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Felix Doligosa Jr.

<p>Robert Fassbender, currently in Lerdo Jail, was arrested for stealing donuts in Bakersfield for his potential "third strike."</p>

There were just too many holes in the case against alleged doughnut thief Robert Fassbender to take it to a jury, prosecutors conceded Monday.

The petty theft charge against Fassbender, who faced life in prison for allegedly stealing a package of doughnuts, was dismissed Friday morning for insufficient evidence, said Kern County Supervising Deputy District Attorney Michael Yraceburn.

The 51-year-old Tehachapi man had two felony strikes against him from robberies committed more than 28 years ago. But several misdemeanor convictions over the past three decades have pushed Fassbender in and out of jail throughout much of his adult life.

"I don't want him to die. I don't want him to spend the rest of his life in prison," said 70-year-old Marceline Fassbender, Robert's mother.

"He still has life left to live," she said.

But Mrs. Fassbender said she wants to be clear: She doesn't fault the police for doing their job, she said. And if her son breaks the law, he should pay with a sentence that fits the crime.

Fassbender allegedly stole a package of doughnuts from the Wildrose Station in Tehachapi in November.

In an earlier jailhouse interview, he said the felonies from the 1970s involved stealing money from registers at hotels. Most of his more recent convictions involve being under the influence, according to the Kern County Superior Court Web site.

Fassbender said the incident was a misunderstanding because he thought a friend had paid for the 50-cent package of doughnuts.

Michael Webb, Fassbender's public defender, said he agreed the evidence against his client was insufficient, but he wished the D.A.'s office had reached that conclusion sooner.

Under California law, people convicted of two serious or violent felonies can be sentenced to 25 years to life in prison if found guilty of any third felony.

But it was Fassbender's inability to stay out of trouble, his history of repeated offenses, that convinced Yraceburn to prosecute the alleged petty theft as a third strike, he said.

Mary Shadden, founder of the Kern County chapter of Families to Amend California's Three Strikes, was picketing outside the courthouse Monday with a dozen or so supporters.

"We're just rejoicing this decision," she said.