In early 2010, the Vanguard reported on the case of Robert Ferguson, who faced life in prison for stealing a package of shredded cheese from the Nugget Market. Ultimately, after unfavorable press, the District Attorney dropped pursuit of the third strike and Mr. Ferguson for his minor crime, and he was instead was sentenced to nearly eight years in prison.
In this poor economy, a number of cases have popped up recently involving people stealing scrap metal to recycle for small amounts of cash.
In this case, 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 suggested that 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.
It should be noted that Mr. Foster’s attorney is questioning the evidence that he actually received the stolen property and sold it at the recycling center. However, for the purposes of this story, we are focusing on the three-strikes aspect of it, to which there are several critical points that should be raised.
First, the non-violent, non-serious nature of this crime, if it was indeed committed by the defendant, should lead to the questioning of the rationale for pursuing this as a three-strikes case.
As we have previously noted, there is an initiative proposed, as the San Francisco Chronicle this week reports, “Supporters of a proposed ballot measure say it would narrow the three-strikes mandate to what voters wanted all along: a law that keeps murderers, rapists and child molesters in prison for life and doesn’t leave low-level, nonviolent offenders languishing behind bars for decades.”
“The original three-strikes law passed overwhelmingly, and what this does is restore the original intent,” political consultant Dan Newman told The Chronicle. “What voters wanted in the first place was to make sure the truly most violent monsters are locked up forever. … What they don’t want is wasted resources.”
That is exactly the issue that we face in this case.
But what is more troubling is that the DA, as was the case in the “cheese” case, has taken pains to make sure this could be charged as a third strike.
It is not clear if the defendants took the 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.
That would suggest that, provided that the value of the material was less than $400, which seems safe to assume based on what we know, this case would be a petty theft. A petty theft is a misdemeanor. Given the facts of this case, I see no reason why this needs to be charged as a felony, and in fact it takes some gymnastics to get there.
In the “cheese” case they got to a felony because petty theft with a prior is a felony. The problem in this case is that Mr. Foster does not have a prior petty theft. So they cannot get him to a felony that way.
So they 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.
So far, we have a non-serious crime whose most logical charge was a misdemeanor, that the DA found a way to charge as a felony.
We also look at Mr. Foster’s priors here, and both 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.
He has not been clean since, although 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.
Yolo County Continues to Buck a Trend Against Charging Three Strikes Cases
Michael Romano, a Stanford University law professor, received an award and spoke at the Vanguard’s fundraiser in early November.
He told the Chronicle, “Said statistics show that people serving life sentences for a nonviolent, third strike offense are much less likely to commit another violent crime than other felons.”
Five years ago, Professor Romano founded the Three Strikes Project. The project represents defendants charged under the Three Strikes law with minor, non-violent felonies.
In 2010, the New York Times reported, “California’s repeat-offender law is unique in this stringency. Twenty-five other states have passed three-strikes laws, but only California punishes minor crimes with the penalty of a life sentence.”
Back in July, Andy Furillo wrote an article in the Sacramento Bee arguing that “prosecutors in Sacramento and throughout California have become far more selective in applying the full force of the statute, reducing the number of lifetime prison terms being sought for third strikers to a relative trickle.”
The Bee article reports, “While it used to obtain the maximum sentences anywhere from 50 to nearly 100 times a year, the Sacramento District Attorney’s Office now asks for life terms for third strikers fewer than 20 times a year, according to the California Department of Corrections and Rehabilitation. The office obtained 16 such sentences in 2010 compared with a high of 94 in 1996.”
He continues, “Sacramento prosecutors say they’ve simply gained a better sense of which offenders truly deserve the harshest measure of the law.”
Mr. Furillo, “Prosecutors have always had discretion under the law to reduce potential life terms to lesser sentences, but many didn’t exercise it. Los Angeles County prosecutors, in particular, refrained from ‘striking strikes,’ or dismissing prior serious or violent convictions for the purpose of lowering prison terms.”
