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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sentence enhancement allegations. (Blakely v. Washington, supra, 542 U.S. at pp.<br />
301-302; Apprendi v. New Jersey, supra, 530 U.S. at pp. 476, 490.) (AOB 77.)<br />
Respondent argues these contentions lack merit. (RB at pp. 163-165.)<br />
Once again, respondent is wrong.<br />
2. The Pleadings Failed To Notify <strong>Appellant</strong> He Would Have To Defend<br />
Against The Substantive Offense OfParticipation In A Criminal Street Gang<br />
<strong>Appellant</strong> contended in the opening briefthat he was deprived <strong>of</strong>his rights<br />
under the Fifth, Sixth, and Fourteenth Amendments because he was found under<br />
the instructions given to have committed the substantive <strong>of</strong>fense <strong>of</strong>participation in<br />
a criminal street gang, an <strong>of</strong>fense with which he had not been charged. Because<br />
the pleadings failed to give him notice he would have to defend against the<br />
substantive <strong>of</strong>fense, appellant argued the instructional error constituted structural<br />
error warranting reversal <strong>of</strong>the enhancement. (Nunez AOB at pp. 135-138, AOB<br />
at p. 329; Jackson v. Virginia (1979) 443 U.S. 307, 314; Gautt v. Lewis (9th Cir.<br />
2007) 489 F3d 993.)<br />
Respondent again has no response to appellant's contention that as a result<br />
<strong>of</strong> the gang participation instructions given his jury he was found liable for an<br />
<strong>of</strong>fense <strong>of</strong>which he was never given notice. Instead, respondent merely points out<br />
that the pleadings alleged section 186.22, subdivision (b)(1), enhancements and<br />
the jury returned true findings to the same-numbered enhancements. (RB at p.<br />
163.) However, respondent never addresses the gist <strong>of</strong> appellant's contention that<br />
the instructions given his jury required that he defend against the substantive<br />
<strong>of</strong>fense <strong>of</strong> gang participation. Because the pleadings failed to notify him <strong>of</strong> that<br />
charge, he was deprived <strong>of</strong> his rights under the Fifth, Sixth, and Fourteenth<br />
Amendments and reversal <strong>of</strong>the enhancement is warranted.<br />
48