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

THE JURY FAILED TO FIND THE DEGREE OF THE
CRIMES CHARGED IN COUNTS ONE AND TWO, AND
BY OPERATION OF PENAL CODE SECTION 1157, BOTH
OF THE MURDERS OF WHICH APPELLANTS WERE
CONVICTED ARE THEREFORE OF THE SECOND DEGREE,
FOR WHICH NEITHERTHE DEATH PENALTY
NOR LIFE WITHOUT PAROLE MAY BE IMPOSED
VI
When a crime is divided into degrees, upon the failure of a jury to find the
degree ofthe crime, Penal Code section 1157 mandates that the crime is deemed to
be ofthe lesser degree. The failure ofthe jury in this case to designate "the degree"
of the crime requires a reversal of the conviction for first degree murder and the
consequences which flow from a conviction for that degree ofmurder, namely, the
death penalty and/or life in prison with the possibility ofparole.
A. This court Should Reconsider The Holding OfPeople v. San Nicolas (2004)
34 Cal.4th 614
In disputing the argument presented by appellant in his Opening Brief,
respondent argues that the instant case is indistinguishable from San Nicolas, a fact
which appellant originally recognized in his opening brief. (RB at p. 93, AOB at p.
118.) The problem with the respondent's argument is that appellant presented
numerous reasons why this court should reconsider San Nicolas, and respondent has
not addressed any ofthose arguments other than to urge this court to rely on a recent
precedent which reversed a long history of strict adherence to the letter of section
1157. Briefly, the reasons for overruling San Nicolas included the following:
. The jury is empowered to fmd a lesser degree of guilt than the facts
or the instructions establish. This stems from the power inherent in the jury
of fmding the defendant guilty of a lesser degree ofthe offense than that
shown by the uncontradicted evidence, an essential element ofthe right to a
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