Eye on the Courts: Times Have Changed, DA Needs to Change with Them


rice-bowlThis week we saw, once again, a man facing felony charges in Yolo County for a miniscule petty theft.  In this case, the man faced a felony charge, accused of stealing a rice bowl from the Nugget Market in Davis.

Under California law, petty theft with a prior is a wobbler – it can be charged as either a felony or a misdemeanor, with the DA having the discretion of charging it as either.  However, Judge Richardson used his discretion to reduce the charge to a misdemeanor.

The list price of $3.99 is reminiscent of a more infamous case of overcharging by local prosecutors.

In February of 2010, the Vanguard broke the story that would be picked up across the country and even in the London Guardian.  Yolo County man Robert Ferguson faced life in prison for stealing a $3.99 package of shredded cheese from the Nugget Market in Woodland.

A few days after the Vanguard‘s story, the Sacramento Bee and then the New York Times picked it up, then the DA’s office announced that they were no longer seeking a life prison sentence.

Clinton Parish from the Yolo County District Attorney’s office had previously argued in court filings that Mr. Ferguson was a candidate for using the three strikes law, due in part to the five-part test.  The parts are, nature and circumstances of current offense, nature and circumstances of prior strikes, defendant’s background, defendant’s character, and defendant’s prospects.

But a few days later, Assistant Chief Deputy District Attorney Jonathan Raven told the Bee that recent psychological evaluations convinced prosecutors that Mr. Ferguson’s convictions for petty theft did not warrant a life sentence under California’s “three-strikes” law.

Still, even removing that strike, Mr. Ferguson receive a sentence of seven years for his offense.

Today, of course, Mr. Ferguson, after the passage of Prop 36, would not be eligible for a third strike anyway.  He would have automatically had the strike waived and been eligible for second-strike sentencing of seven years in prison.

With federal mandates and the advent of AB 109, California is trying to clear its prisons of those committing non-violent, non-dangerous and non-sexual offenses.

Judge Richardson did in this case what Judge Warriner was not willing to do in the 2010 Robert Ferguson case – reduce the charge to a misdemeanor.  Think about this, Mr. Ferguson will have to serve at least 85% of his seven-year sentence, at a cost of $50,000 per year to the taxpayers of Yolo County.

During a time when the state, the county and local prosecutors are claiming that they lack sufficient prison and jail space to house dangerous criminals, we are using that jail space on people like Robert Ferguson, who, while indeed lifelong offenders, have records that are more of a nuisance than dangerous.

It is true that loss prevention and petty theft are costly to local businesses, but putting people in jail now or in prison for these offenses is far more costly to the voters.

If this were an isolated case, perhaps we could overlook it as an outlier, but the fact is that over the years these cases keep coming up, and Nugget Markets has a very tough policy on loss prevention, having individuals arrested for very small offenses.  Over the years we have seen lengthy prison/jail sentences for people for stealing cheese, stealing Chinese food, and for other small-time offenses.

We are talking now about millions of dollars in taxpayer money to prevent perhaps a few hundred, at the very most, in theft.

The DA’s office has not changed their charging policies to go with the times, either.  This is not the first time we have seen Judge Richardson use his authority, over the protested objections of the DA’s office.

In May of 2011, a defendant suffering from schizophrenia with a long history of mental illness stole a Godiva candy bar worth $2.95 from the Woodland mall.

Deputy DA Jennifer Davis, however, argued that it should not be reduced to a misdemeanor because of the defendant’s record with the other felony cases, along with a violation of probation.

Judge Richardson ruled, on the other hand, that this was just a candy bar that was worth $2.95.  There was no need for this case to be a felony.  He reduced it to a misdemeanor in the interest of justice.

When the prosecution protested, he proclaimed, “It’s a candy bar.”

The prosecution in this country has tremendous power in charging cases, and in very few instances will we see judges use their discretion to reduce charges in the interest of justice.  Discretion does us no good without common sense to guide us.

