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

is accordingly quite possible that a properly instructed jury might have rejected
premeditation and deliberation elements and concluded that a second degree
murder verdict best encompassed the circumstances of the crime. Consequently,
the court erred in not instructing the jury with CALJIC No. 8.31.
E. The Error Was Not Harmless
Respondent contends that the failure to give CALJIC 8.31 to the jury was
harmless for several reasons. Respondent is wrong.
In support ofthis contention, respondent claims that the "evidence of intent
to kill was 'overwhelming[.]'" (RB at p. 155.) This is simply not true; to the
contrary, the shooter's intent and the intent of the non-shooter remain a mystery
even now. Admittedly, there was ample evidence that either appellant or Nunez
fired the fatal shots. However, the evidence of intent of the non-shooter-- and
even the shooter himself-- was ambiguous at best. Neither defendant testified, and
there was no evidence of what conversation took place in the car prior to the
shooting. There was also no evidence of any prior relationship between the
defendants and the victims, and thus no basis from which to speculate as to a
motive. The mere fact that one occupant of a car suddenly fires a rifle at total
strangers on the street is not "overwhelming" evidence of intent to kill on the part
ofthe other occupants or even the shooter.
While the jury could have found intent to kill, the evidence equally
supports a finding that the actions were a spur-of-the-moment offense, committed
rashly and immediately upon seeing two targets ofopportunity.
Thus, while the jury may find the requisite intent, the evidence is subject to
multiple inferences and is not overwhelming.
Because the evidence is subject to differing inferences, the jury must be
instructed as to any crimes that may fall within that range of interpretations, and
this includes second degree murder.
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