Felony or Misdemeanor? Record Marked With Inconsistencies : Charges: Two cases illustrate the disparity between the way some crimes are prosecuted.

Orange County is a place where stealing a racing bike from a garage can turn out to be a felony, while the theft of 10 tanker loads of gasoline worth almost $100,000 can end up as a misdemeanor.

The disparate treatment of the two crimes shows the inconsistency that can occur across the county when felony complaints are evaluated by the Orange County district attorney’s office. The two cases were found during a search of court cases by The Times and interviews with law enforcement officials.

The district attorney said that there is nothing incongruous about the handling of the two thefts, because the critical factor in determining the appropriate charges to file is the strength of the evidence.

“It does not matter what the amount lost is,” said Assistant Dist. Atty. Brent F. Romney, a high-ranking member of the district attorney’s office. “It is what you think you can prove in court. There are cases with far lower amounts lost than the gas theft, but they can still qualify for felony treatment.”

In the bicycle theft, Daniel Lee Gonzales, 27, was arrested by Irvine police in March, 1991, after he was found in possession of a stolen racing bike, worth about $1,000. He was later convicted of a felony in Municipal Court in Newport Beach and sent to prison.

On the evening of March 13, attorney Emroy L. Watson noticed that his bicycle was missing from the garage of his Irvine home. He ran into an alley behind his house and spotted a young man standing near a pickup. In the truck’s bed was the bike.

When Watson tried to reclaim his property, another man confronted him with a pistol and demanded money, police said. The gunman fled empty-handed, however.

Later that night, police found Gonzales with the stolen bicycle and arrested him on suspicion of armed robbery and first-degree burglary. Worried that they couldn’t prove armed robbery, Orange County prosecutors charged Gonzales with burglary and possession of stolen property, both felonies.

But prosecutors dropped the burglary charge after Watson failed to pick Gonzales’ picture out of a photo lineup. Gonzales then negotiated a deal with the district attorney and agreed to plead guilty to possession of stolen property.

The prosecutor stated in the court file that the burglary charge could not be proven, and that the plea was being taken because Gonzales decided early in the case to admit he was in possession of Watson’s bicycle.

Possession of stolen property carries a maximum penalty of three years in state prison. Gonzales received 16 months, the low term.

In contrast, Bilal Naji (William) Khatib, now 46, stole $97,575 worth of gasoline from Atlantic Richfield Corp. and Southern Counties Oil Co. two years ago. He ended up being charged with three misdemeanors after the Orange County district attorney refused to file a felony case.

Southern Counties Oil, which is based in Orange, lost about $25,000 and Arco about $72,000 in the theft. Executives for both companies say the money has never been recovered.

One of the victims, Richard Becktel, the vice president of Southern Counties Oil, says he will never understand why the district attorney’s office refused to file felony charges.

“They should have sought this case as a felony. A misdemeanor is nothing. This guy didn’t pop open a beer in a park. This was a premeditated crime,” Becktel said. “As far as I’m concerned, add Dist. Atty. Mike Capizzi’s name to the list of the weak-kneed.”

Defending his office’s handling of the case, Romney said an experienced fraud prosecutor evaluated the matter and decided a crime could not be proven beyond a reasonable doubt to a jury.

“There was some concern that it was a civil case and not a criminal matter,” Romney said. “If we had thought the case was there, we would have filed a felony. We even declined to file a misdemeanor. We just did not think there was a case.”

But somebody else did--the Anaheim city attorney, who prosecutes only misdemeanor offenses committed in Anaheim.

The office filed three misdemeanor charges--grand theft for Arco’s $72,000 loss and two counts of writing bad checks with intent to defraud Southern Counties Oil. A jury convicted Khatib on all counts in Fullerton’s Municipal Court in November, 1994.

According to case records, Khatib ran an Arco Smog Pro station at 3901 E. Riverdale St. in Anaheim. Over a six-day period ending Oct. 3, 1993, Arco and Southern Counties Oil shipped 10 loads of gasoline to the franchise.

Before taking the deliveries, Khatib ordered his bank to stop honoring bills submitted by Arco. He also issued worthless checks to Southern Counties for its shipments.

The city attorney alleged that Khatib, who was angry about Arco’s efforts to cancel his franchise, wanted to quickly sell the gasoline to motorists the weekend after the deliveries were made and make off with the proceeds.

Anaheim police initially asked the Orange County district attorney’s office to file felony charges in the case. But prosecutors declined.

Although guidelines from the California District Attorneys Assn. recommend that felony charges be filed in theft cases where the loss is $2,000 or more, Anaheim police had little recourse but to ask their city attorney to file misdemeanor charges, usually reserved for thefts under $400.

Had Khatib been charged with felony grand theft, he could have faced a 16-month prison sentence, or a jail term with felony probation, which could have landed him in prison if he violated his probation’s terms.

Though he did not know why the district attorney declined the case, Khatib’s defense attorney, Keith C. Monroe, said a felony charge could have readily been filed, given the magnitude of the dollar losses.

Romney, however, saw no problem with the district attorney’s rejection of the case. “Reasonable people can differ on what is the probability of conviction,” he said. “We just can’t file cases willy-nilly. I might file a case that someone else would not.”

As it stands today, Khatib may never see the inside of a jail cell, or pay a cent in restitution. The day the jury returned its guilty verdict, Khatib, who was free on his own recognizance, was nowhere to be found. He is rumored to be in Florida.