By clicking on the blue portal below, you can download a PDF of the January 11 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
The trial of Charles “Chase” Merritt for the 2010 murder of the four members of the McStay family got under way this week, more than four years after Merritt’s arrest in the horrific slayings.
Public consciousness of the matter, which was initially considered a multiple missing persons case, first manifested shortly after the family’s abrupt and inexplicable February disappearance from the north San Diego County home they moved into in November 2009. The circumstance was further mired in confusion when the family vehicle was discovered to have been abandoned near the U.S./Mexico border in San Ysidro and a video showed what could have been the four making their way on foot south across the border in roughly the same time frame. For more than three years, the matter remained cataloged by civil authorities, law enforcement and family members as a baffling missing persons case rather than one of multiple murders.
That changed in 2013, when an off-road motorcyclist came upon human remains that had been partially unearthed from one of two graves in the desert less than a mile off the I-15 Freeway just north of Victorville. In relatively short order it was determined that there were two shallow graves at the site in which Joseph McStay, 40; his wife, Summer, 43; and their two children, Gianni, 4; and Joseph Jr., 3, were buried. The dormant missing persons case being carried out by the San Diego Sheriff’s Department transformed instantly into a murder case involving the San Bernardino County Sheriff’s Department.
A year later, Charles Merritt, an independent contractor who had been involved with Joseph McStay in the manufacturing of decorative water fountains which were marketed to a largely affluent clientele, was arrested and charged with the murders.
Since that time, four years have elapsed as Merritt was represented by a series of defense attorneys appointed for him by the court, several of whom he fired over differences he had with them on the structuring of his legal defense. For an extended period of time, he represented himself, having obtained a special dispensation to be provided within his jail cell all of the materials relating to the case that was being put together against him, as since his arrest he has not been out of custody.
On Monday of this week, January 7, opening statements in the case were made before the 12 jurors and their 6 alternates, with San Bernardino County Supervising Deputy District Attorney Sean Daugherty offering a preview of the evidence and testimony to be presented against Merritt over the next two to three months. Daugherty’s compressed presentation essentially encapsulated the case against the defendant.
Without any tentativeness Daugherty maintained that Merritt’s motive in the killings was that Joseph McStay had discovered that his partner had pilfered money from the business by forging checks, which were cashed against the account for McStay’s company, Earth Inspired Products.
McStay marketed Earth Inspired Products’ fountains, artificial waterfalls and birdbaths. Those products consisted of ones purchased off-the shelf and ones McStay custom-designed. Merritt was the craftsman who constructed McStay’s custom fountains and waterfalls. Though Merritt attempted to delete the electronic record of checks which Daugherty insisted Merritt fraudulently issued to himself, the prosecutor indicated recovered data betrayed Merritt in the fraud he had carried out, and that the bogus computerized file he created to cover his tracks while accessing Joseph McStay’s “Quick Books” accounting system resulted in a tell-tale redundancy in the creation of a fraudulent entry that was identified by an all-lower case file name that used Merritt’s first and last names, which deviated from the pattern of entries Joseph McStay had used in his accounting efforts in which he capitalized the first and last names of the payees.
Furthermore, according to Daugherty, DNA evidence found within the McStay family Isuzu Trooper which was found near California’s border with Mexico on February 8, 2010 is an indication that it was Merritt who had last driven the vehicle before it was abandoned.
In laying out the highly circumstantial case against the defendant, Daugherty cited the consideration that all of Merritt’s known whereabouts which line up precisely with the prosecution’s theory of the commission of the murders are reflected in data extrapolated from his cell phone’s contact with cell towers during much of the timeframe of the McStay family’s disappearance, and that at the critical junctures in that timeline where his whereabouts cannot be documented, Merritt had turned his cell phone off, making tracking his comings and goings impossible. Daugherty’s suggestion was that this was a calculated move by Merritt. Nonetheless, the prosecution will present evidence that the defendant’s cell phone was pinging off of a cell tower in the desert area north of Victorville between 10:46 a.m. and 1:30 p.m. on February 6, 2010. That was just two days after the McStay family’s February 4 disappearance, and while Merritt was, prosecutors allege, burying the four bodies in two graves carved into a shallow depression in the desert landscape not visible to passers-by in an area proximate to the I-15 Freeway. Merritt had previously been a resident of Hesperia and attended Apple Valley High School in 1972, 1973 and 1974 was intimately familiar with the Victor Valley area. As late as 2012, he was operating, in partnership with Abayomi Adepoju a steel sculpture fabricating business out of the Clock Tower Professional Center in Hesperia.
Daugherty said cell phone records delineate contact between Joseph McStay and Charles Merritt during what would be the last days and hours of the McStay family’s lives, and that Joseph McStay had driven all the way from Fallbrook to Rancho Cucamonga to confront Merritt over his thefts on February 1, 2010. That confrontation over what Merritt was engaged in precipitated the murderous set of events that followed, Daugherty intimated to the jury.
Evidence to be presented in the prosecution’s case will demonstrate, Daugherty said, that Merritt possesses a combination of the genetic markers, a precise pattern which exists in one in 850 million within the human population, that match the DNA material left by the murderer in the McStay family’s vehicle.
Daugherty told the eight woman, four man jury and their four-man, two-woman panel of alternate jurors that the prosecution’s case would contain a fully-satisfactory accounting of three of the classically necessary elements of who, what, where, why, when and how contained in a journalistic narrative, to include who, how and why, of the slaughter of the McStay family. The who, Daugherty insisted, was Merritt, “sitting here in court today.” The why of the case was the defendant’s greed and insatiable need for money, said Daugherty. The prosecution would also illustrate, the prosecutor said, “how this family disappeared off the face of the earth.”
Merritt’s guilt was evinced, Daugherty suggested, by the way in which, before the family’s bodies were found and the murders confirmed as having taken place, Merritt was referring to the victims in the past tense in his exchanges with investigators when the matter was still being investigated as a missing persons’ case.
While acknowledging that “We can’t answer all the questions,” Daugherty said enough of the facts would be clear enough for jurors to come to a conclusion of moral certainty that Merritt is guilty beyond all reasonable doubt. The prosecution is seeking the death penalty in the case.
Daugherty said Merritt, who had characterized Joseph McStay as his best friend, was actually taking advantage of that friendship by writing and cashing multiple checks totaling more than $21,000 on the Earth Inspired Products account, which were entered into Joseph McStay’s QuickBooks accounting system both before and after the McStay family was murdered. Daugherty said Merritt’s efforts to mask what he had done by printing the checks and then seeking to delete any record of the account activity from the QuickBooks electronic registry had not succeeded, as the data had been recovered by investigators. “The defendant was already writing and printing checks on the business, from Joseph’s QuickBooks,” said Daugherty. Merritt’s thefts were augmented by calls to a QuickBooks customer service representative in which he represented himself as McStay in an effort to alter the nature of the account so he would have further direct access to the money in the Earth Inspired Products bank account.
Merritt was a calculating schemer and conman who, Daugherty said, “while claiming to be Joseph’s best friend, was forging checks from Joseph’s business, putting his hands in the cookie jar.”
More than that, Daugherty asserted, Merritt is as coldblooded of a sociopath as is imaginable, one who used a hammer to bludgeon a three year-old child, his four-year-old brother and their mother, in addition to their farther, from whom he had stolen that money. Thereafter, Daugherty said, Merritt “desperately tried to cover his tracks,” which included a host of deceptions in which he “misled investigators, talked in circles, and played the victim.” Merritt then callously used the money he had stolen, to bankroll his depraved wagering and eventual squandering of the ill-gotten proceeds from his thefts in long days and nights at the gaming tables at casinos in San Diego, San Bernardino and Los Angeles counties.
In the conclusion to his opening statement, Daugherty said, “Ladies and gentlemen, there will be some things the evidence can’t tell you, such as whether someone else or two other people helped him in the commission of this crime. But the evidence is clear. Charles Merritt was ripping off his best friend. He got caught. We can tell you the evidence will show the only person associated with this crime who had a connection with the High Desert was the defendant, that man right there. After we tell you the how and why, at the conclusion of this case, we will ask that you find him guilty.”
Daugherty was the only member of the prosecution team, which also features Supervising Deputy District Attorney Britt Imes and Deputy District Attorney Melissa Rodriguez, to offer an opening statement. The counterparts to the prosecution, defense attorneys James McGee and Raj Maline, gave opening remarks on Merritt’s behalf on Monday January 7, with McGee going first.
The defense team’s contention is that the McStay family was indeed killed as the result of a disagreement over money that grew out of the Earth Inspired Products operations, but that the murderer was not Merritt but rather another of Joseph McStay’s business partners, Dan Kavanaugh.
Both the investigation and the prosecution are hampered by what McGee first termed a “conclusionary bias,” in which the law enforcement agencies investigating the crime very early on set their investigative sights and firepower upon Merritt to the virtual exclusion of any other possible suspects. This resulted in the investigators missing evidence crucial to the case and misinterpreting evidence it did come across. The investigators’ incomplete and skewed findings were used to support the erroneous theory that Merritt had been stealing from his friend and business partner, thus giving him a motive for murder after Joseph McStay learned of what he had done, according to McGee and Maline. Rather, according to the defense, Merritt’s past and then-current livelihood was intricately linked to the success of Joseph McStay’s company, Earth Inspired Products. More to the point, Merritt’s future financial well-being was dependent on an even more lucrative prospect that Joseph McStay was pursuing that was potentially worth millions of dollars. In this way, Merritt’s personal financial interests, were absolutely and totally destroyed by Joseph McStay’s death, McGee and Maline maintain in explaining their theory that Merritt could not be the killer.
