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

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A. Introduction III. THE COURT VIOLATED CONSTITUTIONAL RIGHTS WHEN IT OMITTED ESSENTIAL ELEMENTS FROM THE GANG ENHANCEMENT INSTRUCTION, AND THE ENHANCEMENT MUST THEREFORE BE REVERSED The jury found to be true two sentence enhancement allegations attached to Counts I and II; namely, that appellant had committed the murders for the benefit ofa criminal street gang. (Pen. Code, § 186.22, subd. (b)(1).) In the opening brief, appellant contended these enhancements must be reversed because the trial court mistakenly instructed the jury on the substantive offense of participation in a criminal street gang rather than on the charged sentence enhancement. Respondent acknowledges that the trial court instructed on the substantive offense rather than on the enhancement, but maintains the incorrect instruction "adequately" instructed the jury. (RB at 168-172.) Alternatively, respondent contends evidence of a gang purpose was so overwhelming any instructional error was harmless. (RB at 172-174.) Respondent also argues appellant's federal constitutional claims are barred by his failure to assert them below (RB at 163) and further contends appellant suffered no further prejudice as a result of the court's misinstruction. (RB at 175.) Respondent is wrong on all counts. B. The Jury Was Not "Adequately" Instructed Instead of instructing the jury on the gang enhancement (Pen. Code, § 186.22, subd. (b)(1», the trial court mistakenly instructed on the substantive offense ofparticipation in a criminal street gang. (CALJIC No. 6.50, see AOB at pp.74-75.) 38
As appellant explained in the opening brief, the court's error allowed the jury to find the enhancement to be true without finding the essential elements of the enhancement - viz., that (1) the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang; and (2) the crime was committed with the specific intent to promote, further, or assist in any criminal conduct by gang members. Instead, the jury was able to find the enhancement allegation to be true merely if it found appellant actively participated in a street gang and aided and abetted the commission of a murder or assault with a deadly weapon. (AOB at p. 76.) Respondent agrees the trial court gave the wrong instruction (RB at p. 158 162), and respondent admits that the instruction given did not contain two of the statutory elements of the enhancement. However, respondent contends the given instruction was "adequate" and that the jury received instructions on the missing elements elsewhere. (RB at pp. 168-172.) In doing so, respondent ignores the well-settled recognition on the part of California courts that the elements of the substantive offense and the sentence enhancement are distinct. The substantive offense, for example, requires active and current participation in a criminal street gang while the sentence enhancement does not. (See, e.g., People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; People v. Martinez (2008) 158 Cal.App.4th 1324, 1332; In re Ramon T. (1997) 57 Cal.App.4th 201,207.) On the other hand, under the express terms of the statute in issue, section 186.22, subd. (b)(1), the enhancement has elements not contained in the substantive offense, namely whether the crime was committed in order to benefit the gang and with the specific intent to promote the criminal conduct ofother gang members. These were elements that had to be proven beyond a reasonable doubt, and therefore the jury should have been instructed that it had to find those elements, as well. However, as will be discussed, there was nothing in the instructions given that would have told the jury that it had to find these elements. 39
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 24 and 25: form finding "personal use" to have
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: F. Conclusion In summary, by failin
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
Page 75 and 76: find 'intent to kill'" on the basis
Page 77 and 78: THE COURT'S ERRONEOUS INSTRUCTION A
Page 79 and 80: Robinson's wounds indicated the sho
Page 81 and 82: caused great bodily injury or death
Page 83 and 84: use enhancement, the statutory lang
Page 85 and 86: 192-193), but fails to explain how
Page 87 and 88: Then we have the words "personal us
Page 89 and 90: trial and had therefore forfeited t
Page 91 and 92: merits of appellant's claim. (AOB a
Page 93 and 94: jury trial. (People v. Gottman (197
Page 95 and 96: Respondent argues that another theo
Page 97 and 98: needs to rely on the penalty verdic
Page 99 and 100: may not cross-examine a witness upo
Page 101 and 102: itself to appellant would be improp
Page 103 and 104:
B. The Court Erred In Refusing The
Page 105 and 106:
egarding the intent ofthe non-shoot
Page 107 and 108:
B. Respondent's Arguments Are Mispl
Page 109 and 110:
ut is only being allowed for use ag
Page 111 and 112:
x THE TRIAL COURT ERRED IN PERMITTI
Page 113 and 114:
XI THE PROSECUTOR'S MISCONDUCT IN A
Page 115 and 116:
"guarantee." Appellant is not proce
Page 117 and 118:
v. Berryman (1993) 6 Ca1.4th 1048,
Page 119 and 120:
Contreras. Viewed in this context,
Page 122 and 123:
overwhelmingly showed that only one
Page 124 and 125:
XII GUILT AND PENALTY PHASE VERDICT
Page 126 and 127:
Where Juror No. 2211 is concerned,
Page 128 and 129:
The jury in Cruz was given a versio
Page 130 and 131:
PENALTY PHASE ISSUES XIV THE TRIAL
Page 132 and 133:
B. The Flaw In Respondent's Content
Page 134 and 135:
participation ofall jurors. Contrar
Page 136 and 137:
confuse[d]" (Harris) is no more tha
Page 138:
It is submitted that these instruct
Page 141 and 142:
inherent power to review an issue i
Page 143 and 144:
prospective jurors who were found t
Page 145 and 146:
(Id at p. 821.) This court has char
Page 147 and 148:
church. (18RT 4448:4-6,4451:11-14.)
Page 149 and 150:
(18RT 4450:12-14) or her mother (18
Page 151 and 152:
had in fact reached an impasse at t
Page 153 and 154:
There is an impasse. It is hung. Bu
Page 155 and 156:
establishes, for example, that, whe
Page 157 and 158:
and Code of Civil Procedure 233, wh
Page 159 and 160:
a demonstrable reality. The court a
Page 161 and 162:
CERTIFICATE OF WORD COUNT Rule 8.63
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Appellant, William Satele, Reply Brief - California Courts - State of ...

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