The Wrong Turn

Another Legal Fiction Story from the Bray Building Series by Justice James Marchiano, (Ret.)

Justice James Marchiano (Ret.)

In this most recent addition to “Stories from the Bray Building,” Judge Carlton struggles with a mandatory sentencing statute which challenges the principle of proportional justice.


Twenty-six year old Billy Campbell made several wrong turns in his life.  But the fateful one he took in 1998 redirected him onto a life-altering path into Judge Raymond Carlton’s court room in the Bray Building.  Campbell suffered from Raynaud’s disease, a vascular disorder that left the tips of his fingers with loss of touch and in severe pain.  A high school dropout, he worked sporadically and lived in a low-income area of Tracy with his nineteen-year old girlfriend Anita, who was then eight months pregnant.  Campbell had previously encountered the justice system through shop-lifting from a Walmart store, temper flare-ups, and public intoxication on a sidewalk in front of a Tracy bar.  Each time he received a suspended sentence with short probation time.

On a hot summer afternoon in 1998, Anita complained of feeling uncomfortable and bored, so Billy offered to take her for a relaxing ride in his 1990 red Toyota pickup.  As they drove down the Altamont Pass out of San Joaquin County on Highway 580 toward an East Bay park in Dublin, Campbell noticed the gas gauge on his truck registered almost on empty, but he had little cash to buy gas. When he passed Pleasanton in Alameda County, he concocted a plan to get some easy money for gas. He recalled seeing newspaper recycling bins at the back of a San Ramon strip mall.  It would be easy to steal enough newspapers in the bed of the truck to take to a nearby recycling center for gas money.  Billy Campbell made an ill-conceived right turn onto Highway 680, heading north across the Contra Costa County line, toward the recycling bins.  It would turn out to be yet another wrong turn in his life.

He backed up his truck alongside the bins and filled the bed with enormous piles of stacked newspapers and magazines and prepared to drive away.  Suddenly a large semi-truck and trailer pulled up and blocked his pickup from leaving. Sadhu Singh placed his truck immediately in front of Billy’s Toyota pickup so that it was wedged in, and unable to move forward or backwards.  Singh looked down from his cab, told Campbell he owned the recycling bin, and ordered him to put the papers back.  He called Campbell a thief.  An angry Campbell reached into his glove compartment, pulled out an unloaded revolver, and yelled at Singh to get out of the way or he would “blow his fuckin head off.” Frightened, Singh backed his rig away, allowing Campbell to speed off with Anita and the load of papers to the nearby recycling center.

Singh scribbled down a partial license number for the Toyota and called the San Ramon police, who took a report about the incident.  In the meantime, Campbell received $8.40 for the papers, enough for five gallons of gasoline for the return trip to Tracy.  A week later Billy Campbell was arrested for robbery, after a detective doggedly used a DMV computer base to ascertain the owner of the red Toyota pickup.  Campbell was transported to Martinez and booked into the Contra Costa County detention facility and asked for the assistance of a public defender.

Campbell told his public defender he was remorseful, needed medical treatment for his Raynaud’s, would pay restitution, and expected to receive probation or short county jail time.  Anita recently had given birth to a baby son.  Like a bearer of bad news, his public defender explained that Campbell did not commit the crime in Tracy or Dublin, but in Contra Costa County where the District Attorney did not plea bargain on any robbery when a gun was used.  Campbell made the wrong turn into Contra Costa County where the D.A. invariably followed the penal code for robbery using a gun, which carried a two to four year state prison sentence term.  And the use of a gun, even if unloaded, under the penal code at that time, mandated an additional ten years of state prison time.  A different turn into Alameda County or San Joaquin County might have resulted in a different outcome.

Judge Raymond Carlton attended the Judicial College to study Criminal Trials Case Management in preparation for his reassignment to criminal trials.  Sentencing was at times a byzantine morass of inconsistent punishments driven by the legislature’s ad hoc response to crime.

Penal Code section 1385 gives a judge broad discretion in the interest of justice to strike some charging allegations involving enhancements and otherwise make an ineligible accused eligible for supervised probation. In response to complaints about the use of section 1385, the legislature enacted laws specifically preventing its use for certain crimes. Penal Code section 1203.06, involving the use of a gun to commit a robbery, was such a section, which prevented a judge from overriding the prosecutor’s charging allegations.  In 1979, in a contentious, deeply divided, 4 to 3 California Supreme Court decision, People v. Tanner held the trial court must impose the enhancement and could not strike the gun use allegations in the interest of justice. In 1997, the legislature added Penal Code section 12022.53, mandating an additional ten years in state prison for the use of a gun in the commission of a robbery and prevented the trial court from striking the enhancement.