The prosecution’s suggestion that Inspired Earth Products checks issued to Merritt in the weeks and days surrounding the McStay family’s disappearance are evidence of forgery is an outright misrepresentation of the true facts, according to Merritt’s legal defense team. Those checks were valid ones issued to Merritt as payment for work or to secure materials and supplies for ongoing Inspired Earth Products projects, and evidence and testimony to be presented at trial will verify that, McGee and Maline propound.
Moreover, the accusations that Merritt had attempted to prevent the events surrounding the disappearance and death of the family from coming to light is provably untrue, McGee and Maline said, since evidence and testimony will show that Merritt was the first to alert authorities that something was amiss and was more adamant about those authorities taking the missing status of Joseph McStay seriously than any of his family members in the initial stages of the family’s disappearance.
Rather, McGee and Maline pointed to Kavanaugh as the actual murderer.
The contention by the prosecution that Merritt using the past tense in referring to the McStay family while he was being questioned by investigators then treating the disappearances as a missing persons case was an indication of his guilt is misleading, the defense argued, in that San Diego County Sheriff’s Detective Troy DuGal had utilized the past tense in posing the questions to Merritt during his interrogation with him.
The defense took issue with the prosecution’s narrative, insisting many of its elements, in particular the timeline and location, will ultimately clear Merritt., according to the defense.
McGee said that the autopsies performed on the McStays showed that both of the adults and one of the children died from “multiple injuries to their skulls from a three pound sledge hammer. Blunt force trauma to the head would create a lot of blood. Thirty percent of the blood flow of a person flows from the heart to your brain alone. There would be blood everywhere.”
McGee emphasized that there would have been “blood spatters… cast off stains [from the use of the hammer as a weapon]. Blood would be everywhere wherever this murder occurred and blood would be all over the person who did it. All over the house there would be pools of blood, on clothes, hands, shoes. It would be transferred throughout the house and out int the car. No blood was found in the residence.” One of the early lead investigators from the San Diego Sheriff’s Department, McGee said, stated that the McStay residence “was not a crime scene. It did not happen here.”
Furthermore, according to McGee “No screaming was heard in the neighborhood. There is not one witness who heard anything nor any evidence. That murder did not happen in that house.” Accordingly, along with the consideration that the family was clad in bedclothes such as pajamas demonstrates that the prosecution’s timeline, which is crucial to Merritt being shown to be the actual killer, is off, McGee asserted. While the prosecution maintains the murder occurred on February 4, “The clothes they were wearing indicate they were sleeping,” said McGee. “The family was alive until the morning of the fifth.”
McGee rejected the prosecution’s contention that the burial site was one that was carefully selected by Merritt based upon his long-held familiarity with the High Desert. Rather, McGee suggested, the actual killers had driven northward on the I-15 freeway with the bodies, seeking a place to dispose of them. He said along the entirety of that route, the periphery of the freeway is “developed” and that the desert area north of Victorville was the first place of immediate access off the highway where an ostensibly suitable area for that purpose was encountered. The gravesite eventually chosen by the killer or killers was not that good of one, and Merritt, who was knowledgeable of the area, would have taken the bodies to a more remote and better hidden area just a few miles distant, if he had been the murderer, according to McGee.
McGee hinted that there is a DNA bombshell that will soon explode to destroy the prosecution’s case. DNA extracted from a plastic coated wire that was used to bind Joseph McStay and which was yet wrapped around his remains in the burial site, was subjected to a less than fully exacting analysis by sheriff’s department investigators, McGee said. That analysis found that the DNA on the cord could not be matched with any of the McStay family members nor Merritt. Despite the prosecution’s objection to that assertion being made in front of the jurors, McGee said a yet-to-be provided analysis that is far more precise will confirm the defense contention that one or more person other than Merritt was or were responsible for the murders.
Additionally, McGee said, the DNA linked to Merritt found within the McStay family vehicle on the steering wheel was likely placed there as a result of Merritt and Joseph McStay shaking hands at the conclusion of their meeting in Rancho Cucamonga on February 1, just before Joseph McStay got into the Isuzu to return to Fallbrook.
On Tuesday, Wednesday and Thursday, Imes and Rodriguez undertook to lay the foundation of the case against Merritt. The first witness called was Susan Blake, Joseph McStay’s mother.
Under questioning by Rodriguez, Blake was able to offer some marginal support to the rough timeline the prosecution has laid out with regard to the disappearance and murders, though in some regards her testimony seemed to lend assistance to Merritt in his defense.
Perhaps most pointedly in this regard, Blake said that it was Merritt who first alerted her to the disappearance of her son, and that she had communicated with him when he sojourned to Fallbrook to see if he could locate Joseph McStay.
Blake said that she had continued to hold out hope that the family was alive, even after the few days they were missing stretched into to a week, then weeks, then months and then years.
Her account of when she was informed in a phone call by her surviving son, Michael, that the remains of her son Joseph, daughter-in-law and two grandchildren had been located in two graves in the desert was an emotionally riveting one.
“My son called me,” she said, indicating that before he broke the news to her he had inquired to make sure she was safely ensconced, such that Blake indicated that she may have had to call him back. She said that Michael told her that Joseph and his family had been “found. They were dead, all of them. I fell to the ground. They found them in the desert. He [Michael] met with the sheriff or someone [and was told] that they were dead. I didn’t believe it, or I didn’t want to believe it. I was working in Valencia. My [business] partner got some of my crew. They drove me home. My best friend, Emily, saw something on the news and was already coming over pick me up and take me to her house in Agoura. We had to be at the sheriff’s department the next morning.”
Blake described her excruciation as she learned of Joseph’s death. Upon hearing what she was told, Blake said, “I collapsed and I just couldn’t believe him. It can’t be. I asked about the little guys and he said they were also gone. I literally fell to the floor. How can you take this in?”
Earlier in her testimony, Blake gave an account of having gone down to her son’s home in Fallbrook the day after Valentine’s Day to look into the matter after having been told of the family’s disappearance some days before and being summoned there by her son Michael. She said that when she arrived on February 15, 2010, Michael was there with some sheriff’s department deputies and workers who were there to do renovative and remodeling work on the four-bedroom two-story house, which Joseph had moved into with his family in November 2009 after previously living in San Clemente. When she came inside Blake saw that the house was in a disheveled state, she said, with food out and rotting at various locations in the kitchen, mildew growing in the coffee grounds in a coffee pot, garbage unemptied in the trash containers and a foul odor permeating the downstairs area as a result. At some point she was given permission by San Diego Sheriff’s Detective Troy DuGal to do some rudimentary cleaning, throw out the garbage and wash the dishes. She did not, Blake said, do any sweeping, vacuuming or dusting that would have destroyed or removed evidence. She said she saw no indication of blood in the home.
Blake also testified that in the weeks and months after the disappearance of her son and his family, she had sought to keep the Earth Inspired Products business going by coordinating with Merritt and Kavanaugh. There were outstanding orders for fountains that needed to be completed and provided to waiting customers, Blake testified, and she said she had been contacted by one of her son’s customers in Saudi Arabia who was inquiring about a fountain he had made a large deposit on. Blake said she wrote $4,410 in checks against her own account and gave them to Merritt so that he could purchase materials to complete some of the projects, including the one for the Saudi Arabian. Money available from her son Joseph’s account had been used not to shore up the business but to pay child support for Joseph’s son by a previous marriage, she testified.
“Did you ever meet with Dan Kavanaugh and the defendant with regard to the business?” Rodriquez asked.
Blake said she met twice with Merritt and Kavanaugh at Kavanaugh’s residence in San Diego to discuss efforts at preserving her son’s company. Merritt’s role was to build the fountains. Kavanaugh, whose expertise lay in the area of creating and maintaining a website to promote and sell the fountains, was to continue his efforts in that regard.
Blake described Kavanaugh as an “IT [information technology] guy. Dan was going to put something into my computer to keep the business going. Chase [i.e., Merritt] and I went down there together. We drove together the first time to San Diego, close to the downtown area.” She said Kavanaugh lived in an apartment in a highrise building and that the discussion extended to “how to keep the business together until we could find my son and his family. There was money needed. Chase needed money to complete the orders.”
Rodriguez asked, “At some point in the meeting did it get heated?”
“Just a little bit at that meeting,” Blake said. “They had had their words. He [Merritt] wanted money and Dan didn’t want to put out any money. He [Kavanaugh] said, “You’ve had enough. You were already given money to complete these jobs.’ It wasn’t yelling and screaming at that meeting.”
It was at a subsequent meeting that the relationship between Kavanaugh and Merritt broke into outright hostility, Blake said.
In the last of the two meetings, “They were definitely yelling and screaming, big time, at each other, arguing, and Dan just wasn’t going to budge,” she said. “There was a lot of cussing. Chase wanted to wring his neck. It didn’t feel right. It was very scary. I left. I walked out. I said, ‘If my son loses his business, so be it, I need to find my family’ and I left.”
Blake said she never saw any return on the money she put into the effort to keep her son’s business intact by making sure the outstanding projects were brought to fruition. Blake said Merritt told her “he would receive money from the Saudi job.”
