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 ...
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A. Introduction<br />
III.<br />
THE COURT VIOLATED CONSTITUTIONAL<br />
RIGHTS WHEN IT OMITTED ESSENTIAL<br />
ELEMENTS FROM THE GANG ENHANCEMENT<br />
INSTRUCTION, AND THE ENHANCEMENT<br />
MUST THEREFORE BE REVERSED<br />
The jury found to be true two sentence enhancement allegations attached to<br />
Counts I and II; namely, that appellant had committed the murders for the benefit<br />
<strong>of</strong>a criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) In the opening brief,<br />
appellant contended these enhancements must be reversed because the trial court<br />
mistakenly instructed the jury on the substantive <strong>of</strong>fense <strong>of</strong> participation in a<br />
criminal street gang rather than on the charged sentence enhancement.<br />
Respondent acknowledges that the trial court instructed on the substantive<br />
<strong>of</strong>fense rather than on the enhancement, but maintains the incorrect instruction<br />
"adequately" instructed the jury. (RB at 168-172.) Alternatively, respondent<br />
contends evidence <strong>of</strong> a gang purpose was so overwhelming any instructional error<br />
was harmless. (RB at 172-174.) Respondent also argues appellant's federal<br />
constitutional claims are barred by his failure to assert them below (RB at 163)<br />
and further contends appellant suffered no further prejudice as a result <strong>of</strong> the<br />
court's misinstruction. (RB at 175.) Respondent is wrong on all counts.<br />
B. The Jury Was Not "Adequately" Instructed<br />
Instead <strong>of</strong> instructing the jury on the gang enhancement (Pen. Code, §<br />
186.22, subd. (b)(1», the trial court mistakenly instructed on the substantive<br />
<strong>of</strong>fense <strong>of</strong>participation in a criminal street gang. (CALJIC No. 6.50, see AOB at<br />
pp.74-75.)<br />
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