People v. Topete CA1/4 ( 2024 )

Filed 1/30/24 P. v. Topete CA1/4
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A162466
v. (Contra Costa County
CHRISTOVA ANTONIO Super. Ct. No. 51820497)
TOPETE,
Defendant and
Appellant.
Christova Antonio Topete appeals after a jury convicted
him of first degree murder and various firearms offenses and
found true a special allegation that he personally used a firearm
in the commission of the murder. We recently reversed the
conviction of Topete’s trial codefendant, Sam Elliot Nazareta,
because we found the prosecutor had violated Batson-Wheeler by
using a peremptory challenge to dismiss a juror because of the
juror’s race or ethnicity.1 (People v. Nazareta (Dec. 19, 2023,
1 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler
(1978) 22 Cal.3d 258.
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A162377) [nonpub. opn.] (Nazareta).) Topete raises the same
challenge, so we will reverse Topete’s conviction as well.
Our opinion in Nazareta sets forth the relevant background
and explains why reversal is necessary. The parties are already
familiar with that decision, so we will confine our discussion to
the one new argument the Attorney General raises here that we
did not already address in Nazareta.
One reason the prosecutor cited in the trial court for
dismissing A. was that he was “not forthcoming” and “very, very
vague in his answers” to voir dire questions. The trial court did
not rely on this rationale when it denied the Batson-Wheeler
motion (as we pointed out in Nazareta), but the Attorney General
nonetheless cites A.’s exchange with the prosecutor at the end of
her questions to him during voir dire as evidentiary support for
it. After the prosecutor completed her questions about various
legal concepts, she asked A. whether there was anything else in
his background that she needed to know about. He replied,
“Nothing else.” The prosecutor prodded him, “You sure?” A. then
asked, “Are you the only prosecutor?” When the prosecutor said
she was, A. said, “We’re okay.” The prosecutor then asked, “Do I
need to be worried?” and A. said, “No.”
A.’s question to the prosecutor is difficult to fathom and
raises the possibility that he had some unexpressed bias against
others in the prosecutor’s office or cases prosecuted by more than
one attorney. In the abstract, such concerns might have
supported a peremptory challenge, but they are not relevant here
because the prosecutor did not raise them in the trial court. We
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must therefore look only at whether the exchange supports the
prosecutor’s stated rationale that A. was vague or not
forthcoming. (Miller-El v. Dretke (2005) 545 U.S. 231, 252 [“when
illegitimate grounds like race are in issue, a prosecutor simply
has got to state his reasons as best he can and stand or fall on the
plausibility of the reasons he gives. . . . If the stated reason does
not hold up, its pretextual significance does not fade because a
trial judge, or an appeals court, can imagine a reason that might
not have been shown up as false”]; People v. Gutierrez (2017)
2 Cal.5th 1150, 1167 [“When they assess the viability of neutral
reasons advanced to justify a peremptory challenge by a
prosecutor, both a trial court and reviewing court must examine
only those reasons actually expressed”].) Whatever else might be
said of it, A.’s exchange with the prosecutor cannot fairly be
described as an example of A. being vague. If anything, it was
the prosecutor’s questions, “Anything else in your background?”
and “Do I need to be worried?” that were vague, and A.’s
responses to them were responsive under the circumstances.
Moreover, if this exchange caused the prosecutor any
concern, whether relating to hidden bias, vagueness, or lack of
information (the prosecutor’s rationale that the trial court
credited), the prosecutor was obligated to explore those concerns
further in voir dire to obtain any necessary clarification. As we
discussed in Nazareta, if the prosecutor wanted more information
from A., she could have easily asked him more questions.
Further follow-up questions would have been particularly
warranted given the unusual nature of A.’s exchange with the
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prosecutor. The prosecutor’s failure to delve any further after the
exchange supports the inference that the prosecutor’s stated
reasons for excusing A. were pretextual. (People v. Baker (2021)
10 Cal.5th 1044, 1083 [“ ‘[u]nder certain circumstances
perfunctory voir dire can be indicative of hidden bias’ [citation],
particularly when there is a dearth of questioning ‘on a subject a
party asserts it is concerned about’ ”].)
Accordingly, and for the reasons expressed in more detail in
Nazareta, the judgment is reversed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
People v. Topete (A162466)
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