Judge-change motion blocked

A Yolo County judge firmly shot down an attempt to block all local judges from the case of Arbuckle resident Marco Antonio Topete, accused of murdering a sheriff's deputy last month.

Judge David Rosenberg denied the defense motion during a one-hour hearing Thursday in Woodland. Attorneys for Topete, 35, argued Rosenberg and the county's nine other judges are too sympathetic to the Yolo County Sheriff's Department to objectively decide the fate of Topete, arrested in connection with the June 15 shooting death of Deputy Jose Antonio (Tony) Diaz.

"I take my oath and my role and responsibilities as a judge seriously," he said in rejecting the motion filed June 27 by Dean Johansson, Topete's public defender. "I do not select the easy cases and disqualify myself from the high-profile, complex or difficult cases."

Rosenberg set another hearing for 8:30 a.m. July 18. At that hearing, the defense may again pursue its motion if it can find a judge from outside Yolo County — one that prosecutors also must accept — to consider it.

Prosecutors and defense attorneys will have two weeks to agree on an outside judge to decide whether any Yolo County judge can hear the case.

Topete's lawyers have complained that sympathy for Diaz has stacked the deck against the defendant, an alleged gang member who served nine years in prison for another shooting in 1998.

His June 18 arraignment captured the bias against an accused cop killer, attorneys said. Sheriff's deputies providing courthouse security left a door locked, keeping out Topete's relatives as well as reporters, while law enforcement officers and Diaz's family entered through a different door. The defense motion alleged the court colluded with deputies to keep out those who might side with the suspect.

But Rosenberg sharply denied trying to shut the public out of the courtroom, saying he ordered a court transcript published the same day after news of the lockout became known.

"I may have been accused of many things in my life, but I don't believe I have ever been accused of being stupid," the judge told Topete's lawyers.

Rosenberg also said he lacks the power to remove judges not already assigned to a case. However, three Yolo judges voluntarily recused themselves because of past links to Diaz, who sometimes served as a courtroom bailiff during his four years as a sheriff's deputy.

Topete has been held without bail in the Sacramento County Jail since his arrest, which followed an overnight manhunt near the Dunnigan country road where Diaz was killed. The shooting followed a high-speed chase up Interstate 5 after deputies tried to stop Topete for allegedly driving drunk, with his wife and infant daughter in the vehicle.

District Attorney Jeff Reisig has not said whether he will seek the death penalty for the death of Diaz, who was buried Tuesday in Dixon.

Contact Appeal-Democrat reporter Howard Yune at 458-2121 or hyune@appealdemocrat.com