1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TODD SPITZER, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA State Bar Number 143166 Post Office Box 808 Santa Ana, California 92702 Telephone: (714) 834-3600 Email: Todd.Spitzer@da.ocgov.com Attorney for Amicus Curiae IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, POMONA COURTHOUSE THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. KENNETH KASTEN RASMUSON, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. KA109311 APPLICATION FOR PERMISSION TO FILE ACCOMPANYING AMICUS CURIAE BRIEF OPPOSING THE L O S A N G E L E S D I S T R I C T A T T OR NEY ’S MOTION T O DISMISS Date: 02/22/21 Dept: H Time: 8:30 a.m. TO THE HONORABLE JUAN CARLOS DOMIGUEZ, Presiding Judge of Department H of the SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES and to District Attorney George Gascón, Deputy District Attorneys Kelsey McKeever-Unger and Michael Matoba, and to Michael Schensul, attorney for defendant. NOTICE IS HEREBY GIVEN that the District Attorney of Orange County, Todd Spitzer, hereby submits this application for permission to file the accompanying amicus curiae brief. While the Rules of Court do not provide for the filing of amicus curiae briefs in the superior court, the Supreme Court has recognized that superior court judges have the discretion to accept the filing of amicus briefs. (See e.g. In re Marriage Cases (2008) 43 Cal.4th 757, 791, fn. 10, superceded by constitutional amendment on other grounds as stated in Strauss v. Horton (2009) 46 Cal.4th 364, 390 [superior court has broad discretion 1 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to determine manner and extent of participation of amici curiae to assist the court through consideration of wide variety of information and points of view bearing on important legal questions].) The Orange County District Attorney has an interest in this case because the victim in Count 1 of the information, Jeffrey Doe, was a resident of Orange County at the time of his murder. His parents and next of kin have remained residents of Orange County to the present. Moreover, Jeffrey Doe was kidnapped by defendant in Orange County, thus Orange County has concurrent venue over the murder pursuant to Penal Code section 781. The amicus brief will assist the court in deciding the motion filed by the Los Angeles District Attorney, to dismiss the special circumstances allegations filed pursuant to Penal Code section 190.2 and found to be true by the magistrate at the preliminary hearing. No party or any counsel of a party in this case has had any part in the authoring of this brief, nor has any party or counsel for a party contributed any money to fund the preparation or submission of the amicus brief. No other person or entity made a monetary contribution to fund the preparation or submission of the amicus brief. Dated this 11 th day of February, 2021. Respectfully submitted, /s/ Todd Spitzer __________________________________________ TODD SPITZER District Attorney of Orange County as Amicus Curiae 2 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TODD SPITZER, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA State Bar Number 143166 Post Office Box 808 Santa Ana, California 92702 Telephone: (714) 834-3600 Email: Todd.Spitzer@da.ocgov.com Attorney for Amicus Curiae IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, POMONA COURTHOUSE THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff, vs. KENNETH KASTEN RASMUSON, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. KA109311 BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY OPPOSING THE LOS ANGELES DISTRICT ATTORNEY’S MOTION TO DISMISS Date: 02/22/21 Dept: H Time: 8:30 a.m. INTRODUCTION The Los Angeles District Attorney (LADA) has moved to dismiss the special circumstances and enhancement in this multiple murder prosecution, not because there are proof problems or because it would be fair and just to do so, but because of a series of special directives through which he endeavors to fundamentally change criminal procedure by way of executive fiat. His attempt to do so in this case is manifestly contrary to the furtherance of justice. Defendant’s crimes are horrific. He kidnapped two young, vulnerable six-year-old boys, sexually assaulted them, and murdered them. Defendant’s background, character, and prospects show he is a dangerous serial predator with no likelihood to ever change. He has served two prison terms