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

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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. 42
Furthennore, it is well established that arguments of counsel cannot replace or supersede instructions from the trial court. (Carter v. Kentucky (1981) 450 U.S. 288, 304; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 586 Arabian, J., concurring and dissenting - "Counsel's argument was merely that -- argument- unless and until a ratifying instruction from the trial court dignified it with the force oflaw."; People v. Mathews (1994) 25 Cal.App.4th 89, 99 -"[I]nstruction by the trial court would weigh more than a thousand words from the most eloquent defense counsel.") Therefore, the prosecutor's arguments cannot replace correct jury instructions when it comes to detennining what elements the jury thought that it had to find in order to detennine that the enhancement had been proven. In sum, for the reasons stated herein, the jury was neither correctly nor adequately instructed on the gang enhancement. C. Chapman's Harmless-Error Standard Is the Governing Standard of Review In their respective openmg briefs, both appellants contended that the governing standard ofreview for the challenged instructional error is the harmless error standard announced in Chapman v. California (1967) 386 U.S. 18. (Nunez AOB 132-133, joined by appellant at AOB p. 329.) Chapman analysis compels reversal unless respondent has "prove[d] beyond a reasonable doubt that the error . . . did not contribute to" the jury's verdict. (Id. at p. 24.) Respondent, however, contends the proper standard is the harmless-error standard announced in People v. Watson (1956) 46 Ca1.2d 818, 836. Watson requires reversal if it is "reasonably probable" that the trier of fact would have reached a result more favorable to the defendant but for the error. (Id. at p. 836.) Respondent is wrong; the applicable standard is Chapman. Respondent relies on People v. Sengpadychith (2001) 26 Ca1.4th 316, 158 159, 172-174.) In Sengpadychith, this court concluded that instructional error pertaining to a gang enhancement provision attached to an indeterminate term 43
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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 and 52: F. Conclusion In summary, by failin
Page 53 and 54: As appellant explained in the openi
Page 55: in the manner suggested by responde
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
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ut is only being allowed for use ag
Page 111 and 112:
x THE TRIAL COURT ERRED IN PERMITTI
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XI THE PROSECUTOR'S MISCONDUCT IN A
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"guarantee." Appellant is not proce
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v. Berryman (1993) 6 Ca1.4th 1048,
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Contreras. Viewed in this context,
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overwhelmingly showed that only one
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XII GUILT AND PENALTY PHASE VERDICT
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Where Juror No. 2211 is concerned,
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The jury in Cruz was given a versio
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PENALTY PHASE ISSUES XIV THE TRIAL
Page 132 and 133:
B. The Flaw In Respondent's Content
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participation ofall jurors. Contrar
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confuse[d]" (Harris) is no more tha
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It is submitted that these instruct
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inherent power to review an issue i
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prospective jurors who were found t
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(Id at p. 821.) This court has char
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church. (18RT 4448:4-6,4451:11-14.)
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(18RT 4450:12-14) or her mother (18
Page 151 and 152:
had in fact reached an impasse at t
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There is an impasse. It is hung. Bu
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establishes, for example, that, whe
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and Code of Civil Procedure 233, wh
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a demonstrable reality. The court a
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CERTIFICATE OF WORD COUNT Rule 8.63
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Appellant, William Satele, Reply Brief - California Courts - State of ...

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