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

the instruction that would have required to jury to find the specific intent to
promote the criminal conduct of other gang members. The fact that the jury was
instructed with specific intent for other acts does not mean they would have
assumed that specific intent was required for this allegation. Likewise, CALJIC
NO. 3.01 tells the jury that in order to find liability as an aider and abettor, it had
to find that the person intended to commit the crime. However, one could intend
to commit a crime without intending to benefit a gang. Therefore, none of the
instructions contain any ofthe missing elements ofthe enhancement.
In urging this construction, respondent again fails to explain why a
reasonable juror would depart from the plain language ofthe instruction he or she
was given. Thus, CALJIC No. 6.50 states: "In order to prove this crime, each of
the following elements must be proved:" followed by four itemized elements
pertaining to the substantive crime that fail to prove up the required findings for
the enhancement. Nothing in this instruction suggests that the juror should also
find other missing elements, such as specific intent.
Moreover, respondent also asks this court to rely on aspects of the
prosecutor's argument to the jury to fmd the jury adequately instructed on the
required specific intent and gang benefit, direction, association findings of the
enhancement (RB at pp. 169, 171). Once again, however, respondent offers no
reason why the jury would disobey the court's directive, "You must accept and
follow the law as I state it to you, regardless ofwhether you agree with the law. If
anything concerning the law said by the attorneys in their arguments or at any
other time during the trial conflicts with my instructions on the law, you must
follow my instructions." (CALJIC No. 1.00; 37CT 10709; 14RT 3154.)
In fact, the presumption of an official duty being properly performed
applies to jurors in the performance of their duties. (Evid. Code, § 664; People v.
Cruz (2001) 93 Cal.App.4th 69, 73.) To assume that the jurors violated their oath
to follow the judge's instructions would run afoul of this presumption, although
respondent has offered no evidence or reason to rebut that presumption.
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