Appeals court throws out San Jose murder convictions over a prosecutor's pit bull analogy and 'predator' talk

The 6th District Court of Appeal on Friday, Oct. 23, reversed the convictions of Ricardo Diaz, Alexander Toledo and Keonte Smith in the August 2019 killing of Brian Castro in San Jose. The ground was the prosecutor's language. The unanimous opinion was written by Justice Cynthia Lie, with Acting Presiding Justice Grover and Justice Wilson concurring. It is unpublished, so it cannot be cited as precedent.

The case

Prosecutors said the three men drove from Stockton to San Jose to rob Castro and his friend Robert Hernandez during what was arranged as a sale of several pounds of marijuana. Diaz shot both men, killing Castro, 21, and wounding Hernandez. Jurors convicted Diaz and Toledo of murder and convicted all three of robbery and assault with a firearm. The Mercury News reports that Diaz and Toledo were sentenced to life without parole and Smith to 13 years.

What the prosecutor said

According to the opinion, the prosecutor told prospective jurors about his own experience dog-sitting a pit bull to explain how jurors should evaluate the defendants' conduct. In his opening statement and closing argument, he compared the defendants to ocean predators preying on others in "the food chain on the street." The Mercury News identified him as Deputy District Attorney Sulaiman Tokhi and the trial judge as Deborah Ryan, who has since retired.

Why it matters under the law

The California Racial Justice Act bars racially discriminatory language at trial, including language that, to an objective observer, "compares the defendant to an animal." The court found that the defendants had shown, by a preponderance of the evidence, that an objective observer would understand the remarks as appealing to racial bias. The opinion says this holds regardless of the prosecutor's intent.

The panel said the evidence of guilt was not overwhelming on every count. It also said it could not rule out that the violation affected how jurors weighed disputed testimony and Diaz's self-defense claim. Under the RJA, once a judgment has been entered and a violation is found, the conviction must be vacated.

What happens next

The court vacated each defendant's convictions and sentences and sent the case back to Santa Clara County Superior Court for further proceedings, which could include a retrial. The panel also rejected Toledo's and Smith's arguments that the evidence was legally insufficient. That matters because a finding of insufficient evidence would have barred a retrial on those counts.