By Donald H. Harrison

SAN DIEGO—A deputy district attorney who heads the unit prosecuting "hate crimes" and who also successfully prosecuted two recent death penalty cases, now is attempting to follow in the political footsteps of family and friends by running for San Diego County Superior Court Judge.

David Rubin grew up in a political family in the small town of Albany, California, from which he commuted to his Reform Jewish congregation, Temple Beth El, in Berkeley.  His father, Herbert, had been involved in Albany's civic affairs, and after he died of a heart attack, the town turned to Rubin's mother, Thelma, to serve out his term on the planning commission. Eventually she was elected to the City Council, and later served in the rotating mayor's position.

Thelma Rubin additionally was active in both her Temple Sisterhood and Hadassah. Through the latter connection, David was sent in 1977 on a year-long program to Israel under the auspices of its Young Judea affiliate. Rubin attended Hebrew University for six months of study, then spent three months on an Orthodox kibbutz, Tirat Tzvi, south of Beit She'an, and toiled the  last three months in  Shahar, a rose-growing moshav, east of Ashkelon.  The experience, says Rubin, was formative, not only in terms of his life-long commitment to Israel, but also in changing some of his personal tastes.

He recalled in a recent interview that as a youngster, he was "pretty acquisitive" but after seeing how many people in Israel made do with very little, and made do nicely, he decided that he didn't want to have a lot of "tzotchkes," knick-knacks, cluttering up his life, his home or his office.  

Soon after returning from Israel, he enrolled in a double major program at UC Berkeley, obtaining two bachelor's degrees—and running across campus from graduation ceremony to graduation ceremony—in political economics and in film-making.  He spent the next year and a half in Los Angeles trying to decide which career was better for him, the movie industry or the law.  After talking with a family friend who worked for MTM (Mary Tyler Moore) Productions, he decided that the movie industry was not so glamorous as it appeared from the outside.  Besides, his father was a civil attorney, and that career seemed attractive.  

So, he enrolled in the University of San 
David Rubin, candidate for San Diego County Superior Court Office No. 49


Francisco's law school, where he was on the Law Review. In the last year of his law school, he landed a position as an intern with the San Francisco District Attorney's office.  He was assigned to a three-member unit that was assigned to handle cases that were assigned to a courtroom in the City Hall complex.  As luck would have it, Katherine Feinstein, today a judge in the San Francisco Bay area, was assigned to the same unit.  Her mother, Dianne Feinstein, also had an office at City Hall at the time —the mayor's office.

Rubin recalled with delight that on one occasion he and Kathleen Feinstein were working on a case and couldn't get back to the main district attorney's office in time to do some necessary paperwork.  "Kathleen said, 'I've got an idea, let's go to Mom's office.'...  She wasn't in her office and we had full reign of the place.... I remember asking, 'well , when is your mom going to come back,' and she said, 'well she is down at the (battleship) Missouri,' and I said 'that will take a while with all that traffic,' and she goes, 'no, she doesn't wait in traffic.... she will motorcade back in five minutes..."

He successfully applied in 1986 for a position in the San Diego County District Attorney's office, clerking there until he received word that he had passed the California Bar Exam. He has served under three district attorneys, Ed Miller Jr., Paul Pfingst, and his present boss, Bonnie Dumanis.  Pfingst, his former boss, will be his opponent for the judicial seat from which H. Ronald Domnitz, another member of San Diego's Jewish community, is retiring.

In his two decades as a prosecutor, Rubin served in a variety of assignments, including stints in the El Cajon and Vista office. Since 2003, he has headed the hate crimes unit located in the downtown main office.

One of Rubin's better known cases involved the murder of 9-year-old Matthew Checci in a public restroom in Oceanside.  The assailant came up behind the boy while he was using the urinal, slashed his throat, and stabbed him five times in the back, then bolted out of the restroom, literally bumping into the boy's aunt, who was waiting outside.  The boy bled to death on the bathroom floor.  The defendant, Brandon Wilson, was arrested in Los Angeles four days later on a charge of attempting to murder a young woman.  Wilson's lawyers sought to have him found innocent by reason of insanity, but the jury found him guilty and sentenced him to death.  Seven years later, the case is coming up on appeal.

While serving in North County, Rubin also had unofficial duties for the district attorney's office, serving as a liaison to the gay community, in which he and his domestic partner, real estate attorney Todd Stevens, had become well known.  

When a community suffers a hate crime, Rubin explained, there is considerable interest in what law enforcement is doing to catch and then punish the perpetrators.  "It is helpful to an office, any government office, to have people who are known or trusted in that community to go out and chat, and say, 'look, I am not going to mislead you, here is what is going on,'" Rubin said.

Dumanis was sympathetic to Rubin's request for a transfer to the downtown office, to which he could commute far more easily from his home in Pacific Beach than to the Vista office.  

He dealt with the October 2003 arson fire set at Congregation Beth Am in Carmel Valley by Manuel Tiscareno Renteria,  who blamed Jewish patients at a nearby convalescent hospital for making his mother's life difficult.  Rubin recalled explaining to Rabbi Arthur Zuckerman why the district attorney's office had decided to turn the matter over to federal prosecutors rather than to prosecute the man for a hate crime in state court.  The bottom line was that charges of arson against a place of worship, and violating the civil rights of the congregants, carried tougher penalties than a hate crime would under the state statute.  Renteria ultimately was sentenced to 6 1/2 years in federal prison.

