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

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passengers, and all three fled. Obviously, respondent would not argue that this showed that the unknown passenger was the shooter or had the intent to kill Robinson and Fuller. Either the inference applies to all three occupants ofthe car or it applies to none ofthem. Thus, the inference cannot be drawn as to appellant. In a further attempt to bolster the contention that appellant had the intent to kill, respondent notes that "[u]nlike Nunez, who gave alibi testimony Nunez [sic] exercised his constitutional right by refusing to testify in his defense.,,7 Appellant assumes respondent intended the second "Nunez" to refer to appellant, but even so, respondent's point eludes appellant. The mere fact that Nunez testified and presented an alibi defense while appellant did not is obviously irrelevant to prove Nunez was not the shooter, nor does appellant's exercise of his right to remain silent provide a basis for the jury to "necessarily" find that appellant was the shooter. Indeed, in spite of Nunez's alibi testimony, respondent continues to maintain that the jury necessarily found intent to kill on the part of Nunez. The conflict in respondent's positions speaks volumes regarding the irrelevancy ofthis argument in establishing evidence ofintent to kill. The remaining facts recited by respondent are presented by respondent to demonstrate that the jury necessarily found that Nunez was the actual shooter and had the intent to kill. Because this relates primarily to Nunez, appellant will not analyze those facts in detail. However, it should be noted that a similar analysis would apply, namely, even if the jury could have inferred intent to kill from the evidence cited by respondent, but the jury would not necessarily have to infer intent to kill from this evidence. c. The Error Was Not Harmless Respondent contends that the error in glvmg an unredacted form of CALJIC 8.80.1 was harmless because the jury "presumably knew that it had to 7For clarity, it should be noted that Nunez did testify, but appellant did not. 60
find 'intent to kill'" on the basis ofother instructions. (RB at p. 181.) Respondent is wrong for several reasons. First of all, respondent's position contradicts well-established California law. This court has frequently held that, on appeal, a jury must be presumed to have followed the instructions it was given. (People v. Prince (2007) 40 Ca1.4th 1179, 1295; People v. Bennett (2009) 45 Ca1.4 th 577, 596; People v. Hamilton (2009) 45 Ca1.4 th 863, 957.). However, respondent's argument rests upon the contrary assumption: namely, that the jury did not follow its instructions. Nothing in CALnC No. 8.80.1 suggested that the jury should look to other instructions for additional elements not listed in that instruction. Indeed, had the jury gone outside 8.80.1 and imported into that instruction elements from other instructions, as respondent contends it must have done, the jury would have clearly violated its oath to follow the instructions it was given by the court. Likewise, as noted above (ante, at p. 42), Evidence Code section 664 creates a presumption that an official duty has been properly performed, and this presumption applies to the jury's performance ofits duties. Consequently, respondent's position thus has no legal merit and is flatly contrary to the well-established law ofthis state. Furthermore, this argument is pure speculation, as there is no evidence to suggest the jury looked to any other instructions as an aid to interpreting CALnC No. 8.80.1. Likewise, none of the specific instructions mentioned by respondent this do, in fact, provide instructions on this missing element of intent to kill. For example, respondent notes that the jury was given instructions pursuant to CALnC No. 8.22 where the jury was told that a killing by armor-piercing ammunition is first degree murder. (RB at p. 181, 37CT 10768.) However, this instruction allows for a conviction of first degree murder without a finding of intent to kill and thus does nothing to support respondent's position. 61
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TABLE OF CONTENTS APPELLANT WILLIAM
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2. The Pleadings Failed To NotifY A
Page 6 and 7:
VI THE JURy FAILED TO FIND THE DEGR
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C. Standard OfReview And Prejudice
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XIII APPELLANT JOINS IN ALL ISSUES
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Mitchell v. Esparza (2003) 540 U.S.
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People v. Cruz (2001) 93 Cal.App.4t
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People v. Scott (1978) 21 Cal. 3d 2
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CALlIC No. 8.31 passim CALJIC No. 8
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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 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: shot Fuller and Robinson, and that
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
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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
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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
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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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