Judge Hears Motions on Gangs and Death Penalty Application in Topete Murder Trial

Yolo-Count-Court-Room-600Prosecution Attempts to Reinstate Gang Charges while Defense Attempts to Get the Death Penalty Precluded –

After more than two and a half years since the arrest of Marco Topete, accused of killing Sheriff’s Deputy Tony Diaz, the trial is about to go forward in the next couple of weeks.  This week marked the first of several hearings on motions in limine that will help to define the trial.

Recently Judge Paul Richardson threw out the gang charges against Mr. Topete, however, the DA is arguing that the Judge should reconsider the gang charges because the case that apparently was the judge’s sole authority for striking them is being heard by the Supreme Court.

The court has not invalidated that decision and it has not ruled on that decision, and yet the DA’s Office is attempting to use the mere fact it is being heard by the Supreme Court as a rationale to reinstate the gang charges.

Judge Richardson has not ruled on this or several other relatively interesting motions.  He did rule on some more routine ones and ones that both sides agreed to.  For instance, in light of the history in this case, the court will not allow law enforcement who are observers, as opposed to working as court personnel, to sit in the courtroom in uniform.  They must wear civilian clothes. 

The court will also not permit people to wear buttons or other likenesses of the victim’s image or appearance in the court room.  These are prohibitions both the defense and prosecution were agreeable to.

In general, spouses cannot be compelled to testify against their spouse in trial.  However, in this case the people argue, due to the child endangerment charge, that they should be allowed to call Angelique Topete as a witness against her husband.  It would appear, though, to be only for the limited purposes of that particular charge.

The defense attorneys Hayes Gable and Thomas Purtell argue that the exceptions to the marital privileges are not applicable in this case because, “Under the circumstances present in this case, any alleged violation of section 273a, subdivision (a) is not a crime against the person of Mr. Topete’s child because Mr. Topete did not commit a violent act on his child, attempt to commit a violent act on his child, use force or fear against his child, or restrict his child’s personal liberty.”

Judge Richardson ruled that he is not issuing a blanket order regarding Ms. Topete, however he did rule that there were exceptions to the spousal privilege in the evidence code and the general immunity does not apply in cases dealing with endangering a child’s well being.

Most of the bigger questions still remain.  The prosecution moved for the reinstatement of the fifth count, violation of Penal Code section 186.22(a), which is the stand-alone gang charge.

The prosecution, led by DA Jeff Reisig and Supervising Deputy DA Garrett Hamilton argued, “Because courts are legally precluded from hearing a 2nd 995 motion unless there is a substantial change in the law, this court must have relied upon the case then cited by the defense, People v. Rodriguez (2010) 188 Cal.App.4th 722, as supplying such a change.”

They go on to reason, “However, on January 12, 2011, the California Supreme Court granted review on the Rodriguez case. Thus, the opinion is no longer good/citable law and this court’s prior ruling on the defendant’s 2nd 995 must now be set aside and Count 5 should be reinstated.”

They conclude that the court has to reverse course and vacate its dismissal order arguing, “To do otherwise, would allow defective law to govern the outcome of a serious felony charge in this capital case involving the murder of a peace officer.”

Judge Richardson is deferring on that issue until they come back in two weeks.

He is also deferring on the motion by the defense to bifurcate gang special circumstance allegations and limit or exclude gang expert testimony.  While the court threw out the charge of 186.22(a), it left in place Special Circumstance C, the gang special circumstance.

In doing so, the Court went on to cite the fact that Mr. Topete was found wearing gang clothing and that he was associating with Benito Fuentes, a known gang member, prior to the inciden,t as evidence that the incident may have been gang-related.

As the Court explained that “[w]hile this evidence may ultimately not prevail at trial before a jury on this charge of whether or not there is a true finding on the special circumstance, this is not the standard to apply in a motion to dismiss.”

Given that, the defense argued the need to bifurcate the charges based on “the potential prejudicial effect of admission of evidence that the defendant has suffered the alleged prior conviction.”

Part of the problem is that gang offenses are based in part on offered “predicate offenses” which “need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual guilt.”

In this case, they argue, “there is a substantial danger of prejudice, requiring that the gang special circumstance be bifurcated from the determination of guilt on the first degree murder charge and the other allegations in this case. Like a prior conviction, gang evidence is highly prejudicial and inflammatory.”

