The next chapter of the murder trial of Marco Topete begins Thursday.
Judge Paul Richardson decides later this week whether Topete, 39, should be sentenced to death for the June 15, 2008 murder of Yolo County Sheriff’s Deputy Tony Diaz. The hearing is also scheduled for Friday.
Topete’s three-month trial began in August and he was convicted of first-degree murder in October.
Before the jury could give its penalty verdict in November, Richardson excused Juror No. 11 for her “insufficient command of the English language.”
After an alternate juror was selected, the jury recommended Nov. 16 that Topete should receive the death penalty for Diaz’s murder.
Richardson can follow the jury’s recommendation or he can give Topete the lesser sentence of life in prison without the possibility of parole.
Topete’s defense attorneys, Hayes Gable III and Dwight Samuel, filed a motion Dec. 29 for his sentence to be reduced to life in prison without the possibility of parole, which prosecutors oppose.
The same day, defense counsel also filed a motion for a new trial, which is based on another juror’s declaration to a defense investigator Dec. 12.
Juror No. 6 said it wasn’t a language barrier that prevented Juror No. 11 from making a decision on Topete’s penalty. Rather, the excused juror wanted to vote for life in prison.
But in the prosecution’s response last Thursday, Deputy District Attorney Garrett Hamilton said Juror No. 6’s declaration was “not
signed under penalty of perjury.”
Even if it were signed, “such evidence is inadmissible because it invades the sanctity of the decision-making process,” he said.
Hamilton argued the court found “good cause” to excuse Juror No. 11.
The defense motion states, “Now, unless the court grants the new penalty phase trial on the ground it erred in dismissing Juror No. 11, an entire new guilt phase is mandated.”
But Hamilton responded, “Difficulty experienced in one phase of trial does not mean difficulty … in both phases of trial.”
If Richardson sentences Topete to death and does not grant the defense a new trial, defense attorneys could appeal the ruling.