From our perspective, the times have changed and we need to change the way we handle low-level offenses.  No longer can we afford to spend $50,000 a year on an offense that, at its core, costs us only a few dollars.

There are better and more effective ways to deal with these cases.  And the good thing is that the DA’s office is starting to recognize that, as well.  Implementing a Neighborhood Court is the first step, but implementing a more sensible charging policy that makes use of alternative methods is perhaps more important.

—David M. Greenwald reporting


About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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19 thoughts on “Eye on the Courts: Times Have Changed, DA Needs to Change with Them”

  1. Mr Obvious

    The justice system is the sense of how to charge a crime is really a negotiation. It’s a balancing act. The prosecution has to ask high and settle low because the defense will use a stubbed toe as a child as a mitigating circumstance.

    David, what would the appropriate punishment be for someone who is a career thief and continues to steal late into their life? Do you really believe this person hasn’t stolen numerous times without getting caught? This isn’t a kid who got caught stealing a pack of gum. This is a person who spent time in prison for robbing someone 30 years ago and they continue on as a criminal.

    How is the neighborhood court going to help someone who has proven time and time again that they do not care about the laws of society?

  2. Davis Progressive

    “How is the neighborhood court going to help someone who has proven time and time again that they do not care about the laws of society?”

    have you participated in the program? talked to anyone who has?

  3. marabjones

    @Mr. Obvious….I agree this was not a kid and the defendant had a record of theft, robbery which appears to me he has not learned a lesson but it would make sense to look into better ways of making people like him stop, if at all possible? Some people never learn til they are in prison for the rest of their natural lives. It is unfortunate…and again, costs us a whole lot more to house them than to give them a lessor charge for the amount of 3.99. However, I am not the law, just hope thru the new programs they will help change things and make a difference in the community. I think it’s great the DA has come up with something new to help. I also believe Judge Richardson is a pretty fair and just kind of judge/human. I am sure it cost the county a lot more just to take it this far than 3.99. Hutchinson still has to be paid…along with DDA. Sure they make more than that an hour…

    @Davis Progressive…not been present but would like to see how it works.

  4. Davis Progressive

    “Hutchinson still has to be paid…along with DDA. Sure they make more than that an hour…”

    both of them are on salary, the big cost is in jail capacity, which i believe is $30 to $40 k per year at the state level for a $3.99 offense.

    so we have choices here…

    current system not working – expensive, recidivism high (70%)
    we could life him in jail, but that’s a half a million if not more
    if we don’t life him, we have to figure out how to help him.

    mr. obvious, what’s your suggestion?

  5. JustSaying

    How old is this guy, anyway?

    If we think “the DA needs to change with the times,” how about giving his “good thing” effort to change more than two sentences at the end of another rehashing of the cheese case (in which the DA reduced the charges, as you note) and the 2011 Godiva case?

    These folks aren’t being tried simply for shoplifting a small amount of food. And, it’s likely they only got caught after many successful thefts. Furthermore, their histories contain convictions for serious crimes. While charging shoplifting as a felony doesn’t make much sense, I’m not sure that it’s a significant contribution to the incarceration issues noted in this article and our comments.

    But, what options should we use on habitual criminals? Are we expecting those who are alleged to have committed crimes to confess and save us expenses for investigation and trials to prove guilt? What if treatment is ordered rather than incarceration and the habitual criminal doesn’t show up.

    Costs indeed are high for policing and enforcing laws, for going to court and for treatment and incarceration. If DP’s recidivism rate of 70% is close to correct, what do we expect it will be without incarceration?

    We all know the problems. I’m not sure I have a clue about the solution. What are you recommending as a strategy for dealing with for alleged lawbreakers in general and for dealing with habitual criminals whose offenses include serious and violent crimes and who eventually get caught shoplifting?

