Jury Convicts Topete On All Charges and Special Circumstances, Setting Up Death Penalty Phase

To the surprise of no one, the Yolo County jury charged with deciding the guilt phase of the Marco Topete case came back in less than a day and convicted Mr. Topete on all charges, special circumstances and enhancements.

The defense offered a vigorous defense, arguing that Mr. Topete’s mindset precluded him from acting in a deliberate and premeditated manner.

The prosecution argued that Mr. Topete set the deputy up and murdered him in cold blood.

Next Tuesday the penalty phase begins, when the jury will decide whether Mr. Topete will get life in prison or face execution.

The Vanguard continues its analysis of the closing arguments.  Yesterday, the Vanguard focused on the first round of the closing argument by the prosecution and then the defense’s attempt to dismantle the gang charges – which would prove unsuccessful.

The defense attacked the first degree murder and special circumstances by setting the stage for that day, when Mr. Topete began it with arguments with his stepdaughter, and continued with arguments with his sister and wife.

There was the 911 call made in Davis, complaining about a man who was driving off drunk, with a baby.  He picked up his wife from work, still with the baby in the car, they then had an argument about his drinking and the fact that she found him passed out behind the wheel of the car.  He would eventually throw her out of the vehicle.

The defense disputed accounts of how the gun got into the car.  They argued that no one is sure when or how the gun got into the car.  There were reports that he was seen at a location where there was a firing of the weapon.

The defense claimed 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.

Then Mr. Topete stopped at a gas station to get gas, Officer Diaz happened upon him and Mr. Topete fled.

Mr. Gable argued that none of these actions show that he had a premeditation to find a police officer and shoot him.  He argued he was not out hunting cops, and what happened was not planned.

“Nothing shows he was out hunting police officers that evening,” Mr. Gable would argue. “What really happened here was a set of unrelated circumstances that … ended in this horrible situation that we find ourselves in today.”

The problem with this defense, as Deputy DA Garrett Hamilton would later counter, is that no one claimed that Mr. Topete went out cop hunting, and premeditation can be formed mere minutes before the actual act.

Mr. Hamilton argued that through Mr. Topete’s actions you can see his intent.  Mr. Gable would counter that actions, in fact, do not define intent.  That we need to be able to understand Mr. Topete’s mental state.

He argued that, at best, the supposition that Mr. Topete acted deliberately and premeditatedly is based only on circumstantial evidence.

To counter the prosecution’s claims, he cited jury instructions which said, “A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.”

However, while he cited that portion, he failed to cite the next line, “On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.”

This is where the prosecution’s point about the length of time in the car and the two minutes of time before Mr. Topete shot the deputy, when he had a choice and in fact a chance to flee, did Mr. Topete in.

The lying in wait instruction requires that the defendant concealed his purpose from the person killed, he waited and watched for an opportunity to act, and then “from a position of advantage he intended to and did make a surprise attack on the person killed.”

To counter this, the defense argued that all of this was based on circumstantial evidence, that there was a lack of physical evidence to support key charges that the prosecutor made.

Critically, the prosecution pointed to the animation video, constructed by the prosecution, to illustrate their theory of Mr. Topete’s attack.

However, according to Mr. Gable, witnesses admitted that the lighting conditions were misleading, that they have no idea the order of shots, and in fact, the glass theory is impeached because the glass appeared to fall to the ground before Deputy Diaz was shot, implying that the rear of the vehicle was hit first, before the front of the vehicle.

Moreover, he argued that the single location of the shooter lacks any evidence, and they do not know if Mr. Topete was in motion or stationary.

Mr. Gable described the shooting as a raking motion from the waist, rather than a stable shooting from the shoulder, which he argued shows haste.

Quite simply, according to the defense, they do not know the position of the officer at first shot or the muzzle position, and Mr. Gable called the animation lighting “totally inaccurate.”

He argued that the only visual support by physical evidence is the dash camera – that there is no physical evidence that supported the theory of premeditation.

Mr. Gable then attacked the credibility of the UC Davis psychiatrist, arguing that under cross-examination he had admitted that he did not have enough information to determine the intent of Marco Topete.  The psychiatrist never spoke to Mr. Topete, or any other witnesses for that matter.

Argued Mr. Gable, the prosecution did not want to confuse the doctor with the facts.  The doctor, therefore, did not have enough information to reach his own conclusion regarding Mr. Topete’s actions showing the evidence of a plan.

If Mr. Topete had been thinking clearly, Mr. Gable argued, the last thing he would have wanted to do is what he actually did.  He then suggested he should have hidden his gun and run off.