That changed under Steve Cooley, who ran for Attorney General last year and became LA’s District Attorney in 2000.
Writes Mr. Furillo, “Elected largely on a platform of refining the law’s application, Cooley took the lead in putting a new policy in place. He reserved the heavier sentences for defendants with serious or violent third strikes, but built in exceptions to target offenders with horrific pasts even if their latest charge wasn’t so serious.”
He adds, “Cooley said over-application of the law by some California prosecutors – hitting people for third strikes for minor felonies such as drug possession and pizza theft – prompted a public backlash. A 2004 statewide ballot measure that would have dumped three strikes altogether came within three percentage points of winning.”
“If you have a good law, and you abuse it, you will predictably lose it,” Mr. Cooley said at a recent symposium on the three-strikes law in Los Angeles. “If somebody has a rock (of cocaine) in his sock, you give him 25 to life? Give me a break.”
Sacramento has a written policy on three strikes, according to the Bee article, in which they charge all qualifying three strikes as such, but then dismiss strikes if the sentence would be “disproportionate and therefore unjust based on the circumstances of the current offense and the background of the defendant.”
Writes Mr. Furillo, “According to a review of the roughly 90 three-strikes cases pending in Sacramento in May, prosecutors are dismissing strikes in more than 40 percent of the cases relatively early in the process.”
“Even with discretionary authority returned to the judges and prosecutors exercising a softer approach, plenty of critics still think the California statute is unduly harsh and applied unevenly in different parts of the state,” the Bee reports.
“You still have some district attorneys out there who are still using it to capture aging felons on relatively minor third felonies,” McGeorge School of Law professor Michael Vitiello told the Bee.
The Bee adds, “In addition, Vitiello said, the prisons house thousands of offenders who are doing 25-to-life sentences whose cases may not have triggered that term today.”
“Vitiello said the state needs a ‘broad sentencing scheme’ overseen by an appointed commission that would review the state’s entire sentencing structure in order to reserve limited prison space for the most dangerous offenders,” the Bee continues.
“With three strikes, it’s blunderbuss,” Professor Vitiello said. “You need a more sophisticated weapon.”
Meanwhile, the Yolo County District Attorney’s office is bucking statewide trends, not only by charging third strike offenses but in overcharging cases in order to do so. The Foster case, along with the Ferguson case, now are prime examples.
This one is an easy one. There was no need even to charge this as a felony in the first place.
—David M. Greenwald reporting
I read a story where a 1000 feet of copper wire was stolen at a value of $21,000. It would be interesting/important to know how much this scrap copper wire was truly worth…
Clearly less than $400 or they would have been charged with grand theft.
I think this case is an excellent example of two major ways in which our local and overall judicial system fail us.
1) On the local and state level, much of the overcrowding of our prisons can be attributed to the short sightedness of voters, law enforcement and DAs ( in my opinion more interested in their own ” tough on crime” based careers than justice ) in choosing to overcharge and over sentence. In California this resulted in such overcrowding that ultimately the Supreme Court had to weigh in to effect change in an obviously inhumane system which the state spent years and many millions of dollars defending.
2) On a societal level, I think their is a much more fundamental problem. As a society, we seem much more interested in punishment that we are in justice or in ensuring the safety of our communities. But only for someone else, who we like to label as ” the other”. If you don’t believe this is true, how many of us have not broken some law, say speeding, or making a U turn where we know one is not allowed, or driving while in our own opinion, ” safe to drive” while perhaps with a little too much alcohol on board ? Now how many have us have turned ourselves in, offered to pay our fine, and or recommended that our own license be suspended for DUI ?
We are willing to accept the actions of a prosecutor who is willing to attempt a three strikes charge for a stolen bag of cheese or small amount of wire, but are unwilling, and sometimes even smug about “having gotten away with” our potentially much more dangerous transgressions.
I am strongly of the belief that laws and sentencing should be about societal protection, not about punishment which is frequently based on issues other than the potential repercussions of the crime itself. For those who doubt that discriminatory distortion of ” justice” is a reality I would
remind of the only recently addressed issue of widely varying differences in sentencing for possession of equal amounts of crack cocaine vs powder.
