The prosecution continues to attempt to prove gang charges in the Topete trial. Gang expert Ron Cordova, the gang investigator for the Woodland Police Department, testified on Thursday that Mr. Topete was a Norteño gang member the night of Deputy Tony Diaz’s murder.
Deputy DA Garrett Hamilton argued in his opening statement that a gang member who kills a police officer reaches the ultimate level of respect, just as the gang benefits from the fear such an act generates.
One of the more interesting interchanges occurred during the cross-examination. On cross, defense attorney Hayes Gable asked Corporal Cordova whether a gang member having a child in the car, such as Mr. Topete did during that evening, would impact his standing in the gang, since gangs look down upon crimes committed around their children.
Mr. Cordova responded that he did not see it as a factor.
But evidence that was meant to show that it was not a factor seemed to indicate otherwise. Deputy DA Garrett Hamilton, during redirect, asked Mr. Cordova how he knows that the crime occurring in front of his baby did not impact his gang status.
Mr. Gable then objected and asked to speak to the witness outside the presence of the jury.
Corporal Cordova told the court that they had recordings of phone calls and letter where Mr. Topete had asked for “someone to stand up for him” despite the circumstances of a child being present at the commission of the crime.
The prosecution will undoubtedly make the case that this demonstrates that the presence of Mr. Topete’s baby had no impact on his standing in the gang. But to others that might suggest otherwise, such as that the commission of the crime did hurt his standing [when back in jail and] in the gang and that Mr. Topete had to basically talk his way back into good standing.
The prosecution, as we have already written, wants to make this into a case in which Mr. Topete was killing a police officer to achieve gang glory. The first words out of the mouth of Deputy DA Garrett Hamilton during the opening statement were, “Norteño Gangs.”
Mr. Hamilton set up the case that this was a gang murder, a murder about the need for gang members to put in work to get respect. And the ultimate prize in this case being a police officer.
Mr. Hamilton went on to talk about Mr. Topete as a leader among the Northern Structure Prison Gang at Pelican Bay and that he was a big fish going back to Woodland where he would be an influential member returning to the streets.
But the presence of the child could serve to undermine the prosecution’s case here. If it can be shown that the gang culture frowns on such actions – and from the letters and recording that appears to be the case, then it puts in doubt whether this really was an act committed for gang glory.
As we argued previously, the fact that Mr. Topete was a man who on “June 15, 2008 was running out of time,” in terms of achieving compliance for parole officers who told him that he had to find a permanent address and register there, or be taken back into custody.
A third strike would mean 25-to life in prison and Mr. Topete was well aware of that. At the point when he had been contacted by Deputy Tony Diaz, he had already been in violation of parole by drinking and by driving drunk with a child in the car, and he may have had an illegal firearm in the car – in short, he was a desperate man who was going to go to prison for the rest of his life if he were caught.
However, Mr. Cordova argued that it appeared Mr. Topete was in good standing in 2010, when he testified that Mr. Topete was found in the Sacramento County Jail with prison communications called “kites,” which contained detailed history of the Norteño Gang.
Mr. Cordova argued that had Mr. Topete not been in good standing, he “wouldn’t be allowed to possess that.”
But that misses the point that this was two years after he was captured. It does not prove that Mr. Topete was an active gang member at the time of his arrest. What it does show is that, once back in jail and headed for life in prison, Mr. Topete was back involved in prison gang activities.
However, the communications show that he may not have been in good standing at some point, as he appeared to have to beg Norteños in prison to “stand up for him,” even though he appears to have violated critical rules by involving his child in his crime.
Again, that analysis pushes us away from a gang motivation and toward a drunken and desperate motive for killing the deputy, not because he was attempting to create gang glory, but because he was trying to avoid a third and final strike that he knew was coming to him based on his actions earlier that evening. And because he may well have been quite intoxicated, affecting his judgment.
Whatever actions he took, after the fact, to get in good standing with the gang really have little bearing on the motivation of the crime itself. It appears contrary to what the police are arguing here, that Mr. Topete did not bring immediate glory upon himself. If he had, there would have been no need for Mr. Topete to have to ask someone to stand up for him.
—David M. Greenwald reporting
[quote]Again, that analysis pushes us away from a gang motivation[/quote]
We will have to wait until the jury decides if the baby in the car pushes anyone but you away from the gang motivation.
Did Topete have gang related contacts with the police between the time he was released from Pelican Bay and the day he murdered Deputy Diaz?
What happens if a known long time gang member kills someone and says “Oh I quit the gang yesterday”? Does that get rid of the gang motivation?
Did we ever figure out what Topete’s prior prison sentence was for? Was his prior prison sentence gang related? Was he house in the SHU in Pelican Bay?
I am curious about one thing – after he shot the officer why didn’t he jump in the car and drive away? Perhaps he did not know he hit the officer which seems contrary to the notion that he set up a gang motivated ambush. The other possibility is that other officers came on the scene too quickly for the getaway to happen.