Mr. Gable then attempted to attack the prosecution’s theory of Mr. Topete’s motivation, arguing that neither the gang theory nor avoidance of the police in fear of returning to prison are accurate.

“I don’t believe that either one of those motives hold water,” he said.

He pointed to the interrogation as strong evidence that Mr. Topete was unaware he had even killed Deputy Diaz until deep into the interrogation.

In fact, he did not even know he had hit him.  At the point of his arrest, he knew his life on the outside was over.  His major concern turned to getting his daughter back to her mother.

He argued that when Mr. Topete found out Deputy Diaz died, he became remorseful.

“You see an almost immediate change in Mr. Topete’s demeanor. He became quiet and remorseful after that,” Mr. Gable said. “As he said, ‘It wasn’t supposed to happen like that.’ “

However, Mr. Hamilton was very easily able to rebut this argument, as he replayed a jailhouse conversation between Mr. Topete and his wife that took place six months after this incident.

In it, he described himself as “f-in’ mad” and he said, “somebody wanted to be an f-in’ hero.”

Whether this was anger and frustration by Mr. Topete, or reflective of his mindset at the time, there is no doubt that this served to undermine any notion that Mr. Topete had somehow accidentally or unintentionally killed Deputy Diaz and suffered from regret.

The defense argument continued, arguing that the evidence does not show premeditation or the deliberate killing of Deputy Diaz.

Mr. Gable argued that a deliberate act requires mature and meaningful reflection – a word that Mr. Hamilton would seize on later and mock.

Finally, Mr. Gable built up the final defense, arguing that the stressors that weighed on Mr. Topete on June 15 finally culminated in a collapse.

According to the defense, Mr. Topete was having difficulty dealing with his life outside of prison, he had nightmares, and was unable to get steady work.  This led to domestic strife and the financial stress of surviving, and living in his crowded parents’ house in Arbuckle with a new baby was too much.

On Father’s Day, Mr. Topete would get into arguments with his wife, his sister, his wife again, as he sought to drown his troubles in alcohol.

The defense argued that his mental disorders – attention-deficit hyperactivity disorder, complex trauma, alcohol addiction and antisocial personality disorder – combined with the stressors to create what the defense expert termed “the perfect storm” – a cumulative effect of all of this left Mr. Topete unable to premeditate or deliberate. Instead, he was acting impulsively.

“[Mr. Topete] decompensated and lost control of his behavior, and suffered an emotional explosion,” Mr. Gable explained.

He argued that this is second degree murder.

But the prosecution would not buy it, and neither would the jury.

Mr. Hamilton countered the defense’s reconstruction of the scene with photos that show it was far from pitch black.  Moreover, Mr. Topete had a clear line of sight on the car, which was not a good deal away, while he was under the cover of darkness. The car had its lights on, and Deputy Diaz easily would have shown up as a silhouette against the white car’s background.

“It was not a loss of control – he’s taking control,” Mr. Hamilton countered.  “He’s on offense, make no mistake.”

He argued that Mr.Topete shot the deputy in the most efficient way.

Mr. Hamilton attacked the credibility of Dr. Tucker, who had come up with the four mental conditions that Mr. Topete suffered.  He argued that Mr. Tucker was paid at least $50,000, a sum he called “astonishing.”

Moreover, Dr. Tucker never listened to the calls or the recordings that would have undermined his claims.  Dr. Tucker acknowledged under cross-examination that the gun would be important to the mental state, but he did not even explore it.  Moreover, Mr. Hamilton argued he ignored completely what he called the “gang mentality.”

Deputy DA Hamilton also debunked, or at least softened, the notion that Mr. Topete suffered some deep trauma.  He said his most recent trauma was a riot, and he was a participant in it.

He mocked the notion of complex trauma and also dismissed alcohol intoxication as a leading cause of the attack.  For one thing, the prosecution rejected the idea that Mr. Topete could have consumed 24 beers in five hours, and yet remarkably no empty bottles or cans were found in his Ford Taurus.  He remained in remarkable control of his vehicle during the chase.

He did not doubt that had been drinking, but finds the idea that he was intoxicated unconvincing.

He said that the idea of a Father’s Day trauma “just falls short.”

He hearkened back to the jailhouse conversation, and said, “That’s no alcohol blackout and that sure isn’t any remorse.”

Finally, he closed by encouraging the jurors to again watch the video. “Listen to the quiet of the night. He owned that night. He used that night to his advantage to kill Deputy Diaz.”

As we reported, the jury will determine, starting next Tuesday, what the punishment should be for Mr. Topete’s crimes.

—David M. Greenwald reporting

Categories: