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

needs to rely on the penalty verdict for the finding of degree, that is a tacit
admission that the first verdict was not adequate, and therefore any subsequent
proceedings were null and void. (See AOB at pp. 123-127.)
In may be true, as respondent notes, that "[s]ection 1157 does not include
any language demanding that a capital jury make a "degree" finding before
penalty phase commencement." (RB at p. at p. 97.) However, while that section
does not require a finding of degree at the penalty phase, it does require that the
jury "must find the degree of the crime" at the time the verdict is rendered. (Pen.
Code, § 1157.)
Finally, respondent argues that "in capital cases where there is no separate
first degree fmding at the guilt phase, but there is a specific fmding on the verdict
form that is tantamount to a finding of first degree murder ...a defendant suffers no
prejudice under section 1157 when the jury expressly fmds at a penalty phase that
the killing was "first degree" murder." (RB at p. 101.) This is nothing more than a
restatement of the holding of San Nicolas, which appellant has acknowledged.
Respondent once again does not address any of the flaws in San Nicolas set forth
above. Appellant submits that based on the previous arguments San Nicolas should
be overruled.
As appellant has explained, San Nicolas ignores the plain words of the
statute that the jury must find the degree. It allows for an alternative finding as
satisfactory in spite of the fact that an express fmding of the degree of the offense
had been a requirement from People v. Travers (1887) 73 Cal. 580 until San
Nicolas.
Conclusion
In summary, appellant urges this court to reconsider People v. San Nicolas
in light ofthe foregoing arguments and to conclude that the jury's failure to "find
the degree of the crime" rendered the crimes of which appellants were convicted
to be murders ofthe second degree.
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