Try at BB Gun Robbery Nets 35 to Life


Three strikes laws are designed to take career criminals off the streets. They apply even when a robber uses an unloaded BB gun in an attempt to hold up a check cashing store.
The manager of a California check cashing store arrived just before the store was scheduled to open. A man, whose first name was Charles, approached the manager outside the store and she told him the store opened in 25 minutes.
Charles pointed a gun at the manager, told her it was a robbery, and to open the door and deactivate the alarm.
When she deactivated the alarm, an alert was sent to the police. After the manager told Charles she had to wait 11 minutes for the safe to open, Charles began to get nervous and told her he would kill her if she called the police.
Police Arrive
When the police arrived, they asked the manager if everything was all right, and she said no.
Charles threw the gun under a desk and told the police that he was the manager’s friend. The manager then told the police about the gun. The police found a pair of leather gloves and what turned out to be an unloaded BB gun.
Charles was arrested, and a police officer interviewed him at the city jail. After being advised of his Miranda rights, Charles agreed to speak with the officer. Charles admitted that he tried to rob the check cashing store by using his BB gun to intimidate the manager.
A police detective taped an interview with Charles during which he claimed that he did not show the gun to the manager and that he only pulled it out when the police came.
Charles was charged with attempted second-degree robbery, with the allegation that he personally used a dangerous and deadly weapon within the meaning of the California Penal Code.
It was further alleged that Charles had three prior convictions. Those three convictions constituted three strikes within the meaning of the state’s “Three Strikes” law.
Before the trial, Charles moved to dismiss his prior strikes, arguing that the convictions were sustained long ago, and citing depression, childhood problems and attempts at rehabilitation. The court held a hearing and denied the motion.
Guilty of One Crime Only
The court granted Charles’s motion to split the allegations of prior convictions, and the robbery case went to a jury trial.
The jury found Charles guilty of attempted robbery but didn’t convict him of the allegation that he used a dangerous and deadly weapon.
After being found guilty on the attempted robbery charge, Charles waived his right to a court trial on the allegations of the three prior convictions and admitted to all three convictions.
Again Asks Dismissal
His defense counsel again asked the court to dismiss the prior strikes, arguing that the jury did not agree with the allegation that Charles had used a dangerous weapon and that the BB gun he used was not loaded.
He further argued that Charles did not touch or harm the manager in any way and that he did not attempt to escape when the police arrived, but instead cooperated and gave a detailed confession.
The defense counsel argued that Charles’s prior convictions did not involve any injury, and that even without the prior strikes, Charles would be subject to a lengthy sentence.
The court denied the motion, reasoning that the BB gun looked like a real gun, Charles’s prior convictions were serious or violent, and that he was the type of recidivist contemplated by the Three Strikes law. The court found the allegations of prior convictions were true.
The court then denied probation and imposed an indeterminate term of 25 years to life, plus 5 year consecutive terms for the two serious felony prior convictions, for a total of 35 years to life.
Charles then appealed to the California Court of Appeals. He claimed that the trial court abused its discretion in denying his motion to dismiss his prior strikes.
Charles argued that two of his three prior strikes stemmed from one incident 11 years ago, that the other strike was 15 years old, and that he would still receive a lengthy sentence if the court granted his motion.
He further pointed to his use of a BB gun to commit the current offense and his personal history to support his contention. Charles also argued that the trial court’s denial of his motion violated the due process clause of the Federal Constitution.
Abuse of Discretion
A trial court’s decision to not dismiss or strike a prior serious and/or violent felony conviction allegation under the Penal Code is reviewed for abuse of discretion by an Appeals Court.
A trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.
Because, said the Appeals Court, the circumstances must be “extraordinary” by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack, the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even “more extraordinary.”
Charles, said the Appeals Court, had the burden to show that the sentencing decision was irrational or arbitrary
In determining whether to dismiss a prior felony conviction, the trial court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character and prospects, the defendant may be deemed partly or entirely outside the scheme’s spirit and thus should be treated as though he had not previously been convicted of one or more serious or violent felonies.

Posted in Fall 2011.