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

independent of any request or objection ofthe defendant. Because this duty does
not depend on any request and/or objection from the defendant, it follows, a
fortiori, that the failure to make a more specific objection is not a waiver of the
issue. As also noted above (ante, at p. 29), requiring a specific objection in this
case would have the de facto effect of abrogating Penal Code section 1259 which
provides that challenges to jury instructions affecting substantial rights are not
waived even ifno objection is made at trial.
C. The Jury Did Not Necessarily Find That Appellant Was The Actual
Shooter And/Or Had The Intent To Kill
Respondent argues that this claim must fail "if this court agrees with
respondent that the jury necessarily found sufficient evidence to find 'intent to
kill' as to both appellants, regardless of whether they were actual shooters or
accomplices." (RB at p. 178, italics added.) Respondent then recites a long list of
facts from which, respondent believes, this court could conclude (or the jury could
have concluded) that there was sufficient evidence to fmd intent to kill. (RB at pp.
178-180.)
After poring over all of this evidence, respondent states "The foregoing
evidence showed both appellants could have been the shooter. The evidence at
trial plainly established that the shooter intended to kill, based upon the use of
armor piercing bullets, the well-aimed shots, and the gang motive." (RB at p. 180,
italics added.) Thereafter, respondent concludes "In other words, the jury
necessarily found both appellants had the intent to kill the victims, regardless of
who frred the fatal shots." (RB at p. 180, italics added.)
The fallacy of respondent's argument that the jury could have concluded
both appellants fired the shots ignores the overwhelming evidence that only one
defendant fired the rifle. Without repeating that evidence in full, this included
evidence as to the speed with which the bullets were fired and the physical
evidence from the scene ofthe crime. (See ante, at pp. 10-12.) Because it would
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