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 ...
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 6
conceded as to appellant he had not proven who the shooter was. (l4RT 3210 3211.) Therefore, it is clear that the jury found the personal use allegation to be true not because they believed appellant fIred the shot, but because this was the only option presented to them. A recap of the evidence and an examination of respondent's analysis ofthat evidence will further demonstrate that this conclusion is the only logical one. D. The Evidence Overwhelmingly Establishes The Fact That Only One Person Fired The Gun. The People now argue that it was not "factually impossible" for both defendants to have been the actual shooters. (RB at p. 114.) There are three problems with this contention: 1) because the theory that both defendants were actual shooters was not a theory that the prosecutor presented or relied on when the issue was to be resolved, respondent is introducing a new theory of the crime on appeal and should be barred from doing so; 2) from the evidence introduced at trial, it is highly improbable that more than one defendant fIred the weapon; 3) the distinction between "factually impossible" and "highly improbable" is legally meaningless and "not factually impossible" is not a proper standard under the Eighth Amendment guarantee ofheightened reliability in death penalty cases. 1. Respondent Should Be Estopped From Presenting The Argument That Both Appellant And Nunez Were The Actual Shooters Respondent's contention that both defendants actually fIred the rifle violates an established rule of appellate procedure that requires when the parties have proceeded on one theory in the trial court, neither party "can change this theory for purposes ofreview on appea1." (Jones v. Dutra Construction Co. (1997) 7
- 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 22 and 23: the facts indicate that only one de
- 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
- Page 73 and 74: shot Fuller and Robinson, and that
conceded as to appellant he had not proven who the shooter was. (l4RT 3210<br />
3211.)<br />
Therefore, it is clear that the jury found the personal use allegation to be<br />
true not because they believed appellant fIred the shot, but because this was the<br />
only option presented to them. A recap <strong>of</strong> the evidence and an examination <strong>of</strong><br />
respondent's analysis <strong>of</strong>that evidence will further demonstrate that this conclusion<br />
is the only logical one.<br />
D. The Evidence Overwhelmingly Establishes The Fact That Only One<br />
Person Fired The Gun.<br />
The People now argue that it was not "factually impossible" for both<br />
defendants to have been the actual shooters. (RB at p. 114.) There are three<br />
problems with this contention: 1) because the theory that both defendants were<br />
actual shooters was not a theory that the prosecutor presented or relied on when<br />
the issue was to be resolved, respondent is introducing a new theory <strong>of</strong> the crime<br />
on appeal and should be barred from doing so; 2) from the evidence introduced at<br />
trial, it is highly improbable that more than one defendant fIred the weapon; 3) the<br />
distinction between "factually impossible" and "highly improbable" is legally<br />
meaningless and "not factually impossible" is not a proper standard under the<br />
Eighth Amendment guarantee <strong>of</strong>heightened reliability in death penalty cases.<br />
1. Respondent Should Be Estopped From Presenting The Argument That<br />
Both <strong>Appellant</strong> And Nunez Were The Actual Shooters<br />
Respondent's contention that both defendants actually fIred the rifle<br />
violates an established rule <strong>of</strong> appellate procedure that requires when the parties<br />
have proceeded on one theory in the trial court, neither party "can change this<br />
theory for purposes <strong>of</strong>review on appea1." (Jones v. Dutra Construction Co. (1997)<br />
7
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