Alphonso
I think this is a really good question which could have major implications when considering motive. Another possibility, what if he knew the car was out of gas ? would that not significantly alter the perception of motivation ? David, any information on this ?
DG: [quote]Mr. Cordova argued that had Mr. Topete not been in good standing, he “wouldn’t be allowed to possess that.”
But that misses the point that this was two years after he was captured. It does not prove that Mr. Topete was an active gang member at the time of his arrest. What it does show is that, once back in jail and headed for life in prison, Mr. Topete was back involved in prison gang activities.[/quote]
Grasping for straws…
In light of the commitment for life (por vida) – What evidence do you have that Topete was ever “jumped out?”
…Not grasping for straws at all. It’s actually at the heart of the gang/premeditation issue. There’s evidence only of in-prison gang activity by the defendant. And in prison, being in a gang or resuming gang activity once you’re back in is hardly a choice.
[quote]What happens if a known long time gang member kills someone and says “Oh I quit the gang yesterday”? Does that get rid of the gang motivation? [/quote]
This is also at the heart of the issue. The whole point of this article is that it’s wrong to make the blanket assumption that just because someone is in a gang or was in a gang that we can know their intent in everything that they ever do. Instead you have to look at each incident in particular. The prosecution has been blindly going after the gang issue rather than ground themselves in the facts and now it’s beginning to show.
[quote]Did we ever figure out what Topete’s prior prison sentence was for? Was his prior prison sentence gang related? Was he house in the SHU in Pelican Bay?[/quote]
The answer to this would be useful if we wanted to find a person guilty because of past acts. Assume he was in prison for a bad bad gang thing. Assume he was in the SHU in Pelican. Does that determine what happened in this case? There’s a reason that kind of thing is not allowed in to the trial, though the prosecution has been trying to get things like that to the jury.
“What evidence do you have that Topete was ever “jumped out?” “
You mean other than his wife telling me on the record that he was not associating with gang members or partaking in gang activities to her knowledge, and the lack of evidence that he was an active gang member up until the day of the shooting?
Whether he was or not, his actions seem less consistent with a gang motivation theory and more consistent with a panic at the thought of being put back into prison.
“Did Topete have gang related contacts with the police between the time he was released from Pelican Bay and the day he murdered Deputy Diaz? “
Not to my knowledge. Understand that that would have been a parole violation and he would have been sent back to prison.
“We will have to wait until the jury decides if the baby in the car pushes anyone but you away from the gang motivation. “
I think we know exactly how that will go do along with the rest of the trial. We knew that three years ago frankly.
[quote]You mean other than his wife telling me on the record that he was not associating with gang members or partaking in gang activities to her knowledge, and the lack of evidence that he was an active gang member up until the day of the shooting?[/quote]
David, when you are referring to the “record” you actually mean with you, a blogger, right?
The wife’s purported out-of-court statement to prove the truth of the matter constitutes, what — in a court of law, again?
Moreover, you really don’t mean to say the wife (who allegedly allowed a drunk parolee, who was at that time, actively violating the terms of parole, to drive away with her baby) is omniscient do you?
Again, what evidence does anyone have to prove he was ‘jumped-out’ or relinquished – at any time – his gang status?
…that remains the question…
[quote]And in prison, being in a gang or resuming gang activity once you’re back in is hardly a choice.[/quote]
A choice, is a choice, is a choice…
Anyone in CDCR has the choice to renounce/quit and request PC.
[quote] There’s evidence only of in-prison gang activity by the defendant.[/quote]
Please present it when you are ready.
BTW please include all evidence you have to prove he was NOT active on the outs…
[quote]Not to my knowledge. Understand that that would have been a parole violation and he would have been sent back to prison. [/quote]
Parolees are not always returned to state custody for an alleged violation. They may be returned if parole is revoked, following a hearing.
To Gertrude Stein:
We can debate whether “A choice, is a choice, is a choice…” but that was sort of a tangential comment on my part. But yes I agree with you that anyone can request renounce and request protective custody to then be permanently marked for death.
[quote]
Please present it when you are ready.
BTW please include all evidence you have to prove he was NOT active on the outs… [/quote]
Hasn’t it already been presented? He was in Northern Structure before he was out of prison, and after the deputy’s killing he was found with a kite in prison. I’m assuming just a little bit here, but if there were a gang related police contact with the defendant in the period that he was out of prison, I think the prosecution would have been running and screaming it down the hall ways.
And about proving he was “NOT active,” well that’s not what is to be proved here. In this country, we have a core belief that alleged crimes are not to be assumed. So yes he was in a gang in prison before the incident — yes it looks like he was in a gang in prison after the incident, but whether he was in a gang in the intermediate period is what is to be proves NOT assumed. Do you really not know that?
Aside, the prosecutor in this case, Garret Hamilton, once argued to a jury in his closing statement that since there was no evidence presented to put the defendant anywhere else during the time of the alleged crime, that the defendant therefore must have been at the scene of the crime during that time. I suppose I have to ask you… do you detect anything wrong with that reasoning?