Obviously not the same case, but if they catch one of those creeps who pull the wire out of park lighting systems and sell it for scrap… well, 25 years would be a reasonable amount of time for them to be out of society.
Sorry Rich….that should have been “there”. I hate to offend this early in the morning !
[quote]Clearly less than $400 or they would have been charged with grand theft.[/quote]
Gotcha!
[quote]I am strongly of the belief that laws and sentencing should be about societal protection, not about punishment which is frequently based on issues other than the potential repercussions of the crime itself. [/quote]
Let me preface what I am about to say by noting I am opposed to the 3 strikes law as it is now. However, some would say the purpose of laws/sentencing is also about deterrence…
[quote][i]”He told the Chronicle, “Said statistics show that people serving life sentences for a nonviolent, third strike offense are much less likely to commit another violent crime than other felons’.”[/i][/quote]Makes sense. People handcuffed a tree are much less likely to kidnap a child, too.
Elaine
I agree that many quote the need for harsh punishment as deterence. Perhaps it is my medical background that is coming through but I am a firm believer in evidence based action. Where is the evidence, let alone proof, that over charging, long sentences, three strikes, or for that matter the death penalty ( which I know you also oppose ) serve as effective deterence ? Given our high proportion of incarceration compared to other socially, economically and politically comparable countries, I would say that none of these measures have been demonstrated to be effective deterrents.
The value stolen that constitutes grand theft was raised this year to $950, so $400 is no longer the cutoff. This makes a lot of bike thefts only prosecutable as misdemeanors. Ask me how I know……
Your recent capture following the bike thievery case otherwise would have been your third strike? Is this a confession?
[i]
…
Your recent capture following the bike thievery case otherwise would have been your third strike? Is this a confession?
[/i]
Heh – good one. I’m going to be a witness. I’ll have to see how many strikes this guy has. Should make a good story once it’s all wrapped up.
[quote]Clearly less than $400 or they would have been charged with grand theft. [/quote]
Maybe you ought to reconsider your statement? If the facts do not apparently support that [b][i][u] ALL [/u][/i][/b] the elements of a particular offense have been satifided — then possibly THAT was the reason?
David, in this “easy” case for which crimes have all the elements been met?
[quote]Where is the evidence, let alone proof, that over charging, long sentences, three strikes, or for that matter the death penalty ( which I know you also oppose ) serve as effective deterence ? [/quote]
If they are in jail, they cannot commit a crime outside of jail – that is all the proof needed…
However, it should be noted that some countries summarily execute trouble makers, which certainly means they cannot commit any more crime. I doubt our country would want to ascribe to such severe sentencing. So it is really a question of where the line is drawn, and people greatly differ on that point…
[quote]David, in this “easy” case for which crimes have all the elements been met?[/quote]
Like you, I’m not sure we are getting the full story in this case…
You’ve gotten all the info I have. There are two charges here, should receiving stolen property, a fairly small value, add up to 25 to life? That’s the question. I don’t see what additional info we could possibly have that would justify that.
ERM
Of course, I have to agree in the narrowest sense, that the single individual is deterred from committing crimes outside jail for the duration of their sentence. But for any but the most dangerous, who of course should be prevented from harming again for life, I think this is an overall loss for society. Prison is an excellent training ground for how to better commit crime, for fostering further disrespect for ones captors, and for society outside the walls. Also, It is entirely possible for those in prison, especially gang members to wreak havoc outside the walls from within
And, more Iimportantly from my point of view, is the broader issue of deterring others from committing crimes which is where I feel our current system is at its weakest. We identify groups of individuals at high risk, and then do little to nothing to support their success in legal endeavors in our society. Two examples that come readily to mind: foster children who lose essential all of their support upon reaching 18 and cut backs in social service support to families already identified as at risk in both Yolo and Sacramento counties.