for molesting an 11-year-old boy he lured into seclusion before 3 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sodomizing him and he abducted a three-year-old boy from the boy’s front yard before later sodomizing him and leaving him wandering naked on a street the next day. When defendant was arrested for the charged murders in 2015, he was found in possession of child pornography and his internet history revealed multiple searches for child pornography. In sum, there is nothing about the crimes charged or defendant that warrants dismissing any of the special circumstances and enhancement alleged in this case. The LADA’s motion to dismiss should be denied. ARGUMENT I. SINCE IT IS NOT IN FURTHERANCE OF JUSTICE TO DISMISS THE SPECIAL CIRCUMSTANCES AND ENHANCEMENT IN THIS CASE, THE LOS ANGELES DISTRICT ATTORNEY’S MOTION TO DISMISS SHOULD BE DENIED. A. THE COURT HAS SOLE AUTHORITY TO DISMISS ANY PORTION OF A CRIMINAL CASE AND ONLY IF IT IS IN FURTHERANCE OF JUSTICE TO DO SO. As the LADA concedes, once a criminal prosecution has commenced, it is within the sound discretion of the court whether any portion of it should be dismissed. The prosecutor has no independent authority to abandon a prosecution. (Pen. Code, § 1386.) “When the jurisdiction of a court has been properly invoked by the filing of a criminal charge, the disposition of that charge becomes a judicial responsibility.” ( People v. Superior Court ( Romero ) (1996) 13 Cal. 4th 497, 517 [53 Cal. Rptr. 2d 789, 917 P.2d 628].) . . . “[A] district attorney can only recommend dismissal to the court. Dismissal is within the latter’s exclusive discretion.” ( People v. Parks (1964) 230 Cal. App. 2d 805, 812 [41 Cal. Rptr. 329].) ( People v. Roman (2001) 92 Cal.App.4th 141, 145.) As such, this court is not bound to follow the recommendation of the LADA, but independently decides whether dismissal is “in furtherance of justice” as courts have defined the term. 4 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “ ‘The trial court’s power to dismiss an action under [Penal Code section 1385(a)], while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be “in furtherance of justice.” As the Legislature has provided no statutory definition of this expression, appellate courts have been faced with the task of establishing the boundaries of the judicial power conferred by the statute as cases have arisen challenging its exercise. Thus, in measuring the propriety of [a] court’s action . . ., we are guided by a large body of useful precedent which gives form to the above concept. “ ‘From the case law, several general principles emerge. Paramount among them is the rule “that the language of [Penal Code section 1385(a)], ‘in furtherance of justice,’ requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. . . .” . . . At the very least, the reason for dismissal must be “that which would motivate a reasonable judge.” . . .’ . . . ‘Courts have recognized that society, represented by the People, has a legitimate interest in “the fair prosecution of crimes properly alleged.” . . . “ ‘[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.’ . . .” ’ . . . “From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes [or vacates] a sentencing allegation [or finding], solely ‘to accommodate judicial convenience or because of court congestion.’ . . . A court also abuses its discretion by dismissing a case, or a sentencing allegation [or finding], simply because a defendant pleads guilty. . . . Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant's background,’ ‘the nature of his present offenses,’ and other ‘individualized considerations.’ . . . ( People v. Williams (1998) 17 Cal.4th 148, 158-159, emphasis in original.) B. IN RULING ON A MOTION TO DISMISS PURSUANT TO PENAL CODE SECTION 1385, THE COURT REVIEWS THE NATURE AND CIRCUMSTANCES OF THE PENDING CHARGES AND THE DEFENDANT’S BACKGROUND, CHARACTER, AND PROSPECTS. The Supreme Court in Williams reasoned that in ruling whether a dismissal pursuant to section 1385 is in furtherance of justice, the court must consider the nature and circumstances of the pending charges, as well as the defendant’s background, character, and prospects. ( People v. Williams, supra, 17 Cal.4th 148, 161.) A cursory balancing of these dual considerations reveals the error of the LADA’s position in this case. The nature and circumstances of the murders for which defendant is being prosecuted are truly horrific. Nor is there