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

57 Cal.AppAth 871, 877; 9 Witkin, California Procedure (4th ed. 1997), Appeal,
§ 399,451-452.)
In his argument to the jury at the guilt/innocence phase, after discussing
principles relating to aiding and abetting, the prosecutor argued that both
defendants were guilty, and that it did not matter who the actual shooter was. The
prosecutor acknowledged, "I will be the first to tell you that I did not prove to you
who the actual shooter was." (14RT 3210-3211.) Later, he reiterated this
statement, saying"
... again, I'm the first to tell you I didn't prove who the actual
shooter was, if you don't know who the actual shooter was - that
jury instruction says the person that aided and abetted, you must also
find they intended to kill .
So, although I didn't show who the actual shooter was, all
three intended to kill while they were in that car...."
(14RT 3214.)
In short, at the guilt/innocence stage the prosecutor did not rely on the
theory that both defendants had fired the shots, or that he had proven who actually
fired the shots. The theory that appellant was the actual shooter was never
presented to the jury as a matter of a tactical choice of the Deputy District
Attorney. Therefore, the jury did not have to decide whether appellant was the
shooter.
Indeed, even respondent's current arguments regarding the speed with
which the bullets were fired is a departure from the prosecution's position at trial.
Although respondent now argues it is speculation to conclude that the bullets were
fired in a briefperiod oftime (RB at p. 116), at trial the prosecutor argued that the
four bullet wounds "could [have] happen[ed] in less than a second." (14RT 3240.)
The rule that a party may not change theories on appeal is so well
established that as long ago as 1933 this court referred to it as "well-settled."
Thus, in the venerable case of Ernst v. Searle (1933) 218 Cal. 233 this court
stated:
8