Judge Admonishes Topete Defense Attorneys to Produce Discovery and Witnesses

Recently, Judge Paul Richardson had thrown out the gang charges against Mr. Topete. However, the DA argued 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.

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.” A Penal Code 995 motion is essentially a request for the Judge to dismiss one or more of the counts of the complaint, following a preliminary hearing or grand jury indictment.

The prosecution concludes 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 sided with the prosecution here, and ruled that since the Supreme Court has taken up the Rodriguez case, the controlling authority on this issue, he will reinstate in the fifth count, the 186.22(a) charge against Mr. Topete.

The day for the defense got worse after this.  Judge Richardson expressed concern about the lack of disclosure of witnesses by the defense.  There was also concern about the lack of discovery

Defense Attorney Thomas Purtell argued that they would have a possible witness list by this Friday, but as of now they do not have any expert reports, so they have given the prosecution what they have, which is nothing.  They said when and if they get them, they will provide them.

Supervising Deputy District Attorney Garrett Hamilton argued that in the spring of last year, Dr. Haney, who was supposed to be the lynchpin expert in the defense’s case, had been injured and that required the court to postpone the trial to accommodate Dr. Haney.

He does not understand how he could be the lynchpin one moment, but there is still no report from him.

The defense said he would be an expert they would use in the penalty phase.

Mr. Hamilton continued that it confounds him that they have no witness list, no expert reports, and thus no idea what these experts and other witnesses would say.  He requested the court to get from the defense specific directions.

Hayes Gable responded, that it sounded like Garrett Hamilton was calling them liars and “I don’t think I really like it.”

Judge Richardson reiterated that he was troubled by the fact that this is nothing less than a month away from the beginning of testimony.  He has jurors coming in next week and no witness list to hand them to see if they have conflicts and prior knowledge of the witnesses.

He called the lack of discovery inappropriate, and said that it flies in the face of the defense counsel’s experience.

He understands the lack of specificity, but not the lack of even general information.

Mr. Purtell responded that he cannot give what he does not have.

Garrett Hamilton pointed out that this would likely cause delays, as they have to to send investigators out to find out what the witnesses were going to say and he warned that he would object to any witness that they have not had a chance to find out what they will testify to.

This does make one wonder if it this is tactical, or an example of incompetence on the part of the defense team.  It is probably too early to assess, but perhaps this is a delay tactic.

Judge Richardson ordered them to provide discovery and a witness list by this Friday.  He said that they can disclose that there is not anything to disclose, but they have to discover, or turn over to the prosecution, what they have.

There are two more key issues that arose on Monday that give us insight into what the prosecution’s case will start to look like.

The defense moved to bifurcate the gang special circumstance from the rest of the trial.  The problem, of course, is that this almost became moot when Judge Richardson reinstated the fifth count, the stand-lone gang charge, since that no longer was an enhancement and rather a core charge.

Aside from that point, the People led by Garrett Hamilton argued the centrality of the gang issue to the motive.

In their response to the motion they argued, “A jury in this case is going to be deliberating on his guilt for the premeditated murder of Deputy Diaz. At the time of this murder, it is evident from the video dash camera of Deputy Diaz’ car, Deputy Diaz had no idea where Marco Topete was located. In fact he put out over the radio that he thought the driver had fled south into a field, and was facing in that direction, almost 180 degrees away from Topete. 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.”

They add, “Furthermore, Detective Ron Cordova testified in the grand jury[RT pages 199-200] and 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.  Mr. Topete’s gang affiliation will be highly relevant on this crucial charge, the murder being the main part of this case.”

In the court on Monday, Mr. Hamilton argued that Marco Topete went from a street banger to a state prison gang member.  He spent eight years at Pelican Bay and became a notable member of the Northern Structure Gang.

He argued that he was a huge fish on the street, a notable leader who was revered.  When Deputy Diaz pulled him over following a shooting that he was involved in, he was in possession of a weapon, he had to know that this was not simply a car stop.

He likened Deputy Diaz to a fisherman who was catching a whale and that this explains why there was such a violent response.

Judge Richardson would deny the motion to bifurcate the gang charges.  It is interesting that the DA’s Office is ascribing a gang-related motivation for the shooting, rather than perhaps the more obvious one that he fled the scene and eventually killed Deputy Diaz because he was facing a third strike anyway, and he had nothing to lose.

Mr. Topete’s previous strikes, dating back to the early 1990s, were weapons-related and violent strikes.  Garrett Hamilton did argue that facing the third strike was part of the motive and that they needed to bring that issue into play.

The defense countered that there is not even evidence that Mr. Topete knew he was facing a third strike.

Mr. Hamilton responded that they have the burden to show motivation and that this plays into the motive.  He felt that while it would be prejudicial to the jury to learn the specific prior charges, that this could be dealt with in a special instruction to the jury that would deal with this along with sanitizing the facts of the case so that the jury would not have to know about the prior shootings, only that he had prior convictions and this could relate to a motive.

The defense argued that the Judge should bifurcate unless non-disclosure would impair the prosecution of this case and he argued that given the facts of this case, that would not so burden the prosecution.

Judge Richardson ruled that the prosecution had the right to bring in motive and intent to explain behavior.  He would sanitize mentions of the previous offenses, but allow the prosecution to bring them up.

—David M. Greenwald reporting