“Did he ever tell you he got paid that money?”Rodriguez asked.
“He said he was paid out $17,000, for sure,” said Blake.
“Did you ask him to be reimbursed?” Rodriguez inquired.
“Yes, sometimes I asked,” responded Blake.
“Did you ever receive that money?” Rodriquez asked.
“I did not,” said Blake.
Blake said that at one point she and her family were attempting to conduct an informational campaign about her son’s family having gone missing to see if leads on where they were might be stirred up. She said she asked Merritt if he would assist with distributing “fliers. I asked him to participate in that, and he wouldn’t.”
Blake testified that Joseph had told her “Chase had a gambling problem. He had paid money here and there to get him out of some problems, but it was costing him a lot of money.”
In the early stages of the attention being focused on the family’s disappearance when she was told the family vehicle had been found at the border and the San Diego County Sheriff’s Department believed they might have crossed over into Mexico, Blake said she was highly skeptical. Asked why, she said, “because my son wouldn’t go to Mexico or take his children over the border.” Later, she said, “when [authorities] showed us a video of a family of four going across the border I knew it wasn’t them.”
When Rodriguez asked how she knew that even though the video only showed them from behind, Blake said, “How they walked. What they were wearing.”
On direct questioning from Supervising Deputy District Attorney Britt Imes, Michael McStay testified that he and his brother had a business together building fountains in the late 1990s but that business collapsed as the result of a lawsuit. He later launched his own business installing fire sprinkler systems, Michael McStay said, with a start-up stake provided to him by his brother.
Michael McStay testified he first became focused on the disappearance of his brother and his family after getting a phone call on February 9. 2010 from his father in Texas. He said his father indicated he had received an email from Kavanaugh saying that he was having difficulty reaching Joseph. He said he attempted to reach his brother by phone but was not successful. He testified he had been “concerned but not alarmed” at the situation because he thought that with Valentine’s Day approaching, Joseph and Summer might have taken their children to Big Bear “to have a little R & R [rest and recreation]” since he knew that Summer’s family had access to some property there.
On February 13, 2010 he testified, he drove out to Fallbrook to check on the situation at his brother’s house, rendezvousing there with Merritt. Michael McStay testified that was both his first meeting with Merritt and the first time he had been to his brother’s house. Neither he nor Merritt had a key to the house, he testified, but when they went into the backyard, Merritt determined that one of the windows, that into a bedroom converted into his brother’s home office, was open. He testified he removed the screen, and sliding the window open, managed to climb up, clear the sill and crawl into the room, holding the internal blinds aside as he did so without any assistance from Merritt, who remained some 20 feet away near the backyard’s still-locked sliding glass door into the house. After he managed his way into the house, Michael McStay said, he went into the interior of the house and opened the sliding glass door to let Merritt in, but that Merritt declined his invitation to come into the house.
Michael McStay said he had hoped to find a phone number in the house to contact Summer McStay’s mother but was not able to locate her actual phone number, but did find one he mistook for being that of his brother’s mother-in-law, only to realize upon dialing it that it was his mother’s phone number. After tending to his brother’s dogs, which were within an enclosure in the backyard, and leaving a written message on the front door to tell his brother to call because the family was concerned about not being able to reach him, Michael McStay said, he left, hoping that his brother and his family would return home by the end of the Valentine’s Day holiday, but mentally committing to make a report to the San Diego Sheriff’s Department by 9 a.m. on Monday February 15, 2010, if his brother had not returned by that point.
On the morning of February 15, while at a work site, he testified, he called the sheriff’s department and was told to come to the San Diego County Sheriff’s Department north substation immediately. He said he drove his work vehicle home, picked up his then-wife and their daughters and drove out to the sheriff’s department substation. There he met Deputy Mike Tingley, and they then drove in their separate vehicles out to his brother’s house. He again, he said, gained entrance to the residence by crawling through the open backyard window into his brother’s home office to allow Tingley in to search the house. It was during his interaction with Tingley, Michael McStay testified, that he learned that his brother’s Isuzu Trooper “had been towed on the 8th as being abandoned somewhere down by the border.” That struck him as completely out of sensible order, Michael McStay said, since he knew “Summer would never take the boys down to Mexico,” which she deemed to be too dangerous of a place.
Michael McStay further testified that at some point later that year, he had set up a business with a similar but slightly different name to that of Earth Inspired Products, which he based out of his home so that his brother’s business could be sustained until his return.
During cross-examination, Maline pressed the witness with regard to the reliability of his recall of the dates he had cited in his testimony under direct examination. Michael McStay acknowledged that the passage of time had rendered him unsure of the precise timeline. Maline queried as to whether February 13, 2010 was indeed the first time he had been to his brother’s house. Michael McStay indicated he believed it was. Maline then confronted him with a statement he had made to investigators indicating he had been there on either February 4 or February 6.
Maline, armed with the witness’s cell phone records, delved into his claim of having gotten a call on February 9 from his father alerting him to his brother’s disappearance. After some examination of the records, it was determined that the phone call from his father had actually been made and received and then responded to in the afternoon of February 10, with the first incoming call at 3:48 p.m. and contact between them occurring shortly after 4 p.m.
Given the prosecution’s timeline, which the defense maintains is of critical importance in supporting the prosecution’s narrative of Merritt’s guilt, Michael McStay’s concession that his recollection was a day off resounded around the courtroom as completely understandable given the passage of nearly nine years since the event. It was, nevertheless, considered to be of weighty significance by the defense camp.
Throughout their testimony, both Susan Blake and Michael McStay came across as strong and credible witnesses for the prosecution, whatever the precise implication of that testimony may manifest down the line. Though each at times grew somewhat emotional when speaking about their son and brother, neither showed any signs of a personal animus toward Merritt, with both referring to him on occasion as “Chase,” Merritt’s chosen diminutive of his Christian name. While the cross-examination of Susan Blake was somewhat less aggressive than the cross-examination of her son, neither one was provoked into showing any hostility toward the defense team. Michael McStay in particular, given the sometimes pointed questioning that was aimed, seemingly, at impugning his credibility or the accuracy of his recollection, maintained his equanimity throughout his responses.
Michael McStay’s testimony began on Tuesday, but had not concluded as the 5 o’clock hour approached. It resumed the next day but his appearance as a witness was bifurcated by the early Wednesday morning appearance of Jennifer Mitchley, who was subjected to direct examination and then cross examination as the first witness of the day. Mitchley, who lived just a few doors up and across the street from the McStay family on Avocado Vista Lane, testified to establish the validity of video footage taken by two external security cameras mounted at her residence facing the street. Those cameras captured moving images of a vehicle that appeared to pull into the driveway of the McStay residence at 7:47 p.m. on Feb. 4, 2010, which prosecutors allege was Merritt’s truck. The video was shown during Mitchley’s testimony, two days after it had originally been previewed during Monday’s opening arguments. It is the prosecution’s contention that the video captures Merritt arriving to carry out the killings at the McStay premises. On Monday, during his opening statement, McGee had made a graphic comparison of the image on the video and a to-scale image of Merritt’s truck in which the headlights and taillights of the two were shown to be out of size proportion and not in alignment with one another. Mitchley testified that investigators downloaded from her home computer a portion of the footage that her that video security system captured, but that due to a malfunction video from February 5 through February 14 were not available.
Early on Thursday, Michael McStay testified that with the permission of the San Diego County Sheriff’s Department, he had removed his brother’s computer from the Fallbrook house, intending to see if he might glean clues from it as to the whereabouts of his brother and his family, as well as get some photos with which to make a flyer. He was unable to access the computer to do so, however, he said because he did not have a power cord for the machine. The computer was later returned to his brother’s house.
During Michael McStay’s testimony, Imes elicited from him an indication that Merritt had told him there was a warrant for his arrest or that he otherwise had a criminal record. Outside the presence of the jury, this elicited a strong protest from Merritt’s defense team, who asserted to Judge Michael A. Smith that this was an unfair ploy being used to prejudice the jury against the defendant.
Indeed, Merritt does have multiple criminal convictions. None, however, are for violent crime.
No record of Merritt’s juvenile convictions, if any, was available to the Sentinel.
All of the crimes contained in Merritt’s available criminal jacket pertain to ones committed by him after he had reached the age of majority.
On February 4, 1977, he was convicted of burglary, for which he served a 66 day jail sentence.
On July 28, 1977, he was convicted of petty theft, for which he was given a 60 day sentence.
On October 24, 1978, he was convicted of criminal trespass, and given a 30 day sentence.
On November 18, 1978, he was convicted of burglary and sentenced to two years in state prison.
On April 16, 1985, he was convicted of receiving stolen property. He was sentenced to 365 days in county jail as a consequence.
On February 4, 1987, he was convicted of receiving stolen property, which netted him 16 months in state prison.
On May 21, 1988, he was convicted of receiving stolen property. He spent 14 days in prison as a result.
On June 17, 1988, he was convicted of a parole violation but was not incarcerated.
On April 2, 2001, he was convicted of burglary and grand theft. He was sentenced to 180 days in jail.
On at least 11 occasions, he failed to appear in court as scheduled. In seven of those cases, warrants were issued for his arrest. At the time of the McStay family murders, he was wanted on a probation violation warrant.