They go on to argue, “Mr. Topete has been indicted for a number of charges that have nothing to do with the gang special circumstance. He has been indicted for the special circumstance for murder of a peace officer, the special circumstance for murder committed to avoid and prevent lawful arrest, the special circumstance of lying in wait, various firearm offenses, evading a police officer with reckless driving, abusing or endangering the health of a child, and a number of case enhancements based on his prior convictions. The gang evidence in this case has little, if any, relevance to any of these crimes.”

DA Reisig and DDA Hamilton countered, “The People disagree with the defendant’s claim that gang evidence in this case is irrelevant to the other charges in this case. A jury in this case is going to be deliberating on his guilt for the premeditated murder of Deputy Diaz.”

They add that evidence from the video dash camera of the deputy’s vehicle shows that there “was no valid reason for Topete to stay there and murder Deputy Diaz in cold blood. He could see that Deputy Diaz was facing and shining his lights in the opposite direction.”

Furthermore they argue that Detective Ron Cordova, their gang expert, “will testify in the trial, that the Nortenos criminal street gang in particular is known for violence against police officers. This will be highly relevant and probative evidence to help the jury understand why Marco Topete would stay at a location rather than flee, and murder a deputy sheriff in cold blood when he could have simply run away.”

Finally Judge Richardson needs to rule on a motion to exclude the death penalty, based on the excessive delay in California’s administration of the death penalty, that constitutes cruel and unusual punishment.

The defense argued, “The excessive delays in California’s death penalty system constitute cruel and unusual punishment in violation of the Eighth Amendment and results in a denial of due process. Based on this violation, the Defense respectfully requests that this Court preclude the People from seeking the death penalty in this case.”

They cite that, “Since the death penalty was reestablished in California [in 1977], 13 offenders have been executed.”  And they added that a recent report by the California Commission on the Fair Administration of Justice on California’s death penalty agreed with former California Chief Justice Ronald M. George that “California’s death penalty system is dysfunctional.”

“The time between judgment and execution in California is more than any other state,” they wrote.  “California has more people on death row than any other state.”

Legally speaking they argued, “In recent years, members of the United States Supreme Court have observed that the excessive delay in administering the death penalty may constitute cruel and unusual punishment in violation of the Eighth Amendment. In a memorandum respecting the denial of certiorari, Justice Stevens stated that a petitioner’s claim that executing a person who has already spent 17 years on death row violates the Eighth Amendment was not without foundation.”

“The defendant’ motion is premature, or as they say in constitutional law, not “ripe” yet,” the DA responded. “Marco Topete is the defendant in the pretrial phase of a capital murder prosecution. To date he has been convicted of nothing in this case. Should he be convicted of murder with at least one special circumstance, the People intend to seek a death sentence.”

They cite a case where “the court rejected a claim by the appellant that a more than 20 year delay in his execution violated the state and federal constitutions. In that case the court addressed the Lackey decision of the United States Supreme Court that is cited in the defendant’s motion. In that decision, at page 404, the court held that the normal post-conviction review process was not grounds for finding that the constitution had been violated.”

These and other matters will be taken up on February 28, as Judge Richardson will review the arguments and rule accordingly.  The trial is set to finally begin on March 7.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Roger Rabbit

    What a surprise, DA Reisig and Hamilton, hopefully they will follow the rules and the law to prevent the case from being overturned later.

    The Death Penalty was not sought for a cop killer in San Francisco and that DA is now the CA Attorney General. For the money and the automatic appeals and the wear and tear on the family, life without parole would give closure and maybe allow this case to be plead out and ended. Of course then Reisig could not get his name in the headlines and get his bullet statements about how he went after the death penalty for a cop killer.

    It would be nice to know if the family was consulted and given the facts about the difference between LWOP (life without parole) and the death penalty. Many defense attorney’s will advise their client to plea guilty to take the death penalty off the table, saving the publicity for the family, tax money, court time and stopping all the appeals.

    A truly honest DA would make the victim’s family aware of this and explain the pros and cons to this option. Then again, Reisig does not do this for the victims, he does it for his own glory.

    When you have taped evidence, there is little doubt that the suspect is guilty, the only question should be is – what does the victim’s family want – not what the DA wants.

  2. JustSaying

    Interesting, but pretty complicated and technical, report on capital punishment in California. I think we can depend on Judge Richardson to appropriately deal with these issues of law in Mr. Topete’s case.

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