People v. Topete CA1/4

Filed 1/30/24 P. v. Topete CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

1

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