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

defective instruction that omitted the elements of the enhancement, that finding
must fall. Accordingly, the gang benefit enhancement finding cannot support the
personal firearm use enhancement, which consequently must also be reversed
because it is not supported by substantial evidence. (Jackson v. Virginia (1979)
443 U.S. 307, 319; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v.
Stainer (9th Cir. 1994) 31 F3d 907, 908-909.)
Respondent argues there was no gang benefit instructional error and
therefore no corresponding prejudice requiring reversal of the gun use finding.
(RB at p. 175.) In Argument III of this brief, appellant has explained why
respondent's claim regarding the gang benefit instructional error must fail.
Because that is the case, the gun use enhancements are not sufficiently supported
by evidence the crimes were committed for a gang purpose and the gun use
enhancements must fail.
I. The Instructional Errors Were Not Harmless Beyond A Reasonable Doubt
Respondent presents two pro forma conclusory arguments regarding
prejudice. Specifically, respondent contends that because the evidence was
"overwhelming" that appellant was subject to the gun use enhancement regardless
of who fired the fatal shots, any error was harmless under the standards of either
People v. Watson (1956) 42 Cal.2d 818 or Chapman v. California (1987) 386 U.S.
18. (RB 194-195.)
Alternatively, respondent reiterates its responses to appellant's contention
and argues that, as to the gun use charge, there was no instructional error;
defective verdict forms; improper burden-shifting; improper prosecutorial
argument; or violation of a unanimity duty, and as a result no prejudice and
consequence related to guilt and penalty phase verdicts. (RB 195.)
Appellant respectfully submits that respondent's failure to engage the
prejudice discussion set forth in the opening brief is an implied recognition of the
76