When dealing with less serious hate crimes—for example, a defendant who "tagged" a relative's home with a swastika because the relative, a fundamentalist Christian, had espoused pro-Israel sentiments—Rubin utilizes a program developed in conjunction with the Museum of Tolerance, operated by the Simon Wiesenthal Center in Los Angeles. The defendant was made to pay $300 for a guided tour and lecture on the exhibits dealing with Civil Rights and the Holocaust.  The offender then was required to write an essay.

Rubin's  responsibilities include not only hate crimes, but also prosecutions of people who murder police officers. He  had barely settled into the position before Oceanside Police Officer Tony Zeppetello was murdered following a traffic stop by Adrian Camacho.

Rubin said that Zeppetello had been "on the street" as a police officer for only four months when, while assigned to a solo beat, he witnessed Camacho speeding and gave chase.  After suggesting that Zeppetello might still be alive today if he had been assigned to a two-officer patrol, Rubin described how Zeppetello pulled the man over. Then Rubin narrated, in present tense, what followed: 

"Tony does not know that this guy does not want to go back to prison, has a stolen gun with him, drugs in him, the car is not his, and it is a mess.  Tony is a personal trainer, obviously in great shape, so he (Camacho) cannot outrun him. He can't fight him, because Tony is a big, substantial guy. He waits till Tony is looking at the registration and comes up behind him and takes him out. And Tony is hit 13 times, but he fights the whole time.  And so he shoots back with a broken arm; his arm was broken twice.  He tries to crawl back to the car, and the guy stands over him and shoots him.  He runs out of bullets. He starts beating Tony over the head with his gun, takes Tony's gun from him, starts to back away to get into the police car to steal it.  By this time Tony has been hit 8 or 9 times, but somehow starts to get up off the pavement, and he (Camacho) steps back and starts shooting again with his (Zeppetello's) own gun, and jumps into the car and escapes."  

The defense in the case tried to argue that the combination of drugs taken by Camacho had caused him to have a psychotic breakdown, but the jury was more impressed by Rubin's argument that everything Camacho did was calculated to avoid being returned to prison.  The jury not only sentenced Camacho to death, but also returned the death penalty against him.

Rubin said that all murders are terrible but that some, like those committed against Zeppetello and young Checci, "so tore at the fabric of society" that the death penalty was appropriate.  "The death penalty is an important tool; you want to use it on the worst of the worst," said the prosecutor.

He said there was one other case that came up in the North County branch that he thought warranted the death penalty —a case in which a Northern California man stalked a rape victim who had moved to Solana Beach to get away from him, and murdered her to prevent her from testifying at the trial.  "He poses her in the most disgusting way in the front yard" for her husband to see on his arrival home, Rubin recalled.

The case was solved about 12 years after the crime as a result of a "hit" that matched the DNA under the woman's fingernails to the man's DNA.  Rubin said he wanted to seek the death penalty, but that Pfingst, who was his boss at the time, in this case opposed the death penalty saying it was unlikely a jury would impose it so long after the crime had been committed, and with the man in the interim living a quiet life and raising a family.  Rubin said he remembers that  he and Pfingst debated the case heatedly  in a restaurant, Rubin arguing that the murder of a witness is so inimical to the American system of justice that at least a jury should be permitted to decide whether or not to impose capital punishment.

Then, as now, the elected district attorney had the last word in how to proceed.  Today, said Rubin, procedures in the DA's office on whether to seek the death penalty are complex.  The issue is brought before a review committee within the DA's office, which thoroughly debates the pros and the cons.  Thereafter, the question is brought to Dumanis herself, "who will pepper you with questions" before making the ultimate decision.

Whoever wins the Office 49 of the San Diego County Superior Court—Rubin or Pfingst—that person will come from a prosecutorial background.  How easy is it to stop thinking like a prosecutor or a defense attorney and to instead think like a judge? Rubin was asked. "It depends on the person," he responded. "There are defense attorneys and prosecutors who have made that transition and some who haven't. For me, it won't be difficult because part of my job (as the hate crimes prosecutor) so to speak, is to be an even-handed 'judge,' deciding what is the appropriate thing to do to settle a case.  I perceive my job up until the time I get into the courtroom to always leave the door open for a settlement, so you have to be objective."

As a judge, he added, "my philosophy is that my job is to assure that there is an even playing field, that everyone is playing by the rules."

One of Rubin's more recent undertakings has been to serve on a panel that will award the first annual Richard P. Geyser President's Ethics Award.  Established by Philip Flick, who had been Geyser's domestic partner for more than 44 years, the fund will "recognize San Diegans who demonstrate and promote the highest ethical behaviors in their professional and personal service to the San Diego Region."  The award is administered by the San Diego Human Dignity Foundation, which focuses on lesbian, gay, bisexual and transgender issues.

In a county that has seen three lesbians elected to high office—Dumanis as district attorney, Christine Kehoe as state senator, and Toni Atkins as a San Diego City Councilwoman—Rubin says he expects the race for judge will focus on such issues as qualifications, name recognition and endorsements.  Ten years ago, he said, "gay" might be "boxed, or put in neon lights," about a candidate, but not so today.  

Rubin said that every police officers association in the county and the deputy sheriff's association have endorsed him in the June 6 election. So have numerous judges and victim's rights groups—all of whom are listed on his website.  Among prominent backers from the Jewish community are Dumanis, Sheriff Bill Kolender and former Congresswoman Lynn Schenk (D-San Diego). Rubin is registered as a Democrat, but his party affiliation will not appear on the non-partisan ballot.