Ex-con fessed up to the gun charge. But the sentence left the judge and the DA feuding

When Damon Rogers got caught with a gun this year that he shouldn’t have because of his rape convictions two decades ago, he quickly accepted responsibility in Fresno County Superior Court.

Given Rodgers’ speedy no-contest plea, Judge Wayne Ellison said a life sentence for the 41-year-old man would be unfair. Ellison suggested he was leaning toward a six-year prison sentence.

But that suggestion touched off an unusual spat between Ellison and the Fresno County District Attorney’s office, which quickly blasted the judge in a news release. The clash spilled into court Tuesday with the judge accusing prosecutors of getting their facts wrong, and the District Attorney’s Office firing back that its account was “absolutely” accurate.

The courthouse clash grew out of the unusual circumstances surrounding Rodgers, a convicted rapist who got a job as a security guard and ended up getting assigned to guard a rape crisis center near downtown Fresno.

In 1997, Rodgers was convicted in Madera County Superior Court of two counts of forcible rape and one count of assault with intent to commit rape. He was sentenced to 16 years in prison.

Released in 2011, Rodgers found a job as a security guard after filling out an application to the state of California. In it, he said he was a convicted felon and was fingerprinted, his current lawyer, Maribel Romo, told Ellison. But Rodgers also lied by writing a different middle name on the application, prosecutor Jamie Kalebjian said.

In April this year, Rodgers was assigned to guard the Rape Counseling Services on Blackstone Avenue, south of Belmont Avenue. Three months later, police learned that Rodgers had purchased a gun off the street, court records say. On July 27, police arrested him after they found him with a loaded .45 caliber handgun, a baton, pepper spray and a concealed knife.

District Attorney Lisa Smittcamp’s office started the spat on Sept. 21 when it issued a news release that said Rodgers took advantage of a “judicial settlement offer” by Ellison. The news release said Ellison was going to sentence Rodgers to “only six years in state prison,” while prosecutors planned to seek a sentence of 25 years to life in prison under the state’s Three Strikes law.

On Tuesday, Ellison said he made no such offer to Rodgers. Instead, Ellison said he told Romo and Kalebjian that he “indicated” a six-year prison sentence because Rodgers took responsibility for his actions when he pleaded no contest on Sept. 20 to five felony charges, including being a felon in possession of a gun.

“The indicated sentence,” Ellison said, was a tentative ruling and gives both sides the opportunity to argue their position for an increased sentence or lesser one at Rodgers sentencing hearing. Ellison noted for the record that “the indicated sentence” approach has been used by Fresno County judges for more than two decades and has been approved by the California Supreme Court.

In court Tuesday, Romo told Ellison that Rodgers was licensed by the state to carry a baton and pepper spray, but prosecutors contend Rodgers is prohibited from owning or possessing a firearm, ammunition, and pepper spray because of his prior sexual assault convictions.

In her argument, Romo asked Ellison to set aside two of Rodgers’ three strikes because up until the gun charge he had been a model citizen. He never violated parole, Romo said, and purchased the gun to protect himself and his clients at the rape counseling center, which she said was in a tough part of town.

In addition, Romo said staff at the rape counseling center liked Rodgers and voiced no complaints about him.

But Kalebjian said once the staff learned about Rodgers criminal background they felt uneasy about him. Kalebjian told Ellison that Rodgers buying a gun made him a danger to the center’s vulnerable clients and a danger to the community.

In striking two strikes, Ellison said Rodgers’ convictions were 20 years old and that he was making an effort to be law-abiding citizen by finding a job and caring for his family. The judge also said Rodgers made a mistake when he purchased the gun.

After Romo and Kalebjain made their arguments, Ellison sentenced Rodgers to five years and four months in prison.

In announcing the punishment, Ellison said, “it would be fundamentally unfair and unjust” to sentence Rodgers to life in prison.

Afterward Wright said the lesser prison sentence was unfair: “The Three Strikes law is in place for a reason – to make sure that individuals like Mr. Rodgers are held accountable for their crimes and that the public is kept safe.”

This story was originally published October 24, 2017 at 5:28 PM with the headline "Ex-con fessed up to the gun charge. But the sentence left the judge and the DA feuding."