Testifying later on Thursday was Kathleen Conwell, a San Diego County animal control officer, who was dispatched from Carlsbad on February 14, 2010 to the McStay residence to look into a complaint regarding abandoned animals on the property. She said she noted that parked in the house’s driveway was a Dodge pickup truck, which upon her vehicle check request to the sheriff’s department was identified as belonging to Joseph McStay. There was no response to her knock at the front door, upon which she said there were notes to Joseph asking him to contact various people. She opened the gate to the backyard and could see two dogs, including a large Rottweiler, in the backyard. She posted a notice of abandoned animals on the property on both the front door and the gate, which she acknowledged were misdated January 31. She then went to an immediately adjacent home, she said, speaking with the resident there, identified as a Mrs. Anderson, who gave her Michael McStays’s contact information. She called him, but did not reach him immediately. She then contacted the sheriff’s department to have that agency do a welfare check on the property. Michael McStay returned her call at that point. He told her he had called the sheriff’s department already, and a welfare check had been done earlier that week. She testified she called the sheriff’s department and canceled the welfare check request she had just made.
Also testifying on Thursday was San Diego Sheriff’s Sergeant Michael Tingley, who in 2010 was a deputy. Tingley testified that earlier in February, Deputy Craig Hyer had done a check of the McStay residence after a request for one had come in. Tingley said did a check to see if Joseph McStay was in custody, which came up negative. Tingley then carried out a vehicle “registered to” check on Joseph McStay, and learned of the Isuzu Trooper. A further inquiry determined that the vehicle had been towed by Western Towing from the San Ysidro Shopping Mall and impounded. He called Western Towing and asked if there was anything in the vehicle and was informed there was a blanket and a couple of car seats in the back. He then placed a “verbal hold” on the Isuzu, he said, instructing Western Towing not to release it until a detective contacted the tow company with regard to it.
Tingley testified he then spoke by phone with the reporting party that had requested the welfare check, whom he identified as Michael McStay, on February 15. He said he arranged to meet Michael McStay at the substation and after doing so, they both drove out in separate vehicles to the McStay residence in Fallbrook at around 2 p.m. He said that Michael McStay informed him he had previously gained entrance to the home through a back window and he waited at the front of the house while Michael McStay went around to the back of the house and then a short time later opened the front door to let him in. He said he did a brief walk-through of the house and took “four or five photographs, which upon display turned out to number seven, including one of Joseph’s home office, an upstairs bedroom, a room in a mostly empty room which had a small desk in it, a bedroom, a bathroom with clothes on the counter, a closet with clothing in it and a photo taken at the top of the stairs pointing down to the ground level.
Those photos were displayed to the jury and the courtroom observers.
Tingley said he saw no obvious signs that a struggle had occurred in the home and no blood or any indication of tissue or dead bodies. He summoned two other officers and they together did what Tingley called “an area canvas,” which turned up nothing of note. After satisfying himself that there was nothing further to look into immediately, the officers were released from the scene to go write reports.
Though Tingley said that there was no sign of forced entry nor any obvious indication that anyone had been murdered there, he said “It appeared that whoever was there, in my mind, just got up and left. There were plates of food half-eaten. Usually people at least take the plates or dishes to the sink. It was a missing family of four, not something rooted on a daily basis. There was something not jibing. It just didn’t seem normal.”
For that reason, Tingley said, he called the homicide division to bring it’s investigative resources to bear on the matter.
By Joseph Turner
The Upland City Council this week sifted through the applications of fifteen residents who had offered to fill the one missing slot among its ranks and has now winnowed the field of those it will continue to consider to eight.
Those yet in the running for post are Lois Sicking Dieter, an air pollution specialist/engineer with the California Air Resources Board; Carlos Francisco Flores, a police sergeant with the City of Riverside; Neil Gerard, a 41-year resident and the retired associate dean of students at Pomona College; Eddie Limbaga, a 25-year resident and the owner of Agabmil Properties LLC and of Hybrid Hockey Industries; Shannan Maust, a consultant in the retail industry who formerly worked for Nordstrom; William Velto, a 58-year resident and branch manager broker for Tarbell Realtors in Upland who is a member of the planning commission; Ralph Cavallo is a retired Southern California Edison executive who has been active in youth sports and other community programs; and Glenn Bozar, a retired logistics manager with TE Connectivity and a former member of the city council from 2012 to 2016.
The need to select a council member to bring the panel to its full five-member strength comes as a consequence of last year’s first by-district election, which under the circumstances that apply, resulted in some political calculation by Janice Elliott, who was elected to the council at-large in 2016.
The division of the city into four voting districts creates a circumstance in which council members must now be elected according to their residency within each of those districts, which in Upland are enumerated as the First, Second, Third and Fourth, the city’s northwest, northeast, southwest and southeast quadrants, respectively. Last year, 2018, the posts in the Second, Third and Fourth districts were to be contested. In 2020, the First District and the mayoralty, which is yet to be elected at-large, will be at stake.
Elliott could have continued to serve in the at-large capacity she was elected to in 2016, but when that term expires, she would not be able to seek reelection to the council, because she is a resident of the Second District, and would thus have to wait until 2022 to vie again for the council. Thus, she chose to vie for the Second District position being contested in November. She was victorious. To assume the Second District post, she had to vacate the at-large seat she held. Rather than hold an election to fill for the two years remaining on the term of the position she resigned from, the city council last month opted to appoint a resident to fill the opening. Because it is an at-large position, there are no residency requirements beyond living within Upland’s city limits.
On Monday January 7, the council held a special meeting at 6 p.m to hear oral presentations from the applicants to fill the vacancy and discuss the appointment of a candidate the council collectively deemed qualified to hold the post.
The council heard from 13 of the 15 who applied, as two, Rod McAulliffe and Craig Harper withdrew their requests to be considered.
After hearing the presentations and the council undertook its discussion, Councilman Rudy Zuniga nominated Glenn Bozar and Councilwoman Janice Elliott seconded that motion. The vote to approve the former councilman deadlocked at 2-to-2, with Mayor Debbie Stone and Councilman Ricky Felix unwilling to support that appointment.
After some further discussion, it was resolved for the entirety of the council to make to make suggestions/nominations for further consideration at a future convocation of the council. At that point, Sicking-Dieter, Flores, Gerard, Limbaga, Maust, Velto and Cavallo were identified as having made a favorable impression on at least one of the council members, along with Bozar. City Attorney Jim Markman, however, opined that Bozar was out of any further contention for the spot, as he had already been nominated, seconded, voted upon and rejected. When both Zuniga and Elliott mentioned Bozar directly, Markman said Bozar would need to find a nomination from someone on the council other than those who had already nominated him – Elliott and Zuniga – to remain under consideration. With support for
Sicking-Dieter, Flores, Gerard, Limbaga, Maust, Velto and Cavallo having been expressed, the council then voted, unanimously to invite them back for a further round of discussion and consideration. It thus appeared the prospect that Bozar would reemerge as a council member had passed.
When David Wade, an Upland resident shouted from the gallery, ‘What about Glenn Bozar?” Felix at that point inquired about Bozar’s inclusion.
“What about Bozar?” Felix said. “He should be on there. He had two people.”
Markman, who bears some animus toward Bozar, said, “The motion to appoint him failed, so to put him back into the process, somebody who voted against that motion would have to bring a motion to include him in this motion.”
“Then we have to have a motion to put him back on the list to be fair,” said Felix.
“Wouldn’t be fair…” Markman offered, yet trying to keep Bozar from receiving any further consideration.
“Would be fair,” Felix restated in clarification, “to put him on the list for the interviews. I make a motion to reconsider that.”
Zuniga seconded that motion and the council then voted unanimously to include Bozar among those to be interviewed.
Those interviews are to take place Wednesday January 16, at 3:00 pm in the meeting chambers at Upland City Hall.
Lois Sicking Dieter, a former Upland Parks and Recreation commissioner Monday night told the council and the public she would serve “the homeless to the executives. The top three issues that motivate me to run are the intended sell-off of Memorial Park, disregarding the rights of the citizens and the State Constitution, continued disregard of citizens’ rights as evidenced by the Cabrillo Park attempted sell-off, and the previous city council deciding that the November election would consist of council member elections for districts 2, 3 and 4, Common sense would tell me that Janice Elliott, already elected to the city council and living in District 2, continue in her term at large for two years and have elections for districts 1, 3 and 4. That didn’t happen. In my view, common sense, transparency and the greater good were not considered in this decision. Cultivating patience being an active listener, leading through building consensus” she said were her strengths. Having formerly worked as a registered nurse Sicking Dieter said he had “experience in handling stressful situations with significant consequences. I am routinely required to de-escalate others from extremely stressful situations.”
She said she was determined to address the issues bedeviling Upland, including “developing parkland, lack of trust, fiscal integrity, civic engagement and communication, not following the rule of law and improving staff wages, and the lack of accountability between elected officials and the citizens they serve.”
Eddie Limbarga told the council that he was a bidder on the Wayne Gretzky Hockey Center when it was sold years ago. “Everyone is valuable in what they have to offer their community,” he said. “I feel that the city has made steps toward the positive and I would like to continue this direction in any way that I can. If I can offer my experience of business and philanthropy to make a positive experience in my community, I’ll feel fulfilled. I’m openminded and motivated to find success for our city. I’ve always been a team player and a great leader. With the council I’ll be a part of a team. By working together we can accomplish great achievements.”
He said he would put a priority on “attracting business to keep our tax revenue in the city.”
