YJW Analysis: An Examination of the DA’s Gang Case Against Topete

“Norteño gangs” were the first words that Deputy DA Garrett Hamilton uttered in the opening statement for the prosecution – that was no accident, as Defense Attorney Hayes Gable noted in his closing arguments.

And yet, as we have seen countless times, the paucity of the evidence was not enough to overcome the simple case that the prosecutor could make – Marco Topete was clearly a gang member at some time, he had gang tattoos, he wore red, he may have been involved in a “gang” shooting in Woodland right before the fatal event, and therefore he killed Deputy Diaz not in an effort to flee prosecution for his other crimes of that night, but for the benefit of the Norteño Criminal Street Gang.

As Alex Clark wrote back in August and demonstrated with his analysis of gang laws, for gang enhancements to apply, “Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was ‘committed for the benefit of … a criminal street gang’ within the meaning of section 186.22(b)(1).”

Mr. Topete was charged under 186.22(a), which is known as the stand-alone gang charge, as opposed to 186.22(b) which is the “gang enhancement.”

Penal Code 186.22(a) reads: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang…”

In the case against Marco Topete, there were two specific gang charges.  First, there is the charge in count 5 which argues that Mr. Topete committed these crimes as an active participant in a criminal street gang.  And then there is the special circumstance charge that argues that, not only was he an active participant, but the murder was committed for the express purpose of furthering the activities of the criminal street gang.

Mr. Gable attacked the basis of these charges by demonstrating that there was no evidence of any criminal street gang activity during Mr. Topete’s 15 months between his release on parole and the shooting on June 15, 2008.

This is not a small factor, because Parole Officer Modesto was involved in monitoring Mr. Topete throughout his parole.  He had plenty of problems with Mr. Topete and, in fact, the defense cited his persistence on the residential issue as a source of stress which potentially could have put Mr. Topete back into prison.

Yet, there was no evidence uncovered during those 15 months on parole that Mr. Topete was associating with gang members or was engaging in gang activity. In fact, there was only one incident where he was even suspected of criminal activity and was arrested, but they ended up releasing him, finding no evidence of wrongdoing.

The problem with gang cases, in general, is it allows, under the guise of gang expertise, the prosecution to admit into evidence information that is generally considered inadmissible hearsay.

This is made worse by the fact that the gang expert in this case, Woodland Police Corporal Ron Cordova, was an admitted friend of the slain deputy, a fact that in most other professions would have recused him from taking part in the investigation or testifying as a gang expert.

Mr. Gable sought to discredit Mr. Cordova’s testimony by pointing this out.  He asked the jury how much credibility he would have if he had brought in Mr. Topete’s brother, if his brother were a psychiatrist, to testify about Mr. Topete’s mental state.

Not only did Mr. Cordova have a conflict in this case, but his testimony and opinions had huge holes in them.

Mr. Gable would argue that Mr. Cordova formed his opinions about Mr. Topete first, and then sought out evidence to back up his opinions.

Remember that in order for 186.22(a) to apply there must be “active participation” in a criminal street gang.

What evidence did Mr. Cordova present about Mr. Topete’s gang activities?  There is overwhelming evidence that Mr. Topete was an active gang member in the 1990s, as we saw photos from that time period showing him with gang tattoos, and hanging out with known gang members.

There was evidence that in prison he was an active gang member.  There is evidence that since this arrest he has been an active gang member.  But as most would recognize, trying to draw a parallel between gang activities in prison and on the street is not as clean as law enforcement would like it to be.  There are realities in prison that breed gang activity that simply do not exist out on the street.

What should have been critical was evidence of, between the time that Mr. Topete was released from prison and the time he was incarcerated for the shooting of Deputy Diaz, what gang activities he took part in.

There was, according to Mr. Gable, no witness who came forward to describe a single gang act in those 15 months on parole.

Mr. Gable argued that the sources upon which Mr. Cordova based his opinion were never identified. He said that the defense brought its sources in and put them on the stand, which allowed the prosecution to cross-examine and the jury to assess their credibility.

He asked, where were the prosecution’s witnesses that witnessed Mr. Topete active in gang activities during his time out of prison?

Gang experts are allowed to state an opinion about the individual’s status in a gang with no concrete supporting evidence.  This is one of the things that makes gang laws so pernicious.

Moreover, they can bring in extraneous details that have nothing to do with the case at hand.

For instance, the prosecution argued that gang members shoot police officers to gain respect.

To further that opinion, Mr. Crodova would cite a number of cases in which gang members shot police officers.

Leave aside the fact that there is a logical flaw in this processing, which somehow would assume because other gang members killed police officers for respect and for the purposes of furthering their prestige in their gang, therefore Mr. Topete must have.  Leave aside the fact that under most conditions this would be unsupportable speculation by the witness.

Expert witnesses in gang cases are allowed to draw these broad conclusions.

But Mr. Gable, unlike many, attacked the basis for this conclusion.  He argued that, actually, none of the crimes cited by Corporal Cordova were gang-related.  Gang members had, in fact, shot and killed cops, but none of the ones he cited were charged with gang crimes.

But that does not matter – he can do that under the law.

Mr. Cordova even argued that he could not ever foresee a circumstance where a gang member would shoot a police officer for reasons that were not gang-related.  And yet, he proceeded to cite several cases where the DA did not deem the shootings to be gang-related.

