www.courttv.com/news/2005/0127/threestrikes_ap.htmlProsecutor fights to apply 'three-strikes' law to man who set son on fire
SAN FRANCISCO (AP) — If she were a prosecutor anywhere else in California, San Francisco District Attorney Kamala Harris wouldn't get a second look for using the state's tough "three-strikes" law against a man who spent more than six years in prison after setting his 6-year-old son on fire.
But when Charley Charles, 64, goes on trial Thursday on weapons-possession charges that could send him to prison for life, Harris will battle the liberal social climate here in one of the nation's most tolerant cities.
Charles' case is also watched because of his past. He was named Charles Rothenberg when he soaked his son with kerosene and set him ablaze in a Southern California motel amid a custody dispute with the boy's mother. The boy, David, survived but suffered third-degree burns over 90 percent of his body.
Charles was convicted of attempted murder and arson. Those convictions led San Francisco prosecutors to invoke the state's 1994 three-strikes sentencing law when they decided in 2001 to pursue the weapons charges against Charles, which makes him eligible for a life sentence if convicted on the current felony charges.
When she won election in 2003, Harris vowed to invoke the three-strikes law only for repeat offenders accused of violent or serious crimes such as rape, murder and kidnapping. A felon in possession of a handgun and ammunition does not fit the legal definition of a serious or violent criminal.
Without the three-strikes charge on his latest alleged offenses, Charles faced a maximum 10 years in prison if convicted. Prosecutors have the discretion to charge any felony as a third strike if a defendant has been convicted of two serious or violent felonies.
Harris said there is no contradiction between her pledge and her decision to continue with the three-strikes charge she inherited in the Charles case.
"The sentence that we were seeking, if the jury should come back guilty, is completely appropriate considering who Mr. Rothenberg is," Harris said. Charles' "prior offenses are so significant and so serious and so violent in the way they were committed" that his latest case cries out for maximum justice.
Her choice probably would go unnoticed in any of the state's 57 other counties, where the three-strikes measure is often used to send people to prison for life for such relatively minor offenses as shoplifting. But not in San Francisco, where the mayor sanctioned 4,000 gay marriages before the state Supreme Court overturned them last year.
When Harris, 40, was inaugurated a year ago, she was received by a resounding applause when she said: "I will only use three strikes when the third strike is a serious or violent felony. I will never charge the death penalty."
In her opinion, weapons violations are serious charges, and she said she always maintained that her policy would remain flexible.
"When you talk about crimes that involve guns, certain sex offenses, while they're not defined by the Penal Code as serious, they are serious and should be considered when crafting and determining what is the appropriate punishment," Harris said.
In 1983, Charles took David to a motel in the Los Angeles suburb of Buena Park and gave the boy a sleeping pill. He then doused the boy with kerosene, set him on fire and left. He said he was distraught over losing the boy to his estranged wife in a custody battle.
He was convicted of attempted murder, arson and other charges and received 13 years in prison, the maximum penalty at the time when sentences were more lenient than today.
He was released for good behavior after serving 6 1/2 years.
Charles now faces nine counts, ranging from possession of a revolver and ammunition at his San Francisco apartment to allegations that he withdrew money from cash machines using other people's ATM cards.
Gabriel Bassan, Charles' attorney, declined comment. But in arguing for the strike charges to be dismissed, he said his client possessed the .38-caliber handgun while fearing for his safety because of his past convictions.
Jurors impaneled Wednesday will only decide the weapons accusations. Another jury will hear the financial fraud cases later.
Rory Little, a criminal law professor at Hastings College of the Law, said Harris already has upheld her capital punishment promises by refusing to seek the death penalty for a man who killed a police officer.
Little said it was too early in Harris' four-year term to speculate how San Francisco voters may react to her decision, especially given Charles' past.
"She's in a tough position no matter what she does," Little said.