anything about defendant’s background, character, or prospects to suggest it is in 5 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 furtherance of justice not to pursue the sentence the citizens of California, either through the initiative process or their legislative representatives, have deemed warranted for defendant’s crimes. i. THE NATURE AND CIRCUMSTANCES OF THE CRIMES CHARGED IN THIS CASE WARRANT THE DEATH PENALTY OR A LIFE SENTENCE WITHOUT PAROLE (LWOP). The deputy district attorneys cogently summarized the facts of the crimes in their brief, but it bears emphasizing that the murders of six-year-old Jeffrey Doe and six-year-old Miguel Doe are the stuff of every parent’s nightmare: the grabbing of two boys from the normally safe residential streets of their neighborhoods by a stranger who sexually assaults and brutally murders them, leaving their bodies exposed and defiled. There is nothing about the murders of Jeffrey Doe and Miguel Doe that would lead a reasonable person to believe that the perpetrator of the crimes is not worthy of society’s ultimate penalty of death (which the voters of California opted to retain in the 2016 general election with the passage of Prop. 62), much less that he is undeserving of an LWOP sentence. The citizens of California and, more importantly, the victims’ families have been denied justice for these murders for 40 years and 35 years, respectively. Meanwhile, defendant has been free to commit additional serious and violent felonies, some of which have resulted in incarceration. Others he has admitted having committed, but has never been held accountable. Defendant’s crimes affect the citizens of two counties: Los Angeles and Orange. The murders were not committed close in time, nor do they represent a short crime spree within a momentary snapshot of defendant’s life. They were committed five years apart, demonstrating that defendant is a dangerous predator who, after having sexually assaulted and murdered one six-year-old boy, did not feel remorse or the need to reform his behavior. Instead, after having served time in prison for sexually assaulting an 11-year-old boy, defendant returned to stalking younger boys and sexually assaulted and murdered six-year- old Miguel Doe in an even more violent fashion than in the murder of Jeffrey Doe. Simply put, nothing about the crimes charged in the information suggests it would be in furtherance 6 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of justice to dismiss the special circumstances and enhancement in this case. ii. DEFENDANT’S BACKGROUND, CHARACTER, AND PROSPECTS ALL INEXORABLY PROVE IT IS NOT IN FURTHERANCE OF JUSTICE TO DISMISS THE SPECIAL CIRCUMSTANCES AND ENHANCEMENT IN THIS CASE. We turn now to defendant’s background, character, and prospects. Again, the deputy district attorneys prosecuting this case meticulously summarized defendant’s history. As they noted, two months after murdering Jeffrey Doe, defendant chose a new county to victimize: Santa Barbara. There, in predatory fashion associated with serial killers, defendant lured an 11-year-old boy into seclusion by asking him to help find his handicapped dog. Once isolated, defendant threatened the boy, touched the boy’s penis, orally copulated the boy while defendant masturbated, and ultimately sodomized the boy. In fear for his life, the boy felt compelled to tell defendant he enjoyed being sodomized by him. Thankfully, the ruse worked and defendant let him go. The now middle-aged victim testified at the preliminary hearing in this case, explaining that he remains traumatized by the sexual assault to the present day. Defendant was convicted of the Santa Barbara sexual assault and sentenced to prison. Upon completion of his sentence, he was designated a mentally disordered offender. He was eventually released from prison in 1985 to Liberty ConRep to receive treatment for his sexual disorder. While under this supervision, defendant murdered Miguel Doe. A year after the murder of Miguel, defendant grabbed a three-year-old boy from the front yard of his home in Los Angeles, threw him into his car, and drove away. The next day, the boy was found wandering alone on the side of a road. He was naked. The boy reported that defendant had spanked him with a belt, digitally penetrated his anus, and sodomized him. Defendant was convicted of these crimes and sentenced to 17 years in state prison. Upon completion of his sentence, defendant was designated