Monday, December 01, 2008

Judge refuses to overlook some of defendant's crimes

By SUSAN HERENDEEN
sherendeen@modbee.com

last updated: March 08, 2008 12:59:55 AM

A Modesto man convicted of assaulting his girlfriend just six months after he was released from a program for sexually violent predators was sentenced to 25 years to life Friday, after a judge agreed that the 10-time felon is a per- fect candidate for California's "three strikes, you're out" law.

A sentencing hearing in Stanislaus County Superior Court was brief, because the victim was not on hand to give a statement and Buddy Ray Gary, 56, didn't see the point of commenting on his latest conviction.

"I ain't got nothing to say," Gary recently told a probation officer, according to a report filed with the court. "It don't matter. It ain't gonna change nothing anyway."

After a five-minute hearing, Gary was on his way to prison, probably for the rest of his life.

Deputy District Attorney Elizabeth Owen cited Gary's long criminal history and that he had been in custody for 30 of the past 38 years, as she asked for the maximum sentence.

Deputy Public Defender Bernard Fairfield noted the ambivalence of the victim, a homeless woman who addressed 12 jurors in a matter-of-fact manner months earlier, as he asked the court to disregard some of Gary's prior convictions.

Most of Gary's prior convictions occurred before the three strikes law was enacted in 1994, but the law can be applied retroactively.

Judge Hurl Johnson recalled the evidence presented at trial, about a two-time rapist bouncing his girlfriend's head off the asphalt while onlookers begged him to stop. That kind of violent assault, the judge said, shows Gary is a threat to the community.

"It would be an abuse of my discretion to strike one of these prior strikes," Johnson said.

A west Modesto resident called police about 1:10 a.m. on June 2, 2006. The authorities found Gary in an alley between Maple Street and Maze Boulevard, carrying Pennie Harrison, whose body was limp. He would not put her down until an officer drew his firearm, the authorities said.

Harrison was trembling and crying, and wet from being dropped in a gutter. Gary told investigators he was trying to stop Harrison from using drugs.

The district attorney's office charged Gary with assault, using his prior convictions as leverage to set his bail at $250,000, which kept him in custody as he awaited trial.

Twelve jurors -- who did not hear about Gary's prior convictions -- found him guilty at the close of a one-day trial in November.

Gary's most serious crimes were the rapes and robberies of two women, in 1972 and 1985. Both victims were attacked late at night in their Modesto homes. Gary stole $20 from an 83-year-old woman and $5 from a 66-year-old woman, according to court records.

He has been convicted of arson, assault with a deadly weapon, auto theft, burglary, grand theft, petty theft, public intoxication, receiving stolen property and robbery.

Gary was in prison on a parole violation for spousal battery when the state's sexually violent predator law went into effect. The 1996 law allows an involuntary commitment to a state hospital after an inmate completes his sentence.

He declined to participate in specialized counseling designed for sex offenders, according to court records, but he was recommitted four times on the recommendations of psychologists.

Officials can order further detention if two psychologists agree that a person has a diagnosed mental disorder that makes him likely to reoffend.

Gary was released from Atascadero State Hospital on Dec. 12, 2005, after psychologists split on his diagnosis. An initial pair of psychologists were divided on his diagnosis, a second pair split as well and a fifth psychologist said Gary did not meet the criteria for further commitment.

This time, Gary's long record, rather than his mental state, sealed his fate.

"If the three strikes law is not for Mr. Gary, it is for no one," Owen said.

Bee staff writer Susan Herendeen can be reached at sherendeen@modbee.com or 578-2338.

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