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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Then we have the words "personal use." I told you, I don't<br />
know how long ago it was now I've been going on, that I did not<br />
prove to you which <strong>of</strong>the two defendants personally used a gun. So<br />
you're going to say, "I'm going to find that allegation not true,<br />
because Mr. Millington [the prosecutor] did not prove who<br />
personally shot the gun." But if you look in that instruction, I think<br />
it's 17.19, there's a paragraph that is important. It's towards the<br />
bottom. What it says is that gang members are vicariously liable.<br />
They are all liable for that personal use if that gun has been<br />
intentionally discharged and proximately caused death and there is a<br />
gang allegation that has been pled and proven.<br />
I've told you I pled and proved that, because I proved that<br />
Dominic Martinez, Ruben Figueroa - we had Julie Rodriguez. So<br />
that gang allegation is proven.<br />
Because <strong>of</strong> that gang allegation, they are both liable for that<br />
personal use <strong>of</strong> the gun. So I don't want that word "personal" to<br />
throw you <strong>of</strong>f. When you go back there and it says, "We, the jury,<br />
find the allegation that the defendants personally, intentionally used<br />
a firearm ..." dab, dab, dab, ''to be true or not true," please circle the<br />
true. The reason being is because the law says that they are both<br />
liable ifit's a gang allegation proven.<br />
(14RT 3222-3223; AOB 57-58.)<br />
In short, and contrary to respondent's representation, the prosecutor<br />
expressly told the jury that they could find both defendants liable for the<br />
"personal" use <strong>of</strong> the gun because both were proved to be gang members. The<br />
prosecutor never informed the jurors that they could find both defendants<br />
vicariously liable ifboth were found to be principals.<br />
Respondent also argues that because the evidence was "overwhelming,"<br />
"the wording <strong>of</strong> the verdict forms was immaterial since the verdicts unmistakably<br />
signaled the jury's intention to find both appellants liable for the gun use." (RB at<br />
p. 190.) This is a curious argument to make about the weight <strong>of</strong> the evidence in<br />
this case in which the trial prosecutor repeatedly conceded he had failed to prove<br />
the identity <strong>of</strong> the shooter. Respondent's related contention that the incorrect<br />
wording <strong>of</strong> the verdict forms is immaterial because the jury's findings reveal the<br />
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