But it gets worse.  The prosecution, from the start, argued that Mr. Topete was not just any gang member.  Iinstead, he was a leader, a shot caller.

In his expert opinion, Mr. Cordova would argue that Marco Topete would be perceived by the Woodland gang as a highly-respected individual on the street, that he would be in authority and would give permission for gang members to commit acts of violence.

But what evidence is there that this actually occurred?

According to Mr. Gable, none of this was actually shown through the admission of evidence.  There was no evidence, in fact, to back it up.  Mr. Cordova could only rely on his “training and experience,” in testifying as a gang expert.

Mr. Gable pointed out that Mr. Cordova had failed to record any names or specific evidence.  Everything was implication or opinion, based on training and experience.

Mr. Gable argued flatly that Mr. Cordova’s opinions were based merely on rumor and innuendo.

And yet, under present gang law, that is entirely permissible.

Mr. Gable acknowledged that the prosecution had furnished evidence of Mr. Topete’s gang affiliation, both from his younger days as well as his days in prison.  But, in order to have perpetrated the act for the purpose of benefiting the criminal street gang, this charge requires that he be an active gang member.  His decades-old tattoos and pictures from the mid 1990s do not reach that point.

There are really two pieces of evidence that might indicate that he was an active gang member.

The first is, of course, wearing the red shirt and the shorts with red highlights.  Mr. Gable tried to dismiss that, suggesting he wore that all day regardless of his activities.  That’s probably a bit thin, but then again, what evidence is there that the choice of color is anything other than a coincidence?

It was a red jersey and he was wearing athletic shorts.  Hard to know.

The other piece of evidence is the shooting in Woodland.  The prosecution claims that Mr. Topete was involved in a gang-related shooting in Woodland just prior to his encounter at the gas station with Deputy Diaz.

The prosecution cites the fact that shell casings linked to that shooting were found in the car.  But, while some people apparently saw someone who looked like Topete at the scene of the shooting, the defense pointed out that the person at that residence, contrary to claims by the prosecution, was not a validated gang member and no one testified to witnessing Mr. Topete at the scene or seeing him fire the gun.

With few details available, it is difficult to know if Mr. Topete was actually involved in that incident or even if it was indeed gang-related, as the prosecution claims.  Some people will say, as they found the shell casings in his car, therefore he must have fired the weapon.  If that is true, and the prosecutors knew that to be true, why did they not charge him in that shooting?  They charged him with everything else.

Obviously, they did not have enough evidence to charge him with the shooting in Woodland, despite the argument made by Mr. Hamilton that once Deputy Diaz saw Mr. Topete there with the shotgun, Mr. Topete knew his life on the outside was over.  If they had him linked to the Woodland shooting they would have charged him, just as they charged him with the other crimes that surrounded the shooting, such as a felon in possession of a firearm, and child endangerment.  Child endangerment is a misdemeanor charge.  They charged him with a misdemeanor in a death penalty case – obviously the charges that he fired the weapon in Woodland could not be substantiated, or they would have charged him.

One thing that I do find interesting is the defense’s claims from earlier that Norteño culture looks down on committing acts of violence in the presence of children, and that did not make it into the closing statement.

This was a big thing earlier in the trial.

During cross-examination of Mr. Cordova, Mr. Gable asked to what extent having a child in the car would impact Mr. Topete’s standing as a gang member, given that gangs tend to frown upon crimes that involve children.

Corporal Cordova would testify that it would not be a factor.

Now, what is interesting is that when Deputy DA Hamilton asked Mr. Cordova how he knew this – outside of the presence of the jury – he showed evidence of phone calls, recordings and letters where Marco Topete would ask “someone to stand up for him” even though the child was being involved.

To me, that undermined the prosecution’s case.   What is suggested is that having the child involved did harm Mr. Topete’s gang standing, he probably knew that it would, and he would have to make amends and get himself back into good standing.

Again in my view, that’s evidence that the crime was not gang-related.

Mr. Cordova would present evidence that Mr. Topete was in good standing with the gang in 2010.  But that misses the crucial time frame where Mr. Topete may have had to make amends for the involvement of his child in his crime.

In the end, the jury found enough evidence that Mr. Topete had been a gang member at some time to find him guilty of both the gang charges and special circumstances.

I think, when you add up all the evidence, the gang charges are the weak link in the chain.  Moreover, the law has allowed gang experts free rein to introduce a lot of evidence with very little basis.

They get away with it due to case law handed down by conservative and pro-law enforcement judges, and even by liberal legislators afraid to be seen as soft on crime, using gang members as scapegoats who evidently are not entailed to full due process of law. Also, they get away with it because of jurors who see someone who clearly was a gang member at one point in time, jurors who are selected for their pro-death penalty views (remember, potential jurors must be “death-qualified” in the selection process), which automatically makes them more conservative and more pro-law enforcement.

The bottom line is that the jury was never going to look into the nuances of the gang charges and distinguish Mr. Topete’s 15 months out of prison from the decade or more he has been in custody.

In the end, I suppose, from the standpoint of Mr. Topete, it does not matter.  But the DA will now be able to use this case, to bolster his stance about the gang problems in Yolo County, which will help him to secure even more grant money to combat gangs in the future.

—David M. Greenwald reporting