Carl Francisco Flores emphasized that he lives in District 1. “I urge you to consider a District 1 resident,” he said. “You now have the opportunity to show the residents of District 1 that you believe that the residents of each district should have fair representation.”
Flores said that his status as a 24 year police officer “would bring a law enforcement perspective to the council when dealing with issues of public safety. I feel a non-politician such as myself is the best choice for Upland. I will come into politics with no loyalties to any big business, no groups and no current politicians. Instead, I come with an eagerness to help revitalize the city of Upland and I believe we do that by concentrating on a few issues. By investing in our local businesses to help increase sales tax revenue, our second highest form of revenue. I believe we should be searching for innovative tactics to solicit our residents and residents from surrounding cities to shop in Upland Investing in local businesses is investing in or future. With homelessness being a nationwide epidemic, we need to work closely with our [police] chief to ensure his department has the necessary tools, manpower and innovative technology to combat the homeless that are affecting our community’s visibility.”
He stood for, Flores said, “investing in our government by living within our means and finding new ways to conduct business within a balanced budget. I would work with you as a team to find that balance without affecting the services that Upland residents deserve.”
Neil Gerard said, “I am independent. I will make up my own mind based on research, my communication with constituents and colleagues and I will work collaboratively.”
Gerard indicated he was less than impressed with those vying against him for the appointment, saying of their representations about themselves, “I was reminded of an interlocking directorate, with the same small group of individuals vying to control multiple organizations. If we are going to change this city and regain the trust of its citizens and its employees, we are going to need to break out of the old ways of thinking with new ideas and new people. I have experience in areas I think would be helpful to the city now. These include areas like financial management, conflict resolution, organizational development, and project management. I have successfully used these administrative skills in a variety of nonprofit and volunteer organizations including serving as the business manager at a major nonprofit at Cal Poly Pomona.”
Bill Velto told the council, “I understand serving as a councilman is a privilege and does not give me any more rights than any resident. I also understand I must be fair and honest in all my dealings with the city. I also understand at no time can I put the needs of any special interest group ahead of the best interests of residents and the city. I also understand I may be required to make decisions that are not favorable to some of the residents.”
Velto said he had lived in Upland for 58 years with the exception of four years of active duty in the Navy. He touted his business acumen, reminding the council he operates two businesses in the city with over 100 employees. A District 1 resident, he said, “In my capacity as a business owner, I engage in hiring, terminating and contracts and budgeting. I have not agreed with all of the decisions made by councils in the past and that is one of the reasons I applied for this position. The revolving door of managers creates instability and a lack of trust in the community. City council members must work together and maintain their individual identities and beliefs and not be swayed by special interests.”
Ralph Cavallo said, “The need to increase our revenue is our largest issue. We could increase our sales tax revenue through a creative program for downtown development. Our approach has to be a different way to doing things from the past. We need a multi-level approach.”
Cavallo said, “I have no political motive in applying for this position. I just truly believe my qualifications and experience would be helpful in moving forward positively the newly elected council over their next two learning years. I commit if appointed that I will not use the position as a launching pad for the office of city mayor in 2020.”
Shannan Maust told the council she had attended the citizens academy offered through the police department and that she had created a business watch program which she said was “similar to neighborhood watch that would focus on business property, property owners and property managers, knowing this could eliminate some tedious work on the part of the current chief and police officers while utilizing my business background. I was excited to commit. The program focused on environmental design and reduction of blight on the Foothill corridor and Mountain Avenue. The program would address many of the issues the residents expressed in City Hall, like homelessness, crime reporting, raising the level of attractions for enticing residents to shop local, attracting new businesses that were desired by residents and most importantly streamlining communication with the city and police department. The program showed good results from areas of the city and accomplished an updated ordinance on clothing donation boxes, addressing areas on properties where owners could improve, visibility to deter crime by adding lighting and addressing landscaping, making it safer for patrons’ shopping experience. Some lots adding security guards are teaming up with adjoining lots to improve the areas. Simple low cost additions by the city, refreshing some signs and painting red curbs show good-faith partnership with the city. Unfortunately, the program has been a slower pace, which followed with the breakdown of our police department and revolving door of leadership in our city. I was encouraged in the meantime to help with the ‘Say no to panhandling program,’ and did so to keep building relationships with our city’s building owners and property managers. I did not want to have a large gap of time between relationships that had been built, but did find many challenges on who to share the valuable information with that was shared by our businesses that could further instrument change with the property managers and owners. Part of the business watch concept is also supporting our business owners on social media, attending ribbon cuttings and grand openings.”
Glenn Bozar said, “I want to use my past council experience, my management experience working for a $10 billion global manufacturer and my master’s degree in business administration to help this city council to succeed in dealing with the myriad of issues that you will be confronted with, and I have an open mind to listen to all sides of the issues. The city is a $130 million nonprofit service provider business, and I have the needed experience to know how it operates. The most important issues I see are long-term financial stability, public safety, homelessness and water. The long-term financial stability of the city is essential in that it provides the needed police, public works and administrative services residents demand and rely on. Public safety, streets, trees and parks can be maintained or improved only through financial stability. I have participated in the approval of annual city budgets, and understand the details of revenues and expenditures. While on the city council, I approved with the other council members some of the suggestions of the Citizens Review Financial Task Force. I have also reviewed from the outside auditor the comprehensive annual financial reports to help me better understand the financials of the city. Public safety and homelessness are linked and many police calls are to deal with homelessness or transient issues. While on the council I supported in conjunction with the police department many of the actions taken to alleviate these issues. In 2014 [then-Police]Chief [Jeff] Mendenhall requested additional patrol officers and police technicians. As chairman of the finance committee, I worked with staff to fund these much-needed positions within the existing city budget. I believe the city needs to help those individuals who want help and find them the local or county services. Alcohol, drug addition and mental health issues are the predominant problems of the homeless and transients, I have learned in my experience working with Bridges to Homelessness Ministry at my church. I believe the city needs to continue to adopt the best practice to get those help who need it. The city is fortunate to own water rights and maintain its water department and owns a majority share in the San Antonio Water Company and the West End Company. I was a member of the board of directors of both. Providing water to our residents and commercial businesses is essential. This city must ensure it has adequate supplies and look for opportunities and possibly reactivate wells. Water capture and percolation are key components to ensuring water supplies.”
Just as Yugoslavia was thrown into a state of chaos after the death of Marshall Tito, the City of Montclair seven months after the abrupt resignation and death of Mayor Paul Eaton is descending into a state paralysis. The full resolution of the leadership vacuum that ensued with the dissolution of Eaton’s leadership has yet to be achieved, and a conflict over otherwise seemingly minor differences among the city council’s members is now mushrooming into a bareknuckled power struggle.
Eaton, who had been a member of the city council since 1988, was appointed mayor in 1995 following the resignation of then-Mayor Larry Rhinehart. Eaton completed three years of that term and then went on to be elected/reelected to five more four-year terms. Throughout that time, the city and council maintained a state of placid stability, with very little turnover on the council over a series of election cycles during which City Manager Lee McDougal answered to the city council. In 2010, MacDougal’s right hand man, Ed Starr succeeded him as city manager upon his retirement and the air of tranquility sustained itself for another eight years.
In 2017, a storm cloud loomed on Montclair’s horizon when Eaton suffered a heart attack, which sidelined him for a while. He initially seemed to be bouncing back but his health again downgraded and he found himself growing more and more infirm in the winter of 2017-18. He last attended a council meeting on March 5, 2018, and over the next three months Councilwoman Carolyn Raft, the city’s mayor pro tem, filled in for him in presiding over council meetings. After having missed more than 60 days of the city’s regular council meetings, Eaton was obliged to step down from his elected position or, in the alternative, the council was required to act to remove him. Ultimately, on July 5, 2018, Paul Eaton tendered his resignation. The council, mindful that the November election in which the mayoral position would be up for election was at that point only four months off, unanimously voted to elevate Eaton’s wife, Virginia, who goes by the name Ginger, to succeed him. As it was then generally believed and considered that Ginger Eaton had no lasting political ambition of her own and that as such she would not vie for mayor, her appointment had the advantage of not conferring what some believed might amount to an unfair advantage of incumbency to any one of the possible candidates for mayor in the 2018 election.
Paul Eaton had confided to Raft, who was first elected to the council in 1992 and as such was the longest-serving member of the panel, that he considered her to be the logical and best choice to succeed him. Two weeks after Paul Eaton’s resignation, he died.
John Dutrey, who was the second-longest serving member of the council after Raft, having first been elected in 1996, had mayoral ambition. Thus, with Raft’s concurrent decision to vie for mayor, a rivalry that theretofore had not previously existed between Dutrey and Raft manifested. Indeed, in years past going back to 2000, a political alliance of sorts had existed between the two, as they both were bound to vie for reelection in the even-numbered years corresponding with presidential elections. Given the comity and consonance that existed between them, their nearly identical voting records, their coequal identities as members of the existing Montclair political establishment and common interest in maintaining the status quo, it behooved them both to make no criticism of one another and indeed laud each other and compliment Paul Eaton for their respective performances in office during the political season. In 2004, 2008, 2012 and 2016, all three were victorious in their reelective efforts. Indeed, in 2012 in particular, when two political upstarts – Montclair’s former assistant finance manager, Richard Beltran, and his ally, Sean Brunske – ran together as a reform-oriented anti-incumbent slate aimed at shaking up City Hall, Raft and Dutrey had practically campaigned as a team in defense of the conventionality that existed at Montclair City Hall. Their collective appeal to the voters to not change horses in the middle of the stream and to avoid rocking a steady rolling boat steaming unerringly to its destination appealed to the voters and the duo were retained in office by a resounding majority of the city’s voters in that year’s balloting.