  6. Phil Coleman

    No facet, repeat, no facet, of our criminal justice system can be justified (no pun intended) on the basis of any cost-benefit analysis. The so-called “system” wastes hundreds of millions of your tax dollars annually. Those who oversee this process also financially benefit from that vast economic waste of public funds.

    If you could give every hard-core felon a million dollars, tax free, with the assurance that felon would never enter the system again, it would be the greatest bargain in history. But we are speaking in utopian terms here.

    Virtually everybody who has oversight over our justice system has an inherent conflict of interest. Legislators are predominately attorneys at law in other capacities. All judges with judicial oversight are themselves lawyers, as required by law (which they implemented).

    Until our justice system is created, regulated, and reviewed by persons other than attorneys, you will never see any economic reform, short of a revolt or revolution.

  7. JustSaying

    How much cash would it take to get cheese and chocolate thieves to stop, or could they quit if they tried to?

    I wouldn’t blame everything on the attorneys. Some of the worst laws we’ve come up with have been demands from “the people.” And, “economic reforms” would only improve parts of our justice system. Finally, law enforcement officers, guards, unions and other non-attorney types should be playing roles.

    But, I guess a good place to start would be to kill all the lawyers.

  8. David M. Greenwald

    “These folks aren’t being tried simply for shoplifting a small amount of food. And, it’s likely they only got caught after many successful thefts. Furthermore, their histories contain convictions for serious crimes.”

    His only more serious conviction was 30 years ago, everything else was petty theft stuff of this nature. You cannot punish people because they may be doing it more frequently than they caught.

    “How much cash would it take to get cheese and chocolate thieves to stop, or could they quit if they tried to? “

    Probably no amount of cash, but it seems that our solution of throwing them in prison for these crimes isn’t helpful and ends up making the problem worse.

  9. JustSaying

    “You cannot punish people because they may be doing it more frequently than they caught.”

    Of course, I’m not even remotely suggesting that we do. The question is whether he’s a habitual criminal for which the law calls for incarceration for more than the minor shoplifting would warrant.

    What was his “only more serious conviction 30 years ago”? How old was he then? How many times has he been involved in “petty theft stuff” since then? What were his most recent crimes? What is he doing with his life now? One would think that these questions matter when the DA is making the habitual criminal determination.

    PS–Would the rice theft have been a third strike if it had been a felony conviction?

    I’m interested in solutions, not just complaints about how this DA operates (or how all the lawyers operate) If jailing recidivists doesn’t work and buying them off with cash wouldn’t, what should we be doing instead? (Remembering, naturally, the argument that people in jails and prisons aren’t in our communities undertaking more lawbreaking.)

    Decriminalizing pot felonies for simple position and use would go a long way, given the numbers involved. What do you propose? I could be with you if we can get past blaming our DA for everything bad in the system.

  10. David M. Greenwald

    PS–Would the rice theft have been a third strike if it had been a felony conviction?

    No. Not under Prop 36 and probably not anyway, it seems like he should only have one strike based on the info I have.

  11. roger bockrath

    At $50,000./yr. for seven years to keep someone who steals $3.99 off the streets, it rather sounds like taxpayers are subsidizing the hell out of Nugget Markets. I knew a kid who stole a deodorant stick from the Davis Nugget and got roughed up pretty bad by store employees. Without any jail time he learned his lesson. Perhaps the immediacy of the results of his actions (i.e.. Pavlov) got through to him.

    With the prices charged by Nugget I would think that Nugget could absorb the cost of a few petty thefts better than the taxpayers of Yolo county can absorb hundreds of thousands of dollars to incarcerate petty criminals.

    I could be wrong, but I don’t think The Davis Food Co-op has nearly the theft problems that Nugget does.

  12. AdRemmer

    So, a law (PC 666 – Career/Habitual Criminals) enacted by the CA legislature (which originally did NOT allow for judicial discretion), in a system with multiple points where discretion may be utilized (Police, DA AND the Judge)…

    BTW, CA “Three Strikes” law mirrored WA state’s law, but included some non-violent offenses (Clearly DA is responsible for that, no?).