However, if brandishing a firearm were charged without any enhancement, the crime could be treated as a misdemeanor with county jail time and supervised probation imposed.   The prosecutor argued the actions amounted to more than merely brandishing a firearm, rather the use of a gun to take the newspapers by fear.  Despite extensive efforts by the pretrial disposition judge, the case, spinning out of control, was not resolved and headed for a jury trial before Judge Carlton.

In law school Judge Carlton studied legal history, which included a discussion of the influential work by criminologist Cesare Beccaria, Crimes and Punishments.   Beccaria espoused a utilitarian model of making the punishment fit the crime, by looking at all aspects of the charged offense, the background of the defendant, the nature of the crime, effects on the victim and society, and the promotion of deterrence.  Judge Carlton noted Beccaria’s emphasis on proportional justice that reconciles retribution, restitution, and punishment to achieve a just sentence. This case challenged those fundamental principles.

The jury trial commenced before Judge Carlton.  The prosecutor presented a strong witness in Sadhu Singh, who vividly described what happened, and gave a description of the pickup truck and its driver, which closely matched the accused.  A detective obtained a receipt for $8.40 for newspapers from a nearby recycling center, recorded around the time of Campbell’s flight from the scene. The attendant at the recycling center remembered a nervous, perspiring driver of a red pickup with newspapers piled high in the bin, anxious to conclude the transaction and leave quickly.  When arrested, Campbell was wearing a black Raiders cap backwards on his head, a cap described by Singh. The case fit neatly like a hand in a glove.

The public defender tried to raise a cloud of reasonable doubt by vigorous cross-examination, first of Singh, who was under stress and fear during the confrontation and may have been mistaken in his identification.  His view of Campbell’s head was partially blocked by a sports cap.  Then, the detective conceded he stopped looking for other possible Toyota pickup truck licenses as soon as the partial matched Campbell’s truck.  He agreed there might be other older Toyota pickups with the same beginning sequence of letters and numbers.  In his cross-examination, defense counsel revealed through a police officer that Campbell was booked into jail with Raynaud’s, an illness which would make his picking up piles of newspapers difficult and painful.  The gun found in Campbell’s truck was unloaded, somewhat contradicting Campbell’s alleged statement to Singh about threatening to shoot him.

The defendant did not testify.  His lawyer could not knowingly put him on the stand to give false testimony.  Campbell, moreover, was angry about the trial, and under rigorous cross-examination would be a belligerent, obviously hostile witness, and lacked the mental acumen to parry an experienced prosecutor’s questions.  He was likely to make another wrong turn on the witness stand.

Closing arguments went as expected.  The jury returned a guilty verdict after three hours of deliberations.  Judge Carlton ordered a sentencing report and set the matter for sentencing.

California Rule of Court 4.410 sets forth the objectives of sentencing, embodies much of Beccaria’s model, and highlights community based correction programs.  Judge Carlton also reviewed Penal Code section 1170(a) (1,) which calls for sentences that are “proportionate to the seriousness of the offense,” when the sentence involves incarceration.  But the statute requiring a state prison sentence under the circumstances was unequivocal.  Torn by competing objectives, the judge struggled with imposing the sentence. So after an emotional sentencing hearing that covered Billy Campbell’s background, including his debilitating illness, the reasons for the crime, and a host of other mitigating factors, Judge Carlton was compelled to sentence Billy Campbell to the lower term of two years for robbery and an additional ten years in state prison for use of a gun, with credits for pretrial jail time.  Campbell cursed everyone under his breath as he was led away in handcuffs to be delivered to state prison.

For nearly forty years, the rigid, mandatory prison sentence for use of a gun remained in effect, as the number of state prisoners increased from 50,000 to 130,000.  The enhancement punishment for use of a gun was increased to ten years in state prison, just before ill-fated Billy Campbell stole the newspapers.  After Judge Carlton retired, he strongly supported a 2017 legislative amendment, which finally gave trial judges the discretion to strike the enhancement in the interest of justice in appropriate cases.  He never could forget the Campbell case and the futile quest for proportional justice.


Justice James Marchiano (Ret.) was a trial lawyer until appointed to the Superior Court of Contra Costa County in 1988, where he served for ten years, primarily as a civil and criminal trial judge. In 1998, he was appointed to the California Court of Appeal, First District, Division One, where he served as a Presiding Justice, for 15 years. This story is another part of Stories from the Bray Building series of fictionalized court cases based on real cases that can be found at www.cccba.org/attorney/cclawyer-articles/.

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