However, in last year’s election campaign, in which Sousan Elias and Kelly Smith were also running to make it a four-candidate field, Raft and Dutrey found themselves facing off against one another. And while the election did not decline into anything approaching the mudfests that have typified some other bitterly-fought local, state and national campaigns, both made serious efforts to prevail. Earnestly, Raft set about using the traditional campaigning methodology of walking precincts and going door-to-door to speak with registered voters, augmented by a sign campaign. Dutrey proved more aggressive than Raft. He moved to secure the endorsement of the police officers’ and city firefighters’ unions, according to some reports by making commitments to them to enhance their salary and benefit packages. While Dutrey did not devote himself to as energetic of a door-to-door personal voter contact approach as did Raft, he conducted a heavier signage campaign than she did, with his people posting signs at spots where they had permission to do so and monitoring places where the Raft campaign was posting her signs and then placing Dutrey signs at those spots, often without permission. Eventually Raft chaffed at this, leading to what are believed to be the first cross words that had ever passed between them.
Dutrey proved more creative in yet another way, sending out a subliminal message that was calculated to corral him more votes. Of French Basque extraction, his actual name is Javier John Dutrey. Professionally and politically in years past, he had dispensed with using Javier. But in recent years the long dormant Hispanic political giant in all of California to include San Bernardino County and Montclair has been awakening. With 72 percent of the city’s population self-identifying as Hispanic or Latino, Dutrey redesigned his campaign signs to promote himself as “Javier ‘John’ Dutrey.”
To a minority of the city’s Hispanic electorate, those familiar with Dutrey who recognized that he had for two decades merely represented himself as “John,” the move came across as offensively patronizing and exploitative. A larger cross section of Montclair voters, including a significant percentage of its registered Latino voters, however, moved to precisely the conclusion Dutrey was aiming for. The ruthless intensity of his campaign involved Dutrey in another questionable tactic. When two city employees made social media postings in support of Raft, Dutrey responded in a way that was interpreted as a threat to have them fired when he stated that they should not be getting involved in city politics. When those employees made an issue of what was occurring, Dutrey ultimately apologized. At the level where it counted, however, the impact had been achieved, as the intimidation of city employees in the crucial weeks leading up to the election curtailed or reduced a source of the logistical support to the Raft campaign that she might otherwise have counted upon.
Despite the criticism of Dutrey’s tactics and the ill-will it engendered within certain narrow quarters, it proved a successful strategy overall. In the four-way voting, Raft polled 2,623 votes, or 35.59 percent. Elias and Smith claimed a combined 14.66 percent of the vote. Dutrey walked off with the mayor’s gavel on the strength of the 3,681 votes he captured, equaling or 49.85 percent.
His victory was a costly one, as the collegial attitude that had long existed on the council was broken. Somewhat inexplicably, paralleling the falling out between Raft and Dutrey, council members Bill Ruh and Tricia Martinez at some point came to loggerheads. Ruh, who was first elected to the council in 1998 and was consistently reelected thereafter, was handily returned to office in 2014, the same year that Martinez was first elected. For nearly four years they appeared to have a more than cordial relationship, with Martinez on multiple occasions making indication of her admiration and respect for Ruh, his guidance, wisdom, dedication and generosity. Ruch had likewise been charitable toward his younger colleague. As the 2018 election season evolved, however, their camaraderie evaporated. In the November 6 voting, among a field of six, Martinez scored an impressive first place victory, with with 3,709 or 33.21 percent of the vote. Ruh retained his council post by placing second with 2,571 votes or 23.02 percent. Benjamin Lopez ran a respectable third, with 2,205 votes or 19.74 percent.
At the city council’s December 3 meeting, the last full convocation involving Virginia Eaton in the capacity of mayor, Martinez, Raft and Eaton voted to make an appointment to fill the vacancy that would exist on the council with Dutrey’s ascension to the mayor’s position, and scheduling a vote to do so on December 10, 2018, at a special meeting of the city council. Dutrey and Ruh were opposed to doing so.
At that December 10 meeting, with Eaton no longer a voting member of the council, Martinez and Raft sought to appoint Eaton to the council. Implicit in such a move, however, would have been the creation of a ruling coalition that would have left Dutrey on the outside looking in. He and Ruh gave indication that they favored filling the void through a special election, and voted against a second appointment of Virginia Eaton. The issue was brought back to the council’s next regularly scheduled meeting on December 17. Both Dutrey and Ruh remained opposed to appointing Eaton. Recognizing, as well, that virtually any nomination they might make would not meet with the support of either Raft or Martinez, they made no such nomination. Instead, they remained by their stated principle that the voters should be given a choice in the matter.
The matter was brought forward again this week, on January 7.
“The people have elected you to make tough decisions,” said Rob Pipersky, who then advised the council to make the appointment.
Shirley Wofford said she did not think that Dutrey and Ruh were “giving consideration to how [a successful elected candidate] will have to spend a lot of start of their [time in office] to start an organization for the 2020 election. They won’t have time. Regardless of who it is, that person has a year to do the job and decide if they are going to run for the 2020 election.” She said holding another election was not necessary. “We did elect all of you to make this decision for us,” Wofford said, noting that an election would entail tremendous expense “If you are passing 99 items and failing on one, you are failing. Do your damn job.”
Joan Lindhorst asked if “anybody has thought about the cost? This will be $200,000 our taxpayers will be paying on this when the residents of Monclair have already spoken. The one who had the highest number of votes should be appointed. Whoever that is should be appointed to the council seat. Special elections are time consuming and money consuming.”
Roger Lambert said something should have “been decided already.”
Benjamin Lopez, the top vote-getter among those who ran in November but were not elected, said the council should respect tradition and protocol in determining how to fill the gap.
As the top vote-getter in the just concluded election, Lopez indicated, he had previously been tempted to call for making an appointment based on the election results, which would vault him into the post. It was not that simple, however, he vouchsafed. “Forty years ago, we saw a council member resign from his seat, creating a vacancy,” Lopez said. “The city’s remaining four council members chose to appoint the next highest vote getter in the recent election it had, claiming that the next person earning the support of voters should be granted a chance to serve. That council member served only two years. Thirty-three years ago, the city had a sitting council member get elected mayor in the middle of his term. He resigned his council seat creating a vacancy. The remaining four council members also felt that the best decision was to appoint the next runner up in the last election they just completed and to hold a special election for the remainder of the term. They did just that. That council member served two years. Thirty years ago the city had a vacancy occur on the council. The remaining four council members decided to appoint a new council member, and call for a special election. But this new council member had to go through an interview process and those interested had to submit applications. Nearly 25 years ago the city had its mayor resign. This created a vacancy. The council at that time created an application and interview process. The person appointed only served two years. Montclair has a history of appointing the third place finisher in the most recent election and appointing a temporary council member and calling for a special election. It has been argued and said by one that ‘appointments have worked well for the city.’ Well, I’d have to agree that in most cases they have worked out well. But the person claiming that appointments work well needs to tell the whole story. Don’t give the impression that automatic and rushed appointments occurred. That has not happened. In fact, in 1988 Paul Eaton was temporarily appointed to the council to fill the seat vacated by the death of Billy Oldfield. The council then called a special election to determine who would fill the remainder of the term. Paul Eaton was not given an automatic, carte blanche appointment. There was a special election planned. Now, no one filed against Paul Eaton to run for that seat, so he was appointed to the term outright, but nonetheless a temporary appointment was made and special election called.”
Lopez said, “Today, to be consistent, to be fair…no other Eaton today should be given a seat just because the planned appointment is a ‘done deal’ like Carolyn Raft has posted. Calling something a ‘done deal’ is a backroom deal, and backroom deals violate the Brown Act. Since 1970, there have been seven times that previous councils have appointed to fill a vacancy, but they either collected applications, conducted interviews, appointed the next runner up and/or called a special election. All previous councils have done one or a combination of these things. John Dutrey’s initial call to seek applications and conduct interviews falls in line with Montclair precedent. What he asked for all along should have been done in the first place. That would have prevented the mess we are in today. Ramming through an appointment that benefits one, does not fit with Montclair’s history.”
Lopez said he believes the appointment “process is so tainted now, that no resident of this city has a fair and unbiased chance at being appointed to the council. The process is being skewed to favor one resident only. Anyone else not named Eaton, need not apply.”
Lopez acknowledged, “I initially called for an appointment and that you appoint the next highest voter getter in the last election.” However, he said that he is convinced “now the only fair option at this point is a special election to let the people of Montclair have final say on the vacant council seat.”
The input from the public did not sway the council either way. Raft and Martinez yet called for making an appointment and both continued to support Eaton being that appointment. Raft’s nomination of Eaton, seconded by Martinez was voted upon, resulting in a 2-to-2 deadlock.
Ruh reiterated his belief that principle dictated that an election be held.
This brought a testy response from Martinez. “[Who] made you the dictator of what’s appropriate timing?” Martinez said. “Who decided that you know what’s best for the city?”
Martinez then demanded to know why Ruh was unwilling to make an appointment nomination.