    Subsequently, 1996 (CA Sup. Crt Ruling) the law was amended, jurists have discretion, more priors are now required…

    is the DA’s problem? Really?

    Once again, DVG – blame the DA, long on opinion, short on solutions…

  13. Davis Progressive

    remmer: can we afford to house a petty theft for $40k or whatever the local rate is per year?

    why is the vanguard blaming the da? because the da is the only one asking that this be charged as a felony. i’m glad there are multiple points in the system that can protect us from ourselves, but if i neglect my child and cps has to step in and protect them, it’s still my fault that i neglected them. just because the judge and defense attorney saved the da, doesn’t exonerate the da here.

  14. medwoman

    “At $50,000./yr. for seven years to keep someone who steals $3.99 off the streets, it rather sounds like taxpayers are subsidizing the hell out of Nugget Markets.”

    So where do we believe that “justice” lies here ?
    If we are seeking fair restitution for Nugget, it would be far less expensive for the taxpayers simply to establish a fund to be drawn from for actually, or even estimated petty theft loss claims than to incarcerate the thief for 7 years.
    If we are seeking to protect the community from theft, how about an ankle bracelet or some device that alerts store personel when a habitual thief is on the premises ?
    If we are seeking retribution against an individual for this kind of behavior pattern, I give up on our collective moral compass. If we cannot see that an adult with this kind of pattern either has not or for some reason cannot learn some basic principle of self control, and desire to see them punished for 7 years to life for an act of lack of inhibition, then I wonder where the true evil lies.
    Are we trying to deter some other potential criminal from considering the theft of a less than $5.00 item. Do we believe that this will in any way affect the kind of impulsive and possibly compulsive behavior this likely represents ? Maybe some of you do. I do not.

  15. AdRemmer

    DG, your typical misrepresentation of the system’s issues and/or incorrect identification of the ‘problem’ is weak at best.

    If YOU or anyone wants to be the decision maker, here the DA, run.

    If YOU or anyone does not like what your legislators did spearhead the change you feel is required.

    If YOU or anyone else feels it costs too much money to house offenders become a change agent.

    Finally, your cps illustration is NOT even in the same universe…Puhleeease

  16. David M. Greenwald

    Someone else posted the CPS analogy. People have asked you basic questions, and you haven’t responded. I see no need to engage unless it’s a two-way street.

  17. Themis

    7 years for a petty crime! Forget about the cost of housing a criminal and seriously just think about it, 7 years for stealing less than $5 worth of food when so many people are hungry. What happened to humanity?

  18. Iggee

    The time wasted is also that this case should never have gone to court. The DA should offer a deal, for community service. That way they can pay their debt for their crime, not take up court time and money, and not take up space in a prison. Obviously they don’t have to take the deal and could choose to go to trial. Perhaps longer sentences of community service for repeat offenders. When drunk drivers get probation and community service, it’s astounding to me that the DA would choose to prosecute for such small petty theft in this manner.
    There was a guy who lived down the street from some friends in Davis, who drove into a light pole, did some damage, etc while drunk, there were witnesses, the police became involved, but he was never charged. I know from the friends that he bragged about not getting charged.
    The evidence was there, this guy is known to his neighbors as a habitual drunk driver (though the police wouldn’t know that and wouldn’t be able to convict on offenses they don’t know about, yet if they simply questioned his neighbors and associates…).
    It is disgusting to me that the police took the time to investigate, had compelling evidence, and he was never charged. the statute of limitations i don’t believe has expired, so he still could be charged but it’s been nearly a year, i dont’ imagine they will.

    yet we have the rice bowl case.
    and the candy bar case.

    you’d think the DA would be happy to look ‘tough on crime’ and prosecute a drunk driving case where substantial damage to city property occurred. luckily no one was hurt or killed. this time.

    yet this guy still drives around, free and with the clear message that he can continue to drink and drive.

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