DG, you raised several issues with this story. I am asking you to prove up your position.
In this case, according to your presentation of the facts, exactly what crimes have been established and please include the reasoning.
Specifically, you appear to suggest the reason grand theft was not at issue was due to the property value.
Also, please expound on your posture, relative to “Why,” in your lay-opinion, the DA charging deputy should not use his/her discretion to file as s/he did?
Medwoman although there is some validity to your asertion — paraphrasing — that prison can be a place of schooling…
Are you able to demonstrate that it is pervasively [i] a greater [/i] schooling ground than let’s say the hood, gang hang-outs, the internet and the like?
ERM – This may be the story?
[url]http://riverheadlocal.com/local-news-content/1715-major-copper-wire-theft-at-epcal[/url]
Thanks AdRemmer. At the risk of being told I should not copy too much of an article, I will try and print the pertinent part of the article that AdRemmer linked to:
[quote]Copper thieves have caused blackouts in cities across the country, and botched copper thefts have resulted in fires and the electrocution or burning of would-be thieves. In Oct. 2010 a vault explosion and fire killed a man and burned his wife as they attempted to steal copper wire in South Gate, Calif. [/quote]
[quote]We identify groups of individuals at high risk, and then do little to nothing to support their success in legal endeavors in our society. Two examples that come readily to mind: foster children who lose essential all of their support upon reaching 18 and cut backs in social service support to families already identified as at risk in both Yolo and Sacramento counties.[/quote]
Totally agree w you here…
AdRemmer
“Are you able to demonstrate that it is pervasively a greater schooling ground than let’s say the hood, gang hang-outs, the internet and the like? “
No. I can’t, but It is one area that we could possibly have some impact on by not choosing to mix those convicted of crimes of lesser danger to society with those who are more hardened criminals. I am a firm believer of identifying where we can make the most impact, and choosing to invest our time, energy and money in those endeavors. Establishing and adequately funding programs designed to help people develop awareness and skills which would help them avoid resorting to crime is in my opinion one of those areas in which our punishment fixated society has failed to invest enough resources.
AD: You’re welcome to look up the statutes and the penal code, to me I’ve made the case I’m going to make, if you believe that the current charge should be receiving stolen property and charged as a felony rather than a misdemeanor petty theft that’s fine but it also ignores the other core issue of whether these crimes warrant 25 to life. If you believe they do, then really we have little to say to each other.
[quote][i][u]Elaine[/u]: “Like you, I’m not sure we are getting the full story in this case…”
[u]David[/u]: “You’ve gotten all the info I have. There are two charges here, should receiving stolen property, a fairly small value, add up to 25 to life? That’s the question. I don’t see what additional info we could possibly have that would justify that.”
[u]AdRemmer[/u]: “DG, you raised several issues with this story. I am asking you to prove up your position….Specifically, you appear to suggest the reason grand theft was not at issue was due to the property value.”
[u]David[/u]: “You’re welcome to look up the statutes and the penal code, to me I’ve made the case I’m going to make, if you believe that the current charge should be receiving stolen property and charged as a felony rather than a misdemeanor petty theft that’s fine but it also ignores the other core issue of whether these crimes warrant 25 to life. If you believe they do, then really we have little to say to each other.”[/i][/quote]
David, these are really disappointing responses. But, they point out the biggest failing of the [u]Vanguard[/u]’s approach, one that’s increasingly ignoring facts in order to make ideological points.
You are the one who decides when to stop researching, reporting and writing. If you’re purposely stopping in order to jump prematurely in order to jump to some preconceived conclusion, you’re not being honest with us. If you don’t realize you’re have inadequate facts to make the conclusions you’re making, you’re not being with yourself.
This story is so short on information that it would be difficult for anyone to draw the conclusions you’ve already made. Yet, your response to those who raise questions essentially is, “I’m not interested in the compete truth, and if you don’t buy my inadequate reporting and my weak analysis, you can just shove it.”