Ruh said he was unwilling to make a nomination of even someone he considered to be a qualified candidate because he did not believe making an appointment was proper.
“I have always believed in elections,” Ruh said. “Let the residents decide. If someone is interested, they will go door-to-door so people can see who they like and who they do not like. It is important you run for the seat. I have a lot of people approaching me, even at the grocery store, who say they want the appointment. Not a single one of them said they would be willing to work for it. That hard work is how a person gets into office and I believe democracy should be served by an election.”
Martinez pointed out that last summer Ruh had voted to appoint Eaton to succeed her husband. She wanted to know why Ruh was not willing to appoint Eaton now. Ruh pointed out that the vote in July was for a very brief interim. “Two years is different than six months,” he said.
Raft made the point that Eaton was more than qualified to hold the job, and that running for office would subject Eaton to the same type of obloquy that Raft had to endure during the recent campaign when she said she was falsely accused of being insensitive and hostile to the city’s Hispanic residents.
“I don’t think we want to spend $200,000 on a special election for someone who is going to be in office for only eight months,” Raft said. “It is time to get a majority vote of the council to agree to an appointment. Ginger Eaton should fill the vacancy so we can go on with the city’s business. She has given her time to the city. We need an appointment. Ginger is the best choice. No one else here can fill her place.”
Martinez said the council not being at full strength was putting a strain on her in her efforts to represent the city’s residents and attend the myriad of civic and community functions she felt it was the duty of the council to attend. She chided Ruh for not being at ribbon cuttings and other events. Ruh shot back that he had work commitments that prevented him from attending such events on weekdays but that he had served the city faithfully. “I have been on the council since 1998,” Ruh said. “I have done as much as is humanly possible. Many of these events are in the daytime. I have a demanding professional life. I have met my council obligation and met them fully. I am engaged with the city in the evening, not just council meetings but different boards and commissions.” He added, “I don’t look at it as a sacrifice. It is a privilege to serve our community.”
Martinez provided an encapsulation of seven highly public events she had attended as a city representative throughout the community over the last month. She said she was raising one daughter yet of school age and was assisting her older daughter who is now working in the legal profession and that she was also on the verge of becoming a grandmother. “I’m pleading,” she said, in making a pitch to have the council brought to full strength in the near term. “I need help. I’m not too proud to ask for it from my colleagues. Gentlemen, please!”
Dutrey, while indulging unbridled comment from all of the council, did say, “We have to temper our emotions. Let’s keep our emotions down a bit.”
To the suggestions by Martinez and Raft that the 3-to-2 December 3 vote required that the council make the appointment, Ruh responded, “City council is an elected position. The law is clear on that. The December 3 vote is not binding. This is a newly seated council. We’re not bound to that agreement.”
To assertions that the city could not continue to function with a continuous 2-to-2 deadlock on the city council, Ruh pointed out that on virtually every other issue beside filling the council vacancy, the council was in virtual lockstep. “I believe we can live with four members,” Ruh said.
Dutrey told his council colleagues and the audience in the council chambers, “This is not about who has been nominated. It is about the process of making an appointment or holding a special election. This seat does represent 40,000 people in the community.”
The mayor pointed out that the appointment process for non-elected positions such as city committees and the planning commission entailed a formal process of selection, and he said that determining who would fill an elected position should be no less exacting and formalized. While he said he believed an election was in order, he said he believed an appointment, if it is to be made, should at the least entail interviews that would allow “other Montclair residents to apply for the seat.”
Ruh’s proposal that the council schedule a vote at its next meeting to arrange for a special election hung on a 2-to-2 vote, with Martinez and Raft opposed. Ruh then sought to make a compromise proposal that would, in his words, entail having the council at its next meeting “consider all legally available options to fill the vacancy.” That, too, failed, because Raft and Martinez were unwilling to take up anything that might lead to an election.
With Dutrey and Ruh unwilling to support an appointment and Martinez and Raft equally unwilling to vote for an election, Dutrey lamented, “We’re definitely at a stalemate here.”
Upon another motion in which Martinez and Raft sought to take one more stab at making an appointment at the next council meeting, with Ruh opposed, Dutrey voted to bring such an item forward, in the interest of the city.
After the meeting, Dutrey indicated he was yet opposed to making an appointment in principle, but was willing to keep the discussion of an appointment in play to “progress toward some kind of solution.”
The Sentinel has received multiple reports of vandalism at Joshua Tree National Park in California in recent days.
One account held that due to the U.S. federal government shutdown and the lack of park ranger staffing, motorcyclists and some off-roaders exploited the situation to cut down Joshua trees so they could drive into areas where vehicles are banned. In so doing they were said to have done damage to sensitive species and habitat.
One issue in this regard is that relating to Joshua trees themselves. Known variously as the Joshua tree, the yucca palm, tree yucca, palm tree yucca and by the scientific name Yucca brevifolia, these are plants with a range that coincides generally with the geographical reach of the Mojave Desert, where it is considered one of the major indicator species of the region. It occurs between 1,300 feet and 5,900 feet in altitude. Young yucca trees go through multiple stages of development. That youth consists of an extended period of time that a century ago exceeded the average human life expectancy.
Yucca brevifolia can live five centuries or more. Trees take roughly sixty years to mature. Though Joshua trees are fast growers for the desert such that new seedlings may grow at an average rate of three inches per year in their first ten years, for the next fifty years or so their expansion reduces by about half to one-and-a-half inches per year. The tallest of the species will reach as high as 50 feet. Most top out at only about half that tall. The trunk consists of thousands of small fibers. It lacks annual growth rings, making it so other determinants of a tree’s age must be used.
The yucca palm has a top-heavy branch system, coupled with a deep and extensive root system, and roots reach out or down as far as 36 feet. New plants can grow from seed, but in some populations, new stems grow from underground rhizomes that spread out around the parent tree. If a young Joshua tree can survive the harshness of the desert to maturity, it can live for hundreds of years, with some specimens believed to have survived a millennium. Whether the plant can make it through its youth and adolescence to adulthood is a sharp question, though, as the mortality rate for young plants is high.
That is why the vandalism that occurred early this year is alarming and disturbing.
A ranger who is patrolling the park without pay told the Sentinel that there is no question that the government shutdown is having a deleterious impact on the trees.
He said, “Of just what I know of, there have been over a dozen examples of vehicles cutting new roads into pristine areas that have been purposefully preserved for decades in the park. These pirate roads have damaged cherished wilderness. People have knocked down trees or cut locks to go through barriers. We can replace the locks. The trees are irreplaceable anytime this generation.”
On 8 January, the National Park Service announced it would be temporarily closing Joshua Tree National Park “to allow park staff to address sanitation, safety, and resource protection issues in the park that have arisen during the lapse in appropriations.” The announcement further stated, “Park officials are identifying the additional staff and resources needed to address immediate maintenance and sanitation issues and will utilize funds from the park fees to address those issues per the recently updated National Park Service contingency plan during a lapse in appropriations. While the vast majority of those who visit Joshua Tree National Park do so in a responsible manner, there have been incidents of new roads being created by motorists and the destruction of Joshua trees in recent days that have precipitated the closure. Law enforcement rangers will continue to patrol the park and enforce the closure until park staff complete the necessary cleanup and park protection measures.”
Ahead of its termination of its dispatch services arrangement with the City of Ontario’s fire department in favor of being consolidated into the Consolidated Fire Agencies joint powers authority, the Chino Valley Fire District will make an $800,000 upgrade to its dispatch reception and alerting system at all seven of the district’s fire stations in Chino and Chino Hills.
In the 1980s, the City of Ontario leapt ahead of virtually all of the governmental agencies in the region, with what was then its state-of-the-art emergency dispatch system. Multiple agencies on the west side of San Bernardino County contracted with Ontario to provide dispatch service, which was run out of the basement of that city’s fire department headquarters.
Nearly forty years later, other entities have caught up with, and in some cases surpassed what Ontario has to offer.
This week, the Chino Valley Fire Board of Directors approved making an $800,000 upgrade augmentation to its internal dispatch alerting systems at seven fire stations in Chino and Chino Hills to facilitate a previous move to end its contract dispatching arrangement with Ontario and receive
that service from what is known as the Consolidate Fire Agencies Network Program.
The augmentation, known as the West Net First In alerting system is projected to be installed for $800,000, though the board agreed to set aside a 15 percent contingency for change orders, to accommodate an increase in the cost to as much as $920,000. Fire Chief Tim Shackelford would need to first approve those change orders in advance if the cost rises above$800,000.
Newly-elected board member Winn Williams registered his opposition to committing to the contingency. The remainder of the board, Sarah Evinger, John DeMonaco, Harvey Luth and Mike Kreeger acceded to it.
In September, Chino Valley Fire committed to realigning its dispatch services from Ontario Communications to the Consolidated Fire Agencies Joint Powers Authority, which goes by the acronym CONFIRE JPA.
For the sake of compatibility, the West Net First In alerting system had to be installed. West Net First In is a product offered by a CONFIRE-approved vendor, according to district staff report. CONFIRE will take on dispatch service for the district no later than mid-April. The dispatch capability CONFIRE offers is more flexible and responsive, and is cable of providing individualized crew notification throughout the stations with what is termed “specific unit notification signaling,” along with independent turnout timers as well as enhanced functionality throughout the stations, according to the report.
“It better equips the crews to respond more efficiently,” according to the report.
