that ifonly one defendant could have committed the act in question the fundamental unfairness ofattributing that act to two defendants is the same whether the prosecution does so in one trial or two. While Sakarias discussed the result in the context oftwo trials, there is no reason in law or policy to limit the principles underlying Sakarias to a two-trial situation. Sakarias is based on the premise that the prosecutor's use of inconsistent factual theories "surely does not inspire public confidence in our criminal justice system." (Id. at p. 159, quoting Thompson v. Calderon (9th Cir. 1997) 120 F.3d 1045, 1072 (dis. opn. of Kozinski, J).) Appellant submits that the foregoing rationale applies with equal force whether the two inconsistent results are obtained in two trials or in one trial as a result ofa poorly worded verdict form. For the foregoing reasons, respondent's contentions are premised on misunderstanding ofthe issue and, accordingly, are flawed. 4
c. Respondent Fails To Understand The Origins Of The Error. In addition to failing to understand nature of the error, respondent has misunderstood how the error occurred. This latter failure is evident from the fact that respondent at no point discusses whether the forms were inaccurately phrased in such a manner that would cause the jury to make a fmding of "personal use" even though the jurors did not really know which defendant actually fired the gun. Penal Code section 12022.53, subdivision (d) allows for the imposition of a sentence enhancement on a defendant who personally uses a gun. Subdivision (e)(l) ofthat section allows for the enhancement to also be imposed vicariously on one who is a principal in the crime ifthat person also violated section 186.22(b)(I) by participating in activity for the benefit of a criminal street gang. Thus, if a defendant violates section 186.22, that defendant is vicariously liable for the 12022.53(d) enhancement if another principal uses a firearm regardless of the defendant's personal use of the weapon. Therefore, under the 186.22 scenario, a jury can find that one of two defendants personally fired a weapon, and that the other defendant is vicariously liable for the first defendant's act. At trial, the prosecution relied solely on this theory of vicarious liability as to the weapon enhancement because it was not proven who personally used the weapon. Indeed, the prosecutor did not argue that both defendants fired the weapon and even conceded that he did not prove appellant fired the weapon, stating that he did not have to prove appellant fired the weapon for the enhancement to be found true. The prosecutor told the jury that because of the gang allegation the jurors should not be "thrown off' by the word "personal." (14RT 3214, 14RT 3222-3223.) In short, the argument of the prosecutor was that the jury did not have to find that a particular defendant personally used the rifle for the enhancement to apply to both defendants. The prosecutor argued that because the enhancement would attach vicariously regardless of which defendant had actually fired the weapon, the allegation had been proven, and the jury should mark the appropriate 5
- Page 2 and 3: TABLE OF CONTENTS APPELLANT WILLIAM
- Page 4 and 5: 2. The Pleadings Failed To NotifY A
- Page 6 and 7: VI THE JURy FAILED TO FIND THE DEGR
- Page 8 and 9: C. Standard OfReview And Prejudice
- Page 10 and 11: XIII APPELLANT JOINS IN ALL ISSUES
- Page 12 and 13: Mitchell v. Esparza (2003) 540 U.S.
- Page 14 and 15: People v. Cruz (2001) 93 Cal.App.4t
- Page 16 and 17: People v. Scott (1978) 21 Cal. 3d 2
- Page 18 and 19: CALlIC No. 8.31 passim CALJIC No. 8
- Page 20 and 21: ARGUMENTS GUILT PHASE ISSUES I THE
- Page 24 and 25: form finding "personal use" to have
- Page 26 and 27: 57 Cal.AppAth 871, 877; 9 Witkin, C
- Page 28 and 29: the weapon. Without again recountin
- Page 30 and 31: Respondent notes that between the m
- Page 32 and 33: In another apparent attempt to just
- Page 34 and 35: appellant has repeatedly said, the
- Page 37 and 38: not present them to the trial court
- Page 39 and 40: In People v. Knighten (1980) 105 Ca
- Page 41 and 42: Finally, it must be noted that the
- Page 43 and 44: B. The Constitutional Issues Are No
- Page 45 and 46: turn relied on the language from Wi
- Page 47 and 48: Indeed, in this case the instructio
- Page 49 and 50: as the prosecution's first-degree t
- Page 51 and 52: F. Conclusion In summary, by failin
- Page 53 and 54: As appellant explained in the openi
- Page 55 and 56: in the manner suggested by responde
- Page 57 and 58: Furthennore, it is well established
- Page 59 and 60: Appellant has explained above and i
- Page 61 and 62: Cal.App.3d 970, 992.) Instead, resp
- Page 63 and 64: 3. Appellant's Did Not Forfeit His
- Page 65 and 66: In Argument V of the Opening Brief,
- Page 67 and 68: IV IN FAILING TO REDACT PORTIONS OF
- Page 69 and 70: People v. Barraza (1979) 23 Ca1.3d
- Page 71 and 72: have been unreasonable for the jury
c. Respondent Fails To Understand The Origins Of The Error.<br />
In addition to failing to understand nature <strong>of</strong> the error, respondent has<br />
misunderstood how the error occurred. This latter failure is evident from the fact<br />
that respondent at no point discusses whether the forms were inaccurately phrased<br />
in such a manner that would cause the jury to make a fmding <strong>of</strong> "personal use"<br />
even though the jurors did not really know which defendant actually fired the gun.<br />
Penal Code section 12022.53, subdivision (d) allows for the imposition <strong>of</strong> a<br />
sentence enhancement on a defendant who personally uses a gun. Subdivision<br />
(e)(l) <strong>of</strong>that section allows for the enhancement to also be imposed vicariously on<br />
one who is a principal in the crime ifthat person also violated section 186.22(b)(I)<br />
by participating in activity for the benefit <strong>of</strong> a criminal street gang. Thus, if a<br />
defendant violates section 186.22, that defendant is vicariously liable for the<br />
12022.53(d) enhancement if another principal uses a firearm regardless <strong>of</strong> the<br />
defendant's personal use <strong>of</strong> the weapon. Therefore, under the 186.22 scenario, a<br />
jury can find that one <strong>of</strong> two defendants personally fired a weapon, and that the<br />
other defendant is vicariously liable for the first defendant's act.<br />
At trial, the prosecution relied solely on this theory <strong>of</strong> vicarious liability as<br />
to the weapon enhancement because it was not proven who personally used the<br />
weapon. Indeed, the prosecutor did not argue that both defendants fired the<br />
weapon and even conceded that he did not prove appellant fired the weapon,<br />
stating that he did not have to prove appellant fired the weapon for the<br />
enhancement to be found true. The prosecutor told the jury that because <strong>of</strong> the<br />
gang allegation the jurors should not be "thrown <strong>of</strong>f' by the word "personal."<br />
(14RT 3214, 14RT 3222-3223.)<br />
In short, the argument <strong>of</strong> the prosecutor was that the jury did not have to<br />
find that a particular defendant personally used the rifle for the enhancement to<br />
apply to both defendants. The prosecutor argued that because the enhancement<br />
would attach vicariously regardless <strong>of</strong> which defendant had actually fired the<br />
weapon, the allegation had been proven, and the jury should mark the appropriate<br />
5
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