Theft Case at Center of ‘3 Strikes’ Controversy : Courts: Prosecutors say law will keep repeat offender off streets. Defense argues that life term is too severe for nonviolent offense.

Roosevelt C. McCowan tried to swipe 18 bottles of drugstore cologne--and could wind up spending the rest of his life in prison.

On March 8, McCowan entered a Sav-On store in Oxnard, picked up a backpack and loaded it with the fragrance bottles bearing labels from Pierre Cardin to Chaps.

Stopped by security before he got out the door, McCowan later pleaded guilty to petty theft and expected a short prison term.

Then prosecutors discovered something McCowan did not want them to see: his rap sheet.

McCowan had more than half a dozen felony convictions, ranging from residential burglary to robbery and assault with intent to commit murder.

McCowan, 52, eventually took back his plea, after prosecutors decided to employ California’s new “three strikes and you’re out” law against him.

Now, in a trial set to begin today, the accused cologne thief faces 25 years to life in prison.

The case is an example of the new three-strikes measure at its best, prosecutors say.

The law was designed to rid the streets of habitual offenders such as McCowan, who has a 32-year criminal record, they say.

“This is the case where you look at it and say, ‘Man, this is a good law,’ ” said Ventura County Deputy Dist. Atty. Brian S. Rafelson, who uncovered McCowan’s criminal past while digging through decades-old court files.

But defense attorneys say McCowan’s case exposes the cruel and unusually punitive nature of the three-strikes measure, adopted last March one day before McCowan was stopped by security officers at Sav-On.

“He’s charged with what is essentially a petty theft,” said McCowan’s lawyer, Deputy Public Defender Douglas W. Daily. “He didn’t even make off with anybody’s property. In spite of his criminal background, I don’t think anybody, even if they were guilty of that activity, should be subjected to that sort of penalty.”

McCowan is not the only defendant facing 25 years to life in prison for a nonviolent third felony. In courts across California, a wave of defendants accused of petty theft, drug offenses and other nonviolent crimes are facing prosecution under the three-strikes law, authorities say.

Take San Diego County, where 141 three-strikes cases have been filed. There, three out of every four defendants charged under the law are accused of nonviolent crimes, said Deputy Dist. Atty. Charles Nickel. “The substantial majority are non-serious felonies,” he added.

Gov. Pete Wilson signed the three-strikes bill after repeat offenders were charged in connection with several sensational crimes, most notably the kidnap-slaying of 12-year-old Polly Klaas of Petaluma. But even most crime fighters urged legislators to pass a bill that excluded nonviolent crimes.

“It was pretty overwhelming that the district attorneys believed a narrower approach was the more proper one,” Nickel said. “We thought the law cast too wide a net. But we lost, and D.A.s are not in a position to pick and choose the law we want.”

The new law requires a sentence of 25 years to life in prison for any felon who has committed two prior violent or serious felonies, crimes that range from burglary and arson to rape and murder.

In Ventura County, five defendants have been charged under three strikes, including two for nonviolent third offenses, said Deputy Dist. Atty. Patricia J. Kelliher, a felony division supervisor. But prosecutors have not applied the law consistently, critics say.

For example, Ventura County prosecutors refused to file a three-strikes allegation against a two-time robber who admitted cultivating seven marijuana plants--a felony.

But a spokesman says there were technical problems with the marijuana-cultivation case that precluded prosecution under three strikes.

A stocky man with a goatee and shaved head, McCowan believes authorities are making an example of him.

“I didn’t have no idea they would try to make a misdemeanor into something like this,” he lamented during a jailhouse interview. “They’re talking about 25 to life. Murder is only 26 to life, and second-degree murder is only 15 to life.”

McCowan said he believes the charge against him is unfair. For instance, his cellmate was convicted of four counts of petty theft--the same crime for which McCowan is charged. That inmate received 130 days in jail, McCowan said, shaking his head in disbelief.

McCowan admitted, however, that he is no stranger to the criminal-justice system.

Since 1964, he has been charged in 26 criminal cases and sentenced to 37 years of state prison time on various convictions. In that 30-year period, he has spent only about five years outside prison walls.

McCowan’s supporters trace his criminal activity to his tough childhood.

Born April 21, 1942, in the small Texas town of Brenham, near Houston, McCowan was raised by his grandmother, who was single. His mother, an unwed 15-year-old, died while giving birth to him, he said.

He did not meet his father until age 16. That was when his grandmother could no longer control him and sent him to Oakland to live with the man, Edwin Porter. Yet by that time, McCowan said, he was too undisciplined even for Porter’s strict parenting.

By 1959, McCowan was living in Oxnard with a maternal aunt. Here, he fathered four children--but two died--and married a woman who had a child of her own.

He said he turned to selling drugs to supplement his laborer’s wages and support his family. He also began using drugs and getting into trouble with the law. “All my crimes are drug-related,” McCowan said. “When I’m not on drugs, I’m scared to do a crime.”

In 1964, when he was 21, McCowan was sentenced to state prison for the first time for selling $25 worth of heroin to a plainclothes police officer.

He was released within a year, but was sent back for five more years after being accused of kidnaping and raping a Santa Barbara woman. He was never convicted in that case, but his parole was revoked nonetheless.