[quote]Aside, the prosecutor in this case, Garret Hamilton, once argued to a jury in his closing statement that since there was no evidence presented to put the defendant anywhere else during the time of the alleged crime, that the defendant therefore must have been at the scene of the crime during that time. I suppose I have to ask you… do you detect anything wrong with that reasoning?[/quote]
Actually this is a perfectly permissible argument. If the defendant does not have an alibi as to his whereabouts at the time of the crime, the jury can infer he could have been at the scene of the crime. Now of course the prosecution would almost certainly have to have some other evidence other than mere absence of alibi to tie the defendant to the crime scene, or there would be reasonable doubt it was the defendant at the scene of the crime…
[quote]So yes he was in a gang in prison before the incident — yes it looks like he was in a gang in prison after the incident, but whether he was in a gang in the intermediate period is what is to be proved NOT assumed. Do [/quote]
Any time you are ready to prove up, that Topete was not a member of a Norteno gang you may do so.
[quote]Any time you are ready to prove up, that Topete was not a member of a Norteno gang you may do so. [/quote]
Let me not do so. Rather, let me just concede that point altogether and skip ahead. Let’s just say that he is a member of the Norteno gang, was a member at the time of the incident and always shall be for the rest of his life.
Then what? Gang membership isn’t against the law. The charge isn’t that he is a member of a criminal gang. It’s that as a member, he committed a crime for the benefit of the gang.
So now we are at the point where, for your sake, we are assuming we have a gang member and we are assuming he committed a bad bad crime. So how do you prove that he did it for the benefit of his gang?
Any time you are ready to prove up, that the gang member did not commit this crime for any reason other than the benefit of a gang, you may do so…
[quote]Actually this is a perfectly permissible argument. If the defendant does not have an alibi as to his whereabouts at the time of the crime, the jury can infer he could have been at the scene of the crime. Now of course the prosecution would almost certainly have to have some other evidence other than mere absence of alibi to tie the defendant to the crime scene, or there would be reasonable doubt it was the defendant at the scene of the crime… [/quote]
Yes, let’s use [i]a lack of[/i] evidence to prove or to help prove something. That’s a good idea and it’s not a contradiction at all — but of course… it’s permissible!
“David, when you are referring to the “record” you actually mean with you, a blogger, right?”
In other words in journalistic parlance, she told it to me for publication and attribution.
“The wife’s purported out-of-court statement to prove the truth of the matter constitutes, what — in a court of law, again?”
You asked what evidence I had, I gave it to you.
“Moreover, you really don’t mean to say the wife (who allegedly allowed a drunk parolee, who was at that time, actively violating the terms of parole, to drive away with her baby) is omniscient do you?”
No one is omniscient to me, but her account purports with other accounts of his behavior that night.
“Again, what evidence does anyone have to prove he was ‘jumped-out’ or relinquished – at any time – his gang status?”
That may be your issue. I don’t hold the same view of gang status. I see a guy who got out of prison on parole. He like many had been a gang member on the streets in his youth and also in prison. That does not mean upon release in his mid 30s, he’s going to continue to be an active gang member. There is really no evidence that he was until the day of the shooting, which is almost a year and a half after his release from prison.
“Parolees are not always returned to state custody for an alleged violation. They may be returned if parole is revoked, following a hearing.”
Given what I have seen people violated for parole on this county, you’ll forgive me if I don’t buy that. If he was hanging out with gang members or engaging in gang activity, he’d have been taken into custody and had his parole revoked like that.
“Any time you are ready to prove up, that Topete was not a member of a Norteno gang you may do so.”
But that misses the point, being a member of the gang is not a crime in and of itself. The question is whether he was active and committed the crime for their benefit (186.22B).
[quote]But that misses the point, being a member of the gang is not a crime in and of itself. The question is whether he was active and committed the crime for their benefit (186.22B).[/quote]
David and the definition of “active” is?
And what is the opposite thereof and can you prove it with credible verifiable evidence?
Let us agree to disagree. My point is that he was/is a member and has never been proven to have been “jumped out.” As some here have tried to establish. Some here have attempted to argue his status, remember?
[quote]Then what? Gang membership isn’t against the law. The charge isn’t that he is a member of a criminal gang. It’s that as a member, he committed a crime for the benefit of the gang. [quote]
I’m not arguing that gang membership is against the law anymore than I would argue that being an addict is against the law.
[quote]You asked what evidence I had, I gave it to you. [/quote]
I’ll help ya – hearsay…
[quote]Given what I have seen people violated for parole on this county, you’ll forgive me if I don’t buy that. If he was hanging out with gang members or engaging in gang activity, he’d have been taken into custody and had his parole revoked like that. [/quote]
David if you are going to write about the issue it would behoove you to be accurate. Let me suggest oyu read up on the two pronged process and the details relative to an alleged violation and a revocation, as well as the role of the PA in the process and the like.