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

form finding "personal use" to have been found ''true.''
Under the prosecutor's theory, all that was needed for the section 12022.53,
subdivisions (d) and (e) enhancement to apply was a verdict form permitting the
jury to impose liability if it found that "a" defendant fired the weapon. However,
instead of a form asking whether "a" defendant personally used the weapon, one
form asked the jury if it found that appellant personally used the weapon, and
another form asked the jury if it found that Nunez personally used the weapon.
The jury marked the spaces indicating that each defendant personally used the
weapon.
Thus, the question becomes whether the jury's act in checking the "true"
spaces in the respective verdict forms means they intended to find actual personal
use by both defendants, or whether they instead thought this was what they were
supposed to do if they believed that one of the two defendants had used the
weapon, under the instructions given to them, the arguments made, and the verdict
form provided.
One argument made by the prosecutor at trial sheds particular light on this
question. In the reply to Nunez's motion for a new trial, the prosecutor explained,
"Defense counsel correctly states that there was no evidence [Nunez] was the
shooter" and "I conceded this fact throughout the trial." (39CT 11190, quoted in
RB at p. 106, italics added.)
If, as the prosecution conceded, there was no evidence that Nunez was the
shooter, it necessarily follows that when the jury marked the space making this
"finding" of personal use it was doing so not because it believed that it had been
proven that Nunez actually fired any of the shots, but rather because this was the
only option it had under the vicarious liability instructions and arguments
presented and the verdict form before it.
With respect to firearm use, appellant is in the same position as Nunez. As
will be explained below, the evidence as to the identity of actual shooter was
virtually the same as to both appellant and Nunez, and the prosecutor also
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