The sign read “Half Rotisserie Chicken — $7.99”
On June 1, 2019, 43-year-old Mario Morataya stepped into the Super A Foods while his wife waited outside with their six-month-old baby. Morataya worked a minimum wage job at the recycling center, but it wasn’t nearly enough to pay his family’s bills. His wife was hungry. He was hungry.
The rotisserie chicken glistened on its heating tray.
According to loss prevention agent Adrian Murphy, Morataya looked to the left and looked to the right, then shoved the half chicken in his sweatpants. While holding the concealed bird in place, Morataya milled through the front aisles and shuffled out the automated sliding doors. Murphy followed him into the parking lot and shouted for him to stop. Morataya walked faster. Murphy placed his hand on the man’s shoulder. Morataya turned and kicked Murphy in the leg. Murphy wrestled Morataya to the ground, cuffed him and called the cops.
The half rotisserie chicken fell from Morataya’s waistband and rolled away on the black asphalt.
It’s now June 23, almost two months since Morataya’s arrest, and his preliminary hearing in Department 35 is underway. Judge Dorothy Reyes presides. She has a frizzy bob and the demeanor of an exhausted schoolmarm. The walls of her courtroom are adorned with neon pink signs that admonish the occupants of the gallery.
“ATTENTION TURN OFF ALL BEEPERS AND ALARM WATCHES.”
“REMAIN SEATED AND QUIET IN COURT.”
“NO GUM CHEWING. YES THIS INCLUDES LAW ENFORCEMENT.”
At the counsel’s table, Morataya is slumped in a chair dressed in a mint green inmate jumpsuit, his hands restrained behind his back in metal cuffs. Morataya’s hair is ashy brown. He has bushy eyebrows and leathery skin. Throughout the proceedings, Morataya is aided by Spanish interpreter, Karen Stevens, a swan-like woman with shiny white hair and a long neck. As he listens to Stevens’ murmured translations, Morataya’s face remains impassive, his eyes vacant.
For the crime of stealing the $7.99 half rotisserie chicken and kicking the loss prevention agent, Morataya was charged with the felony offense of robbery.
California penal code defines robbery as the “taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” The use of force or fear is key because it is what differentiates robbery from the lesser charge of theft.
Here’s a list of crimes considered robbery:
— A masked man points a gun at a woman and threatens to shoot unless she hands over her purse. He takes the bag and flees.
— A woman drugs her boyfriend with a roofie and steals his wallet.
— A man breaks into a suburban home while residents are inside and threatens them with a knife in order to steal their TV.
— A man and a woman hold up a bank using fake guns.
This is not an extensive list, but it’s accurate, and it’s what comes to mind when I think of the word “robbery.” I do not think of stealing a half rotisserie chicken.
Being charged with robbery means that Morataya could face two to five years in prison, up to $10,000 in fines, and formal probation.
The DA’s office has prosecutorial discretion, meaning that prosecutors have the authority to decide whether or not to charge a defendant and which charges to file. There is a legal precedent for Morataya’s charges: a 1983 California case entitled People vs. Estes, in which Curtis Estes was found guilty of robbery after he stole a coat from Sears and swung a knife at a security guard that tried to stop him. For that reason, crimes like Morataya’s are sometimes referred to as “Estes Robberies.” But that’s just a precedent. Lawyers and judges don’t make laws; they interpret them. And while they often use precedents, or previous judgments, to inform their own, they are by no means bound to them.
In other words, it didn’t have to be this way.
A more lenient prosecutor might have charged Morataya with petty theft and resisting arrest — two misdemeanors that are both punishable by a fine of less than $1,000 and no more than one year in jail.
An even more forgiving prosecutor might have charged Morataya with an infraction because the cost of the chicken was less than $50, a charge that would have resulted in only a monetary fee of less than $250.
The most charitable prosecutor might have declined to prosecute the case entirely.
Instead, Morataya’s situation rapidly deteriorated after his arrest.
Because of his charges, Morataya’s bail was $20,000. Bail can be paid outright if you have the cash in hand or it be paid through a bail bonds company. Morataya’s impoverished family didn’t have the money to pay the bail outright so instead they went to Bad Boys Bail Bonds, a company famous for their funky late-night commercials and poppy slogan “Cause your mama wants you home.”™ In California the maximum fee for a bail bond is 10%, meaning that if you pay a bonds company 10% of your bail then they will pay the government the entire sum of money required for your release. In order to get her husband out of jail, Morataya’s wife begged her extended family to pay the $2,000 nonrefundable fee for a bond.
Once the case is closed, the bonds company gets their money back, but they keep your fee. This means that defendants who are found not guilty or whose charges are dropped can still be out thousands of dollars because of their bail bonds. In Morataya’s case it means that even if his case were dismissed, his family would still be out thousands of dollars that they could barely afford.
None of this financial burden would have been imposed on Morataya’s family if cash bail had been eliminated.
And it almost was.
