Defense Strategy: Topete Suffers From Mental Disorders and “Lost Control”

One of the big questions coming into this trial was how would the defense defend a case in which there was virtually no doubt that the defendant shot and killed Deputy Tony Diaz.

That strategy by the defense has become clearer now.  A defense expert will be allowed to testify that Mr. Topete’s mental disorders caused him to “acutely decompensate” and also “lose control over his behavior.”

However, efforts by the defense to get the expert to testify that Mr. Topete “snapped,” or that he otherwise lacked premeditation, failed.

The defense argued that, while the law makes it clear that experts cannot testify that Mr. Topete’s intoxication “negated his capacity to form the requisite mental state, the defense is certainly entitled to present evidence through experts on the issue of whether or not Mr. Topete actually formed the required intent.”

They thus argued that alcohol consumption is admissible as to whether the defendant “actually formed a required specific intent” and therefore whether the murder was “premeditated, deliberated, or harbored express malice aforethought.”

The defense argues that, in order for a jury to convict an individual of first degree murder, they have the burden to prove that such a killig was in fact “willful, deliberate, and premeditated.”

However, the prosecution can always allege that it was a first degree murder through a felony murder theory, whereby a homicide committed during the act of committing a felony is held to be murder.  The problem is that conclusion will not allow them to get to the special circumstances needed for the death penalty.

Lead Defense Attorney Hayes Gable, in a 30-minute opening statement, argued that Mr. Topete suffers from a number of mental disorders and he “lost control” on the night in which he shot and killed Deputy Diaz.

Unfortunately for Mr. Topete, it looked at times that Mr. Gable was grasping at thin reeds in hopes of finding something tangible that would convince the jury to choose life in prison, rather than the death penalty.

Mr. Gable argued that psychiatric experts would testify that Mr. Topete suffers from alcoholic dependency, attention deficit hyperactivity disorder, post-traumatic stress disorder and anti-social disorder.

Mr. Topete was described as a broken man.  He had gotten out of prison and wanted to change his life with his pregnant wife.  He was unable to hold jobs and eventually unable to live in the home in Davis that was costing the couple $1500 a month in rent.

The defense vividly described his trauma and turmoil, waking in the middle of the night screaming.

In the afternoon, his wife, Angelique Topete, testified that Mr. Topete was “very jumpy” after being released from prison.  He did not like loud noises.  He had nightmares and would wake up with breathing difficulties.

She testified that these nightmares occurred almost every night and they left him sleep-deprived and irritable.

Mr. Topete was forced to rely on his wife’s income, and there were points when they had no income. For instance, Angelique had a problem receiving her maternity leave from her job at Lowe’s, because they said she had been pregnant before she began working there and therefore did not qualify for maternity leave benefits.

They struggled financially, borrowing money from Mr. Topete’s mother to survive.

According to Mr. Gable, all of this wore on Mr. Topete. The combination of alcohol problems and arguments with relatives contributed to the ultimate breakdown for Mr. Topete when, heavily intoxicated, he would lose control over his behavior during his encounter with Deputy Diaz.

“The defense is confident that when you apply the law to the case you will find that Mr. Topete did not act with premeditation or deliberation, nor did he lie in wait for Deputy Diaz,” Mr. Gable told the jury.

The prosecution has attempted to paint Mr. Topete as a brazen gang member, eager to put in work to impress gang leaders in prison.  They argued he lay in wait for Deputy Diaz, setting him up and killing him in cold blood.

In contrast, the defense painted Mr. Topete as a troubled soul, angry and out of place in the world, unable to provide for his family and turning to alcohol in violation of his parole.

Mr. Gable would call the shooting “a terrible tragedy that had nothing to do with gangs.”

Mrs. Topete would testify that on the day in question, Mr. Topete was supposed to spend the day, Father’s Day, with the couple’s young child.  Instead, he spent time with his cousins, drinking and betting on horse racing.

As she had testified earlier in the trial, when he came to pick her up, she found him slumped over the wheel and passed out.

The prosecution has attempted to counter this testimony with an expert who testified that Mr. Topete could have had a blood alcohol level as high as .20, but would not have been able to lead the Deputy on a high speed chase with that high a consumption of alcohol.

The prosecution has made the gang ties the centerpiece of the case.  In the prosecution’s opening, Garrett Hamilton, Deputy District Attorney, began with the words “Norteño Gangs” and described in vivid details Mr. Topete’s gang affiliations in prison.  Mr. Hamilton attempted to portray Mr. Topete as a gang leader who was out to kill a cop as a way to boost his reputation on the street

The defense’s account argued that Mr. Topete’s act “had nothing to do with gangs at all.”

Instead, they describe Mr. Topete as drunk and troubled.

Mrs. Topete would describe their marriage and financial problems.  She testified that she had threatened to leave him due to the fact that she believed he was cheating on her.

She would testify that they had no physical fights, from the arguments that she and Mr. Topete had regarding their finances or his drinking.

She testified that, despite these troubles, she was not aware that he was making money in illegal ways while he was out on parole.

The prosecution tried to portray Mr. Topete as receiving calls at night from girls wanting to buy drugs, but Mrs. Topete said, “No, I said girls would call at night.”

While Mrs. Topete said that she never saw anything illegal that Mr. Topete did while out on parole, she suspected something was wrong.

“I believed he was doing things he shouldn’t,” she said.

—David M. Greenwald reporting