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

appellant has repeatedly said, the defendants could each be liable for that act even
though only one personally committed the act giving rise to the liability. But the
question presented by this issue is not whether there is overwhelming evidence to
find they can both be held liable under the weapons enhancement, as respondent
argues, but rather whether there was a proper finding of actual, personal use on
the part ofboth defendants.
Respondent refers to the testimony of Contreras that both defendants were
hard core gang members who kill people. (RB at p. 111.) However, even
assuming Contreras's improper opinion testimony on this point were true, it is
irrelevant to the question here. While Contreras's opinion may be some evidence
that both defendants are the type of people who might commit murder, it is not
relevant to prove which of the two fired the actual shots on this particular
occasion, which is the issue involved herein.
Respondent again discusses cases holding that a JUry need not reach
unanimous agreement as to the legal theory of the case. (RB pp. 111-113.) As
explained above, respondent again misunderstands appellant's argument. The
error does not stem from the fact that the jury was not unanimous in legal theory.
Rather, the jury reached two separate factual conclusions that are in conflict with
each other and contrary to the evidence introduced, namely that both appellants
actually fired the single rifle used.
In short, without agreeing on which legal theory liability was predicated,
the jury could convict appellant ofmurder. The jury could also impose the firearm
enhancement on both defendants without deciding which one actually fired the
weapon. However, once the jury settled upon one factual theory - Le., that Nunez
was the actual killer-- it could not agree on a second factual theory that was in
conflict with the first factual theory - Le., that appellant was the actual shooter.
Reversal is required.
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