Paroled for a second time in 1970, he landed back in the penitentiary two years later for assault with intent to commit murder.

In that case, he clubbed a man with a stick after a card game, according to court records. McCowan says the man was high on drugs and hit him first. “That was a self-defense case,” he said.

McCowan believes that case marked him for a career behind bars. It was prosecuted by a young, ambitious deputy prosecutor named Michael D. Bradbury. Bradbury is now Ventura County’s top prosecutor, who McCowan claims has held a grudge since they first faced off in court.

Bradbury lets out a hearty laugh when told of McCowan’s claims.

“He probably feels we are out to get him, and we are. He’s a dangerous criminal,” said Bradbury, who promised to “chase him right back to Folsom” prison.

After being paroled again in 1977, McCowan was sent back to prison within months, after his fingerprint was found in an apartment that had been burglarized. Prosecutors are using that crime as his first strike.

McCowan spent the next 10 years in and out of prison--mostly in--until securing his release in 1987. Within months, he reverted back to his old habits. That October, he and an accomplice burst into an Oxnard motel room and robbed an oil-field worker at knifepoint, court records show.

The robbery conviction--which represented strike 2--kept him off the streets for six more years, until last October.

This time out, McCowan vowed to change his ways and took steps to do that. He re-established contact with his children--including son Lonnie McCowan, senior pastor at the Solid Rock Christian Center in Ventura.

He started attending the church, and even lectured youth members on the pitfalls of drugs and crime.

“They had a lot of questions for him,” recalled Lonnie McCowan, 35. “For some of them--I guess you call them (gang) wanna-bes--it was a real eye-opener. He hit them with straight talk. It was good for them to get a taste of reality.”

When one young tough seemed indifferent to the scare stories of the older man, McCowan described a prison rape for him. The boy changed his attitude.

Lonnie McCowan enjoyed having his father around.

“It was different because I didn’t know what it felt like to have a father,” he said. “What I found real interesting was, I would look at him and I could see me in him. I think boys miss something when they don’t see that in another man. There’s some type of legacy you see there.

“I asked him, ‘Are you going back?’ And he said, ‘Son, this is it. I’m never going back again. If I go back, I’d probably never make it out alive.’ ”

The three-strikes law went into effect at 2:45 p.m. March 7, when Wilson signed the bill and promised to turn “career criminals into career inmates.”

Roosevelt McCowan did not hear Wilson’s speech, nor did he know the three-strikes law had taken effect. He knew such legislation was in the works, but believed that it applied only to those with three prior violent or serious offenses.

McCowan wasn’t paying much attention to the news. He had gone back to using drugs. But this time it was crack cocaine and not his old standby--heroin.

“I smoked crack, and found out it was worse than heroin,” he said.

On Tuesday, March 8, McCowan was high on crack when he stepped off a city bus and walked into the Sav-On drugstore on Ventura Road in Oxnard, court records show.

He picked up a backpack and headed for the cosmetics area, loading 18 bottles of cologne valued at $340 into the bag, according to records.

Before he could get out the door, however, McCowan was stopped by a security guard and an off-duty police officer. His rights were read to him. But instead of being arrested, he was handed a citation and told to appear in court--a sign he took to mean that he was not in serious trouble.

Six weeks later, he pleaded guilty to petty theft in Ventura County Superior Court. As part of his plea, McCowan admitted that he had been convicted of petty theft twice before--which made his latest crime a felony. Prosecutors did not know about his prior felony convictions at the time, and McCowan was not about to tell them.

He expected a sentence of maybe three years when he showed up May 23 for sentencing. By then, though, prosecutors had learned more about him, including the fact that he had been convicted of at least one prior serious felony.

They charged him as a two-strike defendant, a provision of the new law that mandated that the judge double whatever sentence McCowan would get for felony petty theft.

Angered, McCowan rescinded his guilty plea and requested a preliminary hearing. That is when Deputy Dist. Atty. Rafelson combed through old court records and pieced together McCowan’s full criminal history.

“He’s got a rap sheet that would wrap around a house,” Bradbury said.

And that is why McCowan is being prosecuted as a three-strikes defendant, Bradbury said.

The man assigned to prosecute the case, Deputy Dist. Atty. William G. Karr, said he has no qualms about putting the accused cologne thief away for life.

“I think this is an appropriate three-strikes case,” Karr said. “It’s because of his record.”

McCowan’s supporters disagree, saying prosecutors are abusing their discretionary powers.

“I’m sad to hear the events have turned out like this,” said Lonnie McCowan. “It’s unfair. Here’s a person who didn’t get picked up for a violent crime. . . . If you use this law across the board, you’re going to throw away some diamonds that are just surrounded in some crud.”

Defense attorney Daily believes the three-strikes law should be stricken.

“I don’t think any civil person, if they really got to know what this case was all about, would agree that this is the proper punishment,” Daily said. “Obviously, if McCowan is guilty, he should pay a price. He’s got a very bad background, a long criminal history. But even in spite of that, you don’t send someone to prison for essentially the rest of his life for this type of behavior.”

Roosevelt McCowan said he’s all for the three-strikes law--for violent offenders.

“If a person is hurtin’ people, and he continues hurtin’ people, he should get what’s coming to him,” he said.

“In my case, I wasn’t trying to hurt nobody.”