Three Strikes Case Falls Apart for District Attorney

As we reported back in December, Tracy Foster was facing 25 years to life in prison, were he to be convicted of two felony counts of receiving stolen property for allegedly taking scrap metal out of bins outside the Cooling Plant of UC Davis, and cashing them in at a Woodland recycling center.

However, Mr. Foster’s attorney filed a motion to dismiss through a Penal Code §995 motion, and Judge Paul Richardson partially granted that motion and dismissed count 1.  In a new preliminary hearing, Judge Richardson again dismissed count 1 (for both defendants) and reduced count 2 to a misdemeanor, which Mr. Foster pled to, ending his saga.

As we previously reported, at the preliminary hearing Mr. Jason Flaherty, a supervisor at the Heating and Cooling Plant of UC Davis, testified that a set of welding lead was missing from the plant. Welding lead is “a heavy gauge copper wire.”

Mr. Flaherty had reviewed a ten-second segment from the surveillance tape from the previous weekend and observed a “darker-colored SUV” parked in front of the plant and an unrecognizable person carrying some “rolled-up lead” on March 26, 2011.

According to a motion filed by the defense, the prosecution entered into evidence a sales receipt that showed one of the defendants had brought in and sold a small amount of metal to a Woodland recycling center in late March.

The defense argued that, while the receipt listed a number of metals purchased, the sale did not include any copper wiring and there is no evidence that the sale included anything resembling welding lead.

Mr. Flaherty then testified that on June 12, 2011, around “lunchtime,” he saw, from a distance, an individual inside one of the scrap metal bins at the entrance to the plant.

UCD Officer Manny Guerrero testified that Mr. Flaherty, in his report of the incident, “said he did not see anybody in the dumpster, but that he saw the vehicle next to the dumpster, and the male subject next to the vehicle.”

The defense noted that the scrap metal bin stood next to the dumpster and that both bins are located about 15 feet from the public street and contain no locks nor signs warning the public to “keep out.”

When Mr. Flaherty ran them off, he said he could not identify the occupants of the vehicle, but there was a male passenger and a female driver.  He identified a 40-year-old Hispanic male as the passenger and testified that he saw “what appeared to be two pieces of ‘electrical conduit’ in the vehicle as it was driving away from him at a distance of thirty or forty feet.”

The car was traced to Ms. Logan through a license plate search.

Detective Kevin Skaife testified that the recycling center bought “electrical conduit” and “various scrap metal” from Pam Logan and Tracy Foster and they did not exhibit behavior that suggested they believed the materials to be stolen.  They provided the center with their true names, addresses and driver’s licenses.

Davis Police obtained a misdemeanor arrest warrant for Ms. Logan and Mr. Foster and arrested both at their home in Woodland on July 19, 2011.

The defense would argue successfully on Count 1: “There is no evidence that Mr. Foster was involved in the alleged taking of welding lead on March 26, 2011. There were no witnesses to the alleged theft. Mr. Flaherty, the individual who viewed a surveillance tape from the same day, testified that although he saw a ‘male walking out the gate with one set of welding lead’ on the video, he was unable to identify the man or pinpoint anything to connect him to the vehicle shown in the video.”

“Mr. Flaherty did not see the man exit or even approach the vehicle in the video, let alone place stolen metal in it and drive away,” the defense adds.

The defense also argues that there is no evidence that Mr. Foster was at any point in possession of stolen lead that was turned into the recycling center.  That is because “not only was there nothing linking Mr. Foster to the sale [to the recycle center], the prosecution presented no evidence that the sale [made by Ms. Logan] actually involved materials taken from the plant.”

The sales receipt only records Ms. Logan having brought in the items for sale, with no record suggesting Mr. Foster took part in that transaction or was present during it.

As the defense further notes, “The description of the metals purchased in the sale did not match that of the material reported stolen from the plant.”

“Mr. Flaherty consistently testified that the only material that went missing in March was a ‘set of welding lead’ spanning approximately 300 feet in length,” the defense continues. “He firmly stated that no scrap metal was taken.”

“There was no evidence of the presence of welding lead. In fact, the only evidence of the sale was an itemized receipt, which listed ‘brass, copper, aluminum, and tin’ as the metals purchased. The sale did not include any copper wiring,” the defense pointed out.  They added, “No one from the plant was brought to identify the metals after the sale. There were no photographs taken of the materials.”

In short, Judge Richardson would dismiss the charges because there was no evidence that either defendant had been at the plant and no evidence that the material stolen from the plant was sold to the recycling center.

As we reported in December, the prosecution had to go throw a lot of machinations just to turn this into a felony case.

It is not clear if the defendants took material from the scrap metal bin or the dumpster, but either way, the material in those receptacles is the property of either the plant or the waste removal company.

The DA, however, did not charge the defendants with petty theft, which would have been a misdemeanor, and Mr. Logan did not have enough prior petty theft charges to amount to a felony case.

So, the District Attorney charged him with a Penal Code §496(a) which is a wobbler – meaning it can be charged as either a felony or a misdemeanor.  This section governs junk metal dealing. Generally speaking, while the person who actually steals the property can technically be charged with 496(a), usually they are charged with the misdemeanor petty theft offense.

Once the first receiving stolen property charge was eliminated, Judge Richardson clearly saw no reasonable justification for leaving the second charge as a felony and, using one of the few means of discretion a judge has, he reduced the second charge – of which there was video evidence to meet the probable cause threshold that a crime might have occurred.

Even leaving these charges as felonies, it is questionable that an individual should be sent to prison for 25 years to life for taking property out of a recycle or trash bin and cashing it in at a recycle center.

When we examine Mr. Foster’s priors, that judgment becomes even more questionable, as both previous strikes occurred in July of 1989 when the defendant was just 18 years old and committed two first-degree burglaries, for which he served two years in state prison.

While it is true that Mr. Foster has not exactly been clean since, most of his other crimes are misdemeanors stemming from drug use, and include corporal injury on a spouse, violation of a court order, driving with a suspended license and a failure to pay child support.

He did have a felony conviction in 2001 for possession of a controlled substance, for which he served 8 months, and then in 2003, he had felony for bouncing checks that led to 16 months in state prison.

In short, the two previous strikable offenses were 22 years previously, when the defendant was just 18 years old.  It seems a stretch at this point to put him in prison for 25 to life for allegedly stealing scrap metal.

However, we will never know what would have happened because, at least in this case, the DA did not even have enough evidence to support a crime having occurred in March, and lacked sufficient evidence to support a felony charge in the June incident.

Given the low level of threshold that needs to be met to hold someone to answer charges, that fact makes this case all the more remarkable.

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