a sexually violent predator (SVP). He was committed to Atascadero State Hospital to receive treatment. In 2004, defendant petitioned for release from Atascadero. The acting medical director of 7 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Atascadero opined that defendant was not cured of his pedophilia, which was a life-long condition requiring indefinite supervised outpatient treatment. Another doctor during the SVP proceedings testified that defendant is highly skilled at manipulating clinicians, that he had admitted to sexually assaulting a six-year-old boy when he was 15 years old, and that early sexual offenses are a sign of “highly deviant sexuality.” Defendant admitted to having committed at least 10 child molestations since age 18, a period of time in defendant’s life comprising only four and a half years of freedom from incarceration. The doctor reasoned that if defendant reoffended, he would do so in more egregious fashion than ever. Defendant was ultimately released in 2007. Officers found child pornography in defendant’s house when he was arrested in Idaho in 2015 for the murders of Jeffrey and Miguel. Defendant’s computer was forensically examined, revealing several internet searches for child pornography. Nothing about defendant’s background, character, or prospects indicates that dismissal of the special circumstances and enhancements in this case would be in furtherance of justice. Defendant is a pedophile. He has molested little boys virtually his entire life. He has murdered two boys in cruel, callous, violent, and sadistic fashion, after having sexually assaulted them. His method of victimizing children is the least employed, yet most feared. He does not cozy up to families to gain access to children. He does not groom his victims, nor their parents. Defendant grabs unsuspecting children off the streets of their neighborhoods, or even from the front yards of their houses. He is brazen, impulsive, and unconcerned with the suffering of others, all of which make him highly dangerous. So, the court must ask: what is defendant’s background? It is one of pedophilia from an early age, victimization of children from an early age, kidnapping, sexual assault, murder, and devastation of families. What is defendant’s character? In a word: malignant. What are defendant’s prospects? The answer is found in, not only his prior criminal conduct, but what law enforcement found when he was arrested in 2015: child pornography and evidence of defendant’s searching the internet for it. Defendant’s prospects are exactly what 8 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the doctors at Atascadero declared: when he offends again (if he has not already done so, unbeknown to the authorities in Idaho or anywhere else defendant roamed during his seven years of freedom from custody), he will do so in more egregious fashion. In sum, nothing about defendant’s background, character, or prospects suggests the dismissal of the special circumstances and enhancement in this case would be in furtherance of justice. On the contrary, dismissing these allegations would be manifestly against the furtherance of justice. II. THE ORANGE COUNTY DISTRICT ATTORNEY’S OFFICE STANDS READY AND ABLE TO ACHIEVE TRUE JUSTICE FOR JEFFREY DOE, AN ORANGE COUNTY RESIDENT KIDNAPPED FROM ORANGE COUNTY AND ULTIMATELY SEXUALLY ASSAULTED AND MURDERED BY DEFENDANT. The LADA’s “one size fits all” approach to reformation of the criminal justice system is without reason and ignores the duties and purposes of a prosecutor. In his various directives, the LADA focuses on the criminals without any regard for the victims and society at large. Cherry-picking data from people and entities who agree with his view of the role of a prosecutor, the LADA apparently wants to open the prison doors without any regard for the various types of criminals he will unleash upon the people of California. How is mass liberation, with no thought of particularized culpability and rehabilitation, an improvement over the mass incarceration the LADA laments? Exacerbating the LADA’s refusal to follow the law as enacted by the voters and Legislature in regard to the appropriate sentencing of a multiple child murderer is his special directive 20-14, dictating his office’s approach to lifer parole hearings. Ending the longstanding policy of sending veteran prosecutors to parole hearings, the LADA now orders not only that deputy district attorneys no longer attend parole hearings, but that the LADA will now support in writing the granting of parole for a life prisoner at the earliest opportunity for release. The only other option for prosecutors in Los Angeles is to take a neutral position on the grant of parole if the prisoner has been determined by a psychological evaluator to be a high risk for recidivism. 