In August 2018, then-California Governor Jerry Brown passed a sweeping reform bill to eliminate cash bail. The landmark legislation would have made California the first state to end cash bail after an appellate court deemed it unconstitutional. According to Brown, cash bail was biased towards wealthy individuals who could pay for their freedom while poor people were forced to remain in custody. In place of cash bail, local courts would decide who to keep in custody until trial based on an algorithm. For most nonviolent misdemeanors, defendants would be released while others would gain their freedom on the condition that they make frequent check-ins with law enforcement officers or wear a GPS tracking device. Only serious offenders would be required to stay in custody.
The bill was supposed to go into effect in 2019, but the overhaul was put on hold due to a statewide referendum backed by bail bonds agencies who raised over $3 million in their campaign. Bail agencies sowed fear in the public that the bill would release violent offenders to the street, but their biggest concern was blatantly obvious: the bill would obliterate their business. Now voters will decide the fate of the bill, Senate Bill 10, in November 2020.
Without bail reform, the Morataya family was forced to scrape together $2,000 for Morataya’s release. Then Morataya’s wife and six-month-old baby got sick with the same infectious disease, and Morataya missed his court date for his preliminary hearing on June 17. He then made the mistake of avoiding his public defender’s calls because he feared facing the consequences. As a result, Judge Reyes issued a bench warrant in the amount of $50,000 for Morataya’s arrest and his bail was forfeited, meaning that the bonds company wouldn’t get $20,000 back unless Morataya promptly returned to court.
Morataya was arrested on August 11. The bench warrant was recalled, and Morataya’s bail was reinstated at $50,000. He could be released if a $5,000 fee was paid for another bail bond, but his family’s resources had already been drained. So, he remained incarcerated. Morataya’s time spent in jail is significant not just because of the hardship of the experience, but also because his minimum-wage job at the recycling center was the primary source of income supporting his wife and child. In Morataya’s absence, the family fails to receive approximately $570 a week. They also suffer from the lack of a caretaker, a husband, and a father.
Even before Morataya’s preliminary trial begins, his family has lost $3,140 in bail fees and anticipated income. If he is given the minimum two-year mandatory prison sentence for robbery then that number will increase to a loss of approximately $60,140.
That’s about 7,527 half rotisserie chickens.
Today, instead of being with his family, Morataya is in court in his mint green men’s jail jumpsuit.
Morataya’s attorney is Deputy Public Defender Alex Kirkpatrick, a fresh-faced man in a sleek suit with minimal pockets. He’s passionate and has a shiny youthful optimism. The preliminary hearing is brief. Deputy District Attorney Vira Samouhi rests after calling only one witness, the loss prevention officer Adrian Murphy. Kirkpatrick rests without calling any witnesses. He asks Reyes to dismiss the case. This is not the routine defense — the obligatory motion to dismiss due to insufficiency of evidence. Kirkpatrick chronicles his client’s suffering: the family’s illnesses, the poverty, and the hunger that led Morataya to steal the half chicken. Looking up at Reyes’ furrowed brow, Kirkpatrick pleads:
“This is a case that warrants humanity.”
Reyes denies the motion to dismiss. Her words are bland and pragmatic — the picture of bureaucracy.
Kirkpatrick persists. He asks that his client be released on “O.R.” (own recognizance) which means that he would be released from jail without having to pay bail given the expectation that he is responsible enough to show up to his next court date. Reyes also denies this request, and Morataya is ushered out of the courtroom to be transported back to jail.
Morataya’s next court date is scheduled for October 8. The calendar labels the event as “PRET-RIAL HEARING.” It’s possible, even likely, that Morataya will be offered and accept a plea deal in the coming weeks. According to the National Association of Criminal Defense Lawyers, 97% of criminal cases are resolved by plea bargains.
The problem is that, for Morataya, any plea at this point won’t actually be a bargain. Think of the charges as a staircase, descending from felony, to misdemeanor, to infraction, to dropping the charges entirely. Because the DA’s office charged him with a felony they started at the top of the stairs — a best-case scenario probably involves a plea bargain that steps the charge down to a misdemeanor. But imagine if the offense was first filed as a misdemeanor. In that case Morataya might have a chance at a plea bargain that stepped down the charge to an infraction. Under those circumstances he would only pay fines and serve no further jail time.
Whatever happens now, the fact remains that Morataya’s life has been tragically interrupted. All family meals, sunset strolls, and weekend naps have been deferred. All intimate moments with his wife are now on hold — the touch of her hand, the kiss of her lips, the warmth of her presence in bed. Whatever dreams he had of raising his child have been obstructed by what we call justice.
All this for a $7.99 half rotisserie chicken.
California Penal Code section 211 — robbery
People v. CURTIS DALE ESTES [Crim. No. 23762. Court of Appeals of California, First Appellate District, Division Five. September 15, 1983]
California Penal Code section 148 (a) – resisting arrest
California Penal Code section 488 – petty theft (misdemeanor)
California Penal Code section 490.1 – petty theft (infraction)
Bad Boys Bail Bonds –www.badboysbailbonds.com
National Association of Criminal Defense Lawyers: The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It