I don’t think this is the way you personally want the [u]Vanguard[/u] to be viewed, but you’re the only person who can make the changes that will make and keep it a credible voice in the community.
“David, these are really disappointing responses. But, they point out the biggest failing of the Vanguard’s approach, one that’s increasingly ignoring facts in order to make ideological points. “
I don’t know why you find them disappointing, I find them honest. I don’t know anymore. If the trial happens this week as scheduled, then we will know a lot more. But the point I was trying to make here is whether it really matters – is there ever a scenario in which you believe a guy pulling out scrap metal, even if it is someone else’s scrap metal bin, should warrant 25 to life. Answer that. I don’t know if he did it or not, but I do know that 25 to life in this case is wrong.
The story can be short on details and information, that’s fine, not every story needs to be exhaustive. I think we know enough facts – particularly the charging information, his priors, and barebones facts of the case to make the determination that 25 to life is not warranted. Is there really additional information that is going to change that?
“This story is so short on information that it would be difficult for anyone to draw the conclusions you’ve already made.”
I’m sorry but that’s bullshit. I just feel like you are looking for some small edge to hit me over the head with, because you do not want to come to the conclusion that I think deep inside you know as well as I do – there is something messed up with the way we do things.
Sometimes you don’t need to know every detail. If the question here is guilt or innocence, then I agree, we need to know a lot more and we will in the trial. But if the question is a three strikes question, then we don’t. In that case we need to assume the worst of the charges is true and then weigh whether that adds up to 25 to life.
What do we know in this case? (A) Two charges, receiving stolen property; (B) the property received was out of a dumpster or scrap metal bin; (C) taken to a recycling center; (D) not sufficient for grand theft; (E) prior strikes in 1989 when defendant was 18
Those are the facts that we know, now you want to hit me on the head for inadequate reporting and weak analysis, fine. But what additional facts do we need to know to know that using three strikes here is inappropriate?
But you never make those kinds of arguments, all you do is make the kind of post that you made this time, I can probably find 20 points that are similar. You’re n going to change my view by attacking. Make an argument and we can see where we end up.
[quote]Sometimes you don’t need to know every detail.[/quote]
Not every detail, but certainly every important detail. And my gut is telling me something is missing here… let’s see what the trial result is… if it goes to trial. If it doesn’t, I assume you can tell us what the plea bargain was?
I think you have created much skepticism (at least for me) about YJW bc you look at things through such pro-defense colored glasses, even on egregious cases that really should not be in question…
Well we won’t get to see a trial here, maybe not at all. The defense filed a 995 motion to dismiss and they threw out the first charge against the defendant. He still faces one charge, but there was insufficient evidence of his involvement in the first incident.
Toward Elaine’s point, “my gut is telling me something is missing here,” why is that? We know that a guy was facing 25 to life in Yolo for stealing $3.99 cheese, why is it so out of the realm of possibility that someone could face 25 to life for stealing garbage out of a scrap metal bin?
[quote][i]”Toward Elaine’s point…why is it so out of the realm of possibility that someone could face 25 to life for stealing garbage out of a scrap metal bin?”[/i][/quote]I don’t understand why you can’t see the point we keep trying to make. It’s not whether we can see it [u]could be possible[/u]–we do; we’re not ignorant or unreasonable enough to deny the possibility. It’s that we’re saying your story doesn’t support your conclusion that he’s facing 25 to life for, in this case, “stealing garbage out of a scrap metal bin.”
When you cannot or will not provide facts we ask for, information that could make the case you want to make, it’s just really frustrating from a reader viewpoint. When you shut down the conversation with comments like “if you don’t agree, we’ve got nothing to talk about,” it suggests the conversation is frustrating for you as well.
What is the charge that was tossed out as a result of the 995 motion? What charge is left? Thanks.
If you read the beginning of the story you see that there are two charges of receiving stolen property, one stemming from March and the other from June. The judge ruled there was insufficient evidence that Mr. Foster might have committed a crime in March, but the charge from June remains.
Walking crime factories — put them away.