Facing Third Strike, He Gets a Break

Prosecutors had hoped to put him away for life. But when he is sentenced here today in a weapons case, the man who set his son on fire in a Buena Park motel more than two decades ago could be just months away from completing his time.

Charles Rothenberg, 64, who legally changed his name to Charley Charles, had been charged under the three-strikes law. His qualifying priors in the eyes of prosecutors: the attempted murder and arson inflicted on then-6-year-old David that severely disfigured the boy.

But San Francisco Superior Court Judge Cynthia Lee ruled Thursday that the law compelled her to “strike” one prior strike because both convictions stemmed from a single act.

Detailing a criminal record that stretches back to 1958, Lee called Rothenberg a “pervasive malignance” whose “predilection is not to obey the law but rather to [flout] it as it suits his purposes.... He is exactly the kind of defendant the three-strikes law is designed to incarcerate.”

But Lee said the law left her no option but to reduce the strikes from his 1983 Orange County crimes to one because “they are, to put it in the vernacular, one ball of wax.”

The sentence Rothenberg will face today for being a felon in possession of a gun and ammunition ranges from 32 months to six years and eight months, according to the prosecution and defense. Under California law, he is compelled to serve 80% of that -- and he has been jailed since his arrest in the summer of 2001.

That means he can complete his maximum sentence in a little more than a year. However, Rothenberg still awaits trial on separate charges of check and credit card fraud.

“We are, of course, disappointed, but we will persevere and see if there is something we can think of or do to turn this thing around,” said Assistant Dist. Atty. Cheryl Matthews.

Matthews said an appeal of the judge’s decision was possible but ultimately up to Dist. Atty. Kamala Harris, who was not available for comment Thursday.

Deputy Public Defender Gabriel Bassan declined to comment on the ruling.

During the trial, he portrayed his client as a remorseful man eager for a “fresh start” who purchased a weapon and ammunition illegally only to protect himself from pervasive threats from vigilantes who labeled him “baby burner.”

A volunteer jail minister and a Christian woman who reached out to Rothenberg 15 years ago after reading his story each spoke on his behalf Thursday.

“I’ve come to know him as a very caring and concerned person,” said Raymond McKeon, a volunteer for the San Francisco Archdiocese’s detention ministry.

But Matthews painted a different picture. Rothenberg, she said, lied readily, forged documents and used his crime against his son to justify his more recent illegal acts.

Lee agreed, noting a list of felony convictions in four states for attempted robbery, larceny, weapons possession, forgery and more. All came before Rothenberg gave David a sleeping pill, poured kerosene on the bed and lighted the Buena Park motel room on fire in 1983 during a custody dispute with his ex-wife.

“His criminal history appears to be unremitting and unrelenting,” Lee said.

David, now living out of state, has expressed continued fear of his father but declined to testify in this case, Matthews said.