9 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The LADA thus refuses as to every life prisoner to advocate for the safety of the citizens of Los Angeles county and the state, regardless of the crime, the prisoner’s behavior in prison, and whether or not the psychological evaluator appears to understand the facts of the crime or the prisoner’s history as set forth in his or her comprehensive risk assessment. As such, in this case involving the murders of two abducted children, the LADA’s position is defendant must be released from prison with all dispatch, irrespective of his behavior, whether or not he has been rehabilitated through programming in prison, and without regard to whether a clinician demonstrates sufficiently in a comprehensive risk assessment that defendant is a low risk to reoffend, or not. Simply put, in the LADA’s world of criminal justice, defendant should only serve the minimum amount of years in prison on a life with parole sentence, and even if he tells the psychological evaluator that he fantasizes on a daily basis about sodomizing little boys and plans to make his fantasies a reality upon release, the strongest position the LADA will take against a dangerous predator’s release is that he is neutral on the subject. Again, the LADA’s “one size fits all” approach is not in furtherance of justice. The Orange County District Attorney’s Office is not conflicted about its role in the criminal justice system and certainly not about the sentence defendant deserves. If the LADA will not pursue the appropriate charges and legislatively-mandated sentences, be assured the Orange County District Attorney is ready and able to proceed. Orange County is an appropriate venue with concurrent jurisdiction in the Jeffrey Doe murder pursuant to Penal Code section 781. (See People v. Powell (1967) 67 Cal.2d 32, 62-63 [Los Angeles County was proper venue for prosecution of murder of police officer that took place in Kern County because the victim was kidnapped from Los Angeles].) If the court has doubts about the LADA’s ability to fairly prosecute the Jeffrey Doe murder and achieve justice, the Orange County District Attorney’s Office has filed charges against defendant for the murder and is ready to assume prosecution. 10 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the foregoing reasons, amicus curiae the Orange County District Attorney respectfully requests this court deny LADA’s motion to dismiss in its entirety. Dated this 11 th day of February, 2021. Respectfully submitted, /s/ Todd Spitzer __________________________________________ TODD SPITZER District Attorney of Orange County as Amicus Curiae 11 APPLICATION AND BRIEF OF AMICUS CURIAE DISTRICT ATTORNEY OF ORANGE COUNTY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA COUNTY OF ORANGE ) ) ) RE: The People v. Kenneth Kaston Rasmuson Case No. KA109311 I am a citizen of the United States; I am over the age of 18 years and not a party to the within entitled action; my business address is: Office of the District Attorney, County of Orange, 300 North Flower Street, Santa Ana, CA 92703. On February 11, 2021, I served the APPLICATION FOR PERMISSION TO FILE ACCOMPANYING AMICUS CURIAE BRIEF OPPOSING THE LOS ANGELES DISTRICT ATTORNEY’S MOTION TO DISMISS on the interested parties in said action by placing a true copy thereof enclosed in a sealed envelope, in the United States mail at Santa Ana, California, that same day, in the ordinary course of business, postage thereon fully prepaid, addressed as follows: Kelsey McKeever-Unger Los Angeles County District Attorney’s Office 400 Civic Center Plaza Pomona, CA 91766 Michael Matoba Los Angeles County District Attorney’s Office 400 Civic Center Plaza Pomona, CA 91766 MMatoba@da.LAcounty.gov Michael J. Schensul Alternate Public Defender’s Office 210 West Temple Street Suite 18-709 Los Angeles, CA 90012 MSchensul@apd.lacounty.gov I declare under penalty of perjury that the foregoing is true and correct. Executed on February 11, 2021, at Santa Ana, California. /s/ Myrna Lopez _______________________________ MYRNA LOPEZ ATTORNEY CLERK II