Is there fair justice?

July 22, 2010

By KAREN VELIE

He was convicted of felony manslaughter and drug possession, but he never spent a day in jail. In fact, he was permitted to leave the country to vacation in Europe while on unsupervised probation.

Rubin family members are upset that Alex Forster, the man convicted of killing Francheska Rubin in 2008, received no jail time and until last week was not required to conform to the probation requirements of drug testing and supervision while others charged with the same offense have been treated differently.

A few years ago, the San Luis Obispo County Probation Department moved away from its old method of classifying probationers through personal interviews and began using an assessment tool. The “tool” takes into account aspects of a person life, such as their age, hobbies, social personality, marriage and family, and social patterns.

Those, who score low, are considered low-risk offenders and as such are not required to be drug tested or report to a probation officer, said Gary Joralemon, San Luis Obispo Probation Department’s adult division manager who said assessment instrument testing has proven vary reliable in determining who will reoffend.

However, critics of the new system contend that because they are not supervising low-risk offenders, the chances of them being caught committing another crime or using drugs are greatly diminished.

And if home visits, urine tests and limiting a person’s travel are not ordered, critics say even a low-risk offender can get into trouble again.

Sympathetic probation officials, moved by the anguish expressed by one victim’s family, are changing the way they classify those convicted of killing another person.

“I want them to enforce the conditions of his probation, watch him and test him,” widower Ben Rubin said, horrified that the young man guilty of his wife’s death didn’t get a stiffer sentence. “We were married for 40 years. My heart is broken.”

On June 13, 2008, Alex Forster was driving west on Price Canyon Road on his way home from a party he had attended in Santa Barbara. In his car, authorities later found marijuana laced chocolate bars, a bag of pot and three glass pipes.

Witnesses said Forster, 18, was speeding, following too closely and weaving in and out of traffic.

Forster then swerved about two feet across the double yellow line side, sideswiping a 2001 KIA driven by Maria Garcia. She lost control and the KIA then struck a Tundra driven by Paul Lavelle.

Forester, driving a 2007 Audi RS4 sedan, then plowed head on into 58-year-old Francheska Rubin’s 2003 Toyota Avalon, trapping the Russian émigré in the crushed vehicle.

Emergency medical personnel treated Rubin, who suffered a fractured lower leg, a dislocated forearm, a concussion and chest and abdomen contusions. It took CalFire between 15 and 20 minutes to free Rubin who was becoming “less and less responsive,” according to the accident report.

Rubin died at 6:10 p.m., approximately one hour after the accident occurred, as the result of massive internal injuries, the report said.

A misdemeanor vehicular manslaughter charge can result in a year in jail. A felony based on gross negligence can mean a sentence of up to six years in jail as long as no drugs or alcohol was involved.

Nevertheless, Forster, who pleaded guilty to felony manslaughter and drug possession, would spend just a few hours in jail in exchange for 400 hours of community service.

In comparison, in another case of vehicular manslaughter involving intoxication, 20-year-old Chad Tolley, the son of San Luis Obispo Police Lt. Steve Tolley, pleaded guilty to vehicular manslaughter in the 2006 death of a 73-year-old church pianist. He was sentenced to six years in state prison.

Currently, Kaylee Ann Weisenberg, 22, remains in San Luis Obispo County jail with bail set at $250,000 after being charged with vehicular manslaughter in the death of California Highway Patrol officer Brett Oswald in Paso Robles on June 22.

Weisenberg was allegedly speeding and driving without a license when she went around a corner, lost control and hit the CHP officer.

She was not intoxicated at the time, according to drug tests administered by the CHP.

In Forster’s case, with evidence of marijuana in his bloodstream, following too closely and repeatedly weaving back and forth over a double yellow line, he pleaded guilty to gross negligence in the car accident that killed Rubin.

San Luis Obispo Superior Court Judge Dodie A. Harman sentenced Forster to community service and three years of probation. Following the sentencing, his family voiced its concerns about their son missing a planned 2009 European family vacation.

Judge Harmon said Forster would not be vacationing in Europe and ordered him to start his community service and probation.

However, when Ben Rubin called probation a few months ago to check on Forster’s status, he was informed that the young man was classified as a low-risk offender and had not been required to drug test, check in with probation or remain in the area.

And that San Luis Obispo Superior Court Judge Barry LaBarbera had agreed to allow Forster to travel with his parents to Europe for a 2010 vacation.

Because of his low classification, the Probation Department allowed Forster to move to Los Angeles to attend a private college and recommended to the courts that he be allowed to travel to Europe for a summer vacation with his parents.

Judge LaBarbera agreed to the trip despite the objections of Rubin’s husband and children, who questioned if Forster’s privileged background played into his lack of supervision.

Forster’s father Michael Forster owns Power Save Energy Co. in San Luis Obispo. The Audi RS4 sedan Forster was driving at the time of the accident had a value of nearly $80,000.

“The only thing I’m asking is to treat him as any other prisoner,” Ben Rubin, a Russian immigrant, told the court in broken English. “He wasn’t treated as any other because of the money and the connections.

“They came to my house an hour and a half after the accident and said he is a nice clean kid. What nice clean kid? He was on drugs,” Ben Rubin added.

On June 2, Judge LaBarbera rejected Ben Rubin’s request, noting that it was not a sex crime and suggested Rubin seek counseling and move on with his life.

“The fact that someone made a mistake and everything else you’re talking about, the bottom line is, it doesn’t matter. Your loved one is gone,” LaBarbera said in court. “He (Forster) is a human being and we have to treat him with decency and respect.”

Nevertheless, probation officials decided to override the assessment test and reclassify Forester as a high-risk offender. In addition, future probationers convicted of felony manslaughter will be classified high-risk, regardless of how they perform on the assessment test.

“We are treating him differently now because we owe it to the victim,” Joralemon said. “It is a horrible tragedy.”

Forster is back from his travel abroad and on Monday was tested for drugs. Joralemon said they plan to begin random visits to his home and are considering whether or not they will permit him to leave the county to attend college in the fall.

“I want him supervised properly under the conditions of his probation,” Ben Rubin said. “If you are on probation for killing someone, what kind of vacation should you have.”