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Terence Hallinan, the self-described most progressive district attorney in America, is seeking a Three Strikes conviction against a man accused of crimes that are neither violent nor serious. It’s a rare call for Hallinan, who usually does not exert the full 25-years-to-life muscle of California’s Three Strikes law in such cases. But prosecutors say the move is warranted by the nature of Charley Charles’ previous crimes. Known as Charles Rothenberg before he changed his name, he gained worldwide infamy 20 years ago for setting fire to his 6-year-old son. “You’re talking about an extremely serious punishment, and you don’t want to hand that out indiscriminately,” Hallinan said. “In my opinion [Charles] had a history that justified it.” One of the few cases involving a nonviolent or nonserious third strike to be pursued by the DA’s office, Charles’ case offers a peek into how those calls are made in San Francisco. And one of Hallinan’s two challengers in the upcoming election says he agrees with the DA’s judgment in Charles’ case. Both opponents say they also see the need for a flexible policy in applying the Three Strikes law. The 1994 law increased prison sentences for those convicted of felonies if they had previously been convicted of one or more violent or serious felonies. Defendants convicted of a third strike, which can be for any felony, get 25 years to life. Prosecutors exercise discretion in applying the law because they decide how many prior strikes to allege. “Almost universally, when we go Three Strikes on a case, it’s for a new violent or serious offense,” said Paul Cummins, head of the DA’s criminal division. In People of the State of California v. Charley Charles, 186227 — which is scheduled for a pretrial conference today and trial next month — Charles faces nine felony counts that range from identity theft to illegally possessing a gun. Although none is serious or violent, Hallinan has said 25 years to life is justified given Charles’ history. The DA called Charles “a predator, a career criminal,” with a criminal record that prosecutors say stretches back to 1958. “And what he did to his own son was [beyond] the pale, to say the least.” The two prior strikes the DA is alleging stem from 1983, when Charles set his son on fire in a hotel room in Buena Park, reportedly over a custody dispute with the boy’s mother. He pleaded guilty to attempted murder and arson causing great bodily injury, was sentenced to 13 years in state prison and was paroled in 1990. In 1996, Charles was accused of shooting an Oakland man in the head with a semi-automatic pistol. He was tried on charges of attempted murder, but acquitted. Now, prosecutors allege, in a brief filed Nov. 15 in San Francisco Superior Court, Charles used the personal information of an acquaintance and a neighbor to obtain credit cards in their names. He then racked up $3,662 in charges and withdrawals, cashed tax refund checks mailed to another neighbor and illegally kept a handgun and 44 rounds of ammunition in his Bush Street apartment. Prosecutors initially accused Charles of setting a fire outside the apartment door of one of the neighbors among his alleged victims, but a grand jury declined to indict him on that charge, said Assistant District Attorney Cheryl “Shay” Matthews, who is prosecuting the case. Charles’ defense attorney, Deputy Public Defender Gabriel Bassan, at one point asked the court to dismiss the alleged prior strikes. He cited People v. Superior Court (Romero), 13 Cal.4th 497, in which the California Supreme Court held that a court has the discretion to strike, on its own motion, a prior strike allegation. Matthews said Bassan withdrew that motion last month, but added that she wouldn’t be surprised if he refiled it. Attempts to reach Bassan were unsuccessful. But papers filed with the court hint at Bassan’s possible defense strategy: The deputy public defender says the two prior strikes alleged are pinned to a single incident. Bassan also said Charles has not been convicted of a crime since; he has been employed for the majority of the time since his release from prison; he’s willing and able to make restitution to the victims of the fraud charges; and he “has expressed sincere remorse for his past actions both publicly and privately.” TEAMWORK Hallinan doesn’t make decisions in Three Strikes cases alone. A committee made up of assistant DAs recommends whether to allege Three Strikes and pursue 25 years to life. The DA makes the final call. Chief of Administration Linda Klee, who was on the ad hoc committee for about two years, said that, “in general, Terence agrees with the committee.” Cummins said the group usually includes three to six veteran prosecutors led by the head of the criminal division, a post that he filled recently when he and Murlene Randle, now chief assistant district attorney, switched jobs. Hallinan said he relies a lot on the experience of the committee members, who have office policies to guide their review, but no firm checklist of criteria. “As a general rule, I want the third strike to be a violent or serious offense,” said Hallinan. But his policies are flexible, he said, and “it’s a case-by-case call.” Committee members past and present said they look at a slew of factors, such as the nature and number of the current charges, past arrests and convictions; past punishments, probation and attempts at rehabilitation — even a defendant’s military and family history. “The whole idea of having a Three Strikes committee is that there is no automaticness to an offer of 25 to life,” said Assistant District Attorney Adrian Ivancevich. “Everything is customized.” In some cases “it’s a no-brainer,” Ivancevich said, describing as a hypothetical a defendant who has a history of using a deadly weapon and uses one when committing a potential third strike. But if the third strike isn’t violent or serious, “that’s a strange animal,” he said, noting that he wasn’t involved in the recommendation for Charles. When a defendant’s past pattern leaves a stronger impression on Ivancevich than the current felony, he said, that raises a question: “Should we use this current, nonserious felony to take this person out of circulation to keep people safe?” The DA’s office doesn’t keep statistics on the committee’s recommendations, Klee said, but she estimated that perhaps fewer than 50 percent of the cases it reviews get a recommendation for 25 to life. She and Jerry Coleman, a managing attorney in the DA’s office, both said the committee doesn’t review all cases that are technically Three Strikes eligible. For example, if the current charge is for a narcotics crime, or a nonserious, nonviolent crime, it generally isn’t considered for 25 years to life, they said. If the assistant district attorney on such a case thinks it merits an exception, he or she brings it to the Three Strikes committee, they said. The DA has an obligation to consider the likelihood of conviction on every case, Hallinan said, but public opinion is a larger consideration when the third strike is a residential burglary. Although it’s a serious crime, San Francisco juries are hesitant to put people away for 25 years to life for that, Hallinan said. “We’ve had them just flat-out acquit them of everything.” The DA recalled catching political heat for his judgment on a Three Strikes case only once — when he got the maximum penalty for a nonviolent, nonserious third strike. “I went 25 to life, and the offense was a credit card, but it was by a guy who I was convinced was responsible for the murder of the woman whose credit card he was using,” Hallinan said. “And later on, he confessed that he was.” Public Defender Jeff Adachi says he believes the Three Strikes law should be abolished. But, he said, “We’re fortunate in San Francisco that, unlike places like San Mateo and Santa Clara where Three Strikes are routinely filed, Terence has taken the position that Three Strikes should be sparingly charged.” He added, “It would help to have clarity and consistent policy.” Hallinan’s judgment on Charles isn’t drawing heat from campaign opponent Bill Fazio, who was a prosecutor under Hallinan’s predecessor, Arlo Smith. “I don’t disagree with Three Strikes in this case, for very particular reasons,” Fazio said. Fazio, now a solo criminal defense attorney, said if he were elected DA in November, he would create a policy whereby if the DA decided to allege one or two strikes in a case, the defendant’s attorney would be given an opportunity to meet with the prosecutors to present exculpatory or mitigating information that might change their minds. Fazio also said he would spell out guidelines for Three Strikes cases in a manual for the office, but that none of them would be hard-and-fast rules. Deputy City Attorney Kamala Harris, who used to work in the DA’s office under Hallinan and also is running against him this year, said she didn’t know enough about Charles’ current case to comment on whether she agreed with Hallinan’s call. Harris also stressed that in her office, Three Strikes policies would be flexible. “As varied as human beings are, that’s how varied the cases are. So necessarily there’s not going to be a strict formula.” CHALLENGES TO THE LAW When it comes to Three Strikes, the California District Attorneys Association is trying to guard prosecutors’ discretion, which has been challenged by a string of perennial attempts to narrow the law. The latest is AB 112, sponsored by Assemblywoman Jackie Goldberg, D-Los Angeles. The district attorneys association is opposing it, said Executive Director David LaBahn. The bill, which seeks a ballot measure to have voters change the Three Strikes law, in part would require that the current strike be a serious or violent felony, not just any felony. Eliminating the option to put away a violent repeat offender on a nonviolent, nonserious third strike, even petty theft, could hinder prosecutors’ ability to target criminals who pose a public threat, said LaBahn. Hallinan said he wouldn’t be opposed to limiting the third strike to violent or serious felonies, because he thinks some DAs abuse the law . Such a change would prohibit using Three Strikes against Charley Charles, he said, but by using other sentencing provisions, “you would be able to get a whole lot of years against him anyhow.”

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