The district’s current alerting system has been in place for 15 years and is obsolescing and is not likely to be updated or revamped. It will take at least a week to install the new system in each station.
Adelanto, led by its newly composed city council, this week made what may have been its first visible significant step toward scraping off the legal barnacles that have come to encrust the hull of the city’s listing ship of state.
Adelanto in 2013, teetering over an abyss of insolvency, declared itself to be in a state of fiscal emergency, a move preparatory to filing for bankruptcy. In 2014, all three of the city’s political leaders up for election that year – Mayor Cari Thomas and councilmembers Charles Valvo and Steve Baisden – were displaced by, respectively, Rich Kerr, John Woodard and Charles Glasper.
In short order Kerr, working closely with Woodard and Jermaine Wright, who had first been elected to the council in 2012, embarked on an effort to convert the city to a cannabis-based economy. Presciently recognizing the massive cultural shift that was in the offing by which more than a century of marijuana prohibition would vanish and the substance, which had already gained acceptance for its medicinal effect, would soon be legalized and legitimized for use as an intoxicant, sought to get in on the ground floor of an industry that would generate tax revenue for the city hand over fist.
The game plan Kerr, Wright and Woodard hatched had as its ultimate goal to transform Adelanto into the marijuana capital of California. They undertook that effort in what they hoped would be bite-size stages, done gradually at first and then at a more accelerated pace. The first move was to embrace what might have arguably been the least controversial aspect of the then-current cannabis movement. In 2015 a council majority – including Kerr, Wright and Woodard, with the somewhat reluctant acquiescence of Glasper – voted to allow the cultivation of medical marijuana in what where represented as tightly controlled environments, those being enclosed, i.e., indoor, nursery facilities in the city’s industrial park. Initially, these operations were restricted to a relatively limited district subject to zoning restrictions and a host of regulations. These commercial operations were to be wholesale in nature only, with sales intended to be made strictly to out-of-town purveyors of medical marijuana. No retail sale of the product was to take place within the city limits, and dispensaries remained off-limits in Adelanto.
Even before that was accomplished the city had casualties. Less than three months into Kerr’s tenure as mayor, long-time City Manager Jim Hart, expressing his doubts about the course the mayor and his council allies were setting for the city, tendered his resignation rather than be fired. He was replaced with City Engineer/Public Works Director Tom Thornton, who within two weeks was experiencing the same misgivings Hart had. Thornton realized that the long-evolved municipal standards and protocols Adelanto and most other cities functioned under were out the window and the application of law and logic were no longer part of the culture at City Hall. What mattered to those in political control was that their will be done. Anything or anyone that stood in the way was to be dispensed with. By June Thornton had resigned as city manager to go back to being public works director, where he remained for another seven months before leaving the city entirely. One of the reasons Thornton was unwilling to stay as city manager was that the controlling council majority – the troika of Kerr, Woodard and Wright – were insisting on the sacking of Senior Management Analyst Mike Borja, Conservation Specialist Belen Cordero and Public Works Superintendent Nan Moore, whom they perceived, perhaps rightfully, as obstructionists to their grand designs.
The council elevated City Clerk Cindy Herrera to first the position of interim city manager and then seven months later city manager outright, confident she would do their bidding.
Simultaneously they were consigning City Attorney Todd Litfin to an assignment he did not want, demanding that he construct a legal scheme under which the sale of marijuana in the city could proliferate. As the city came to the brink of doing just that, passing an ordinance allowing marijuana cultivation in the city’s industrial park, Litfin resigned, to be replaced Julia Sylva, who bounded with reckless abandon into the territory where Litfin was too wary to tread, and she facilitated the call to legitimize marijuana production as key element of the community’s economic foundation.
Sylva, whose willingness to bend the law without it being broken was so crucial to what the troika was doing, burned out rapidly, leaving officially in April 2016 as city attorney, but maintaining a mysterious status as a consulting attorney, continuing to be paid money by the city for no specified reason, inspiring rumors that she had blackmail material on one or more members of the troika and was using it. Sylva was replaced as city attorney by Curtis Wright, of the law firm Silver & Wright LLP.
Once the marijuana camel had its nose under the tent, the troika pressed forward, intent on creating this centripetal vacuum that would suck into Adelanto every conceivable type of commercial venture featuring cannabis, from cultivation to distribution to research to product innovation and creation to manufacturing to sales to clinics to emporiums. Kerr at one point enthusiastically proposed creating a university devoted to all things cannabis.
Along the way, the troika recognized that it would need to ensure that city employees got the message, so they ran litmus tests to determine who was personally loyal to them and who was not. They then empowered through promotion those who met their standard: carrying out their orders implicitly. One of those who failed the test was Public Works Supervisor Nan Moore. She was axed. One who passed was one of Moore’s worker, Don Wappler. Wappler was considered, indeed referred to as, Kerr’s blood brother. Once in place as supervisor, Wappler was free to indulge his own agenda as well. One of these was cashiering an employee he just didn’t particularly like, Jose Figueroa, a laborer in the city’s public works department for 25 years.
The troika, whom Thornton once referred to as “three rogue council members,” continued to grind on. With marijuana operations now being approved left and right, more zones to allow for such operations had to be created. Property that was previously dirt cheap became overnight, pursuant to a zone change allowing for the lucrative commercial cannabis use, worth in monetary value as much as 800 percent more. People were coming into City Hall with suitcases full of cash. Once projects were on the way to completion and inspections had to be completed, pressure was being placed on city employees to look the other way or simply sign documents when no vetting had actually taken place. Members of the council were being paid under the table. Any employee who stood on principle by insisting that the law and ordinances, regulations, standards and protocols be upheld were handed their walking papers. Land use decisions were no longer driven by logical zoning regulations but by connection to the power or money elite. City employees with enforcement or inspection authority were ordered to stand down, or else.
In 2017, Cindy Herrera could not force her staff to process the applications of the backlog of cannabis-related business proposals quickly enough, so Kerr moved to fire her. She wisely returned to her post as city clerk. Curtis Wright reached the end of his legal and ethical tether, and he resigned as city attorney. He was replaced by Ruben Duran.
In November 2017, Councilman Jermaine Wright, no relation to Curtis Wright, was caught by the FBI taking bribes to facilitate marijuana business proposals. The free-for-all didn’t stop. Kerr and Woodard continued to insist that the city suspend its inspection and regulation processes to ensure that cannabis-involved ventures flourished, that fees businesses involved in ventures unrelated to marijuana and its byproducts would otherwise be required to pay before setting up shop be waived when the entrepreneur was trafficking in cannabis.
In November 2018, after extensive bad publicity which included the FBI raiding Adelanto City Hall and Mayor Kerr’s home in May 2018, six months after Jermaine Wright’s arrest, Kerr and Woodard were voted out of office. Glasper had declined to run. They have been replaced on the council by the new mayor, Gabriel Reyes, and councilmembers Gerardo Hernandez and Stevevonna Evans.
Though the troika’s existence came to an end in November 2017 with Wright’s arrest and its reign was attenuated until June 2018 when Kerr’s political backers were able to vector enough money to elect a Kerr and Woodard ally, Joy Jeannette, to fill the vacancy, the hold Kerr had over City Hall resumed last summer and lasted until Reyes, Hernandez and Evans were sworn in last month. One of the first things Kerr, Woodard and Jeannette effectuated in July was to fire both Gabriel Elliott and Cindy Herrera.
That proved too much for Duran, who tendered his resignation.
The body count during the four years of the Kerr Administration is staggering: city managers Hart, Thornton, Herrera and Elliott along with Brad Letner, who briefly filled in during Elliott’s forced administrative leave and like all the others did not please Kerr; city attorneys Litfin, Sylva, Wright and Duran; City Clerk Herrera, who holds the distinction of being twice terminated by Kerr & Company; contract City Engineer Wilson So; Assistant City Engineer Aaron Mower; Senior Planner Mark De Manincor; Conservation Specialist Belen Cordero, Senior Management Analyst Mike Borja, Public Works Superintendent Nan Moore; information technology division employees Ben Pina, Ibriham Abudluld and Adam Watkins, all of whom were beheaded after it was determined they were cooperating with the FBI in its probe of City Hall; and the aforementioned public works employee, Jose Figueroa.
At least eight of these have filed suit against the city or are on the brink of doing so. Two other former Adelanto employees, Adrianna Ortiz, a contract worker, and Rachel Suraci, Elliott’s one-time secretary, are suing the city on issues that do not directly involve city council action against them.
In addition, the shabby treatment accorded city code enforcement officers Steve Peltier, Roman Edward De La Torre, Apolonio Gutierrez, Amber Tisdale, and Gregory Stephen Watkins prompted them to lodge written complaints with the city, alleging Kerr and Flores acted to shield certain cannabis-related businesses from monitoring and enforcement.
Adelanto’s potential liability on the cases already filed is well into eight figures. The city earlier managed to have lawsuits filed by Borja, Moore and Cordero dismissed on what the city maintained were free speech grounds. The trio’s attorney, James Alderson, appealed those dismissals and prevailed with each one. Now, with Borja, Moore and Cordero winning the appeals portion of their cases, which included three findings by the appeals court that there is a likelihood that the plaintiffs will prevail in their suits, the new city council is at a crossroads. Its members must determine whether they collectively want to continue to fight on behalf of the city and its residents a battle that their predecessors, with whom they were themselves at political odds, entered into against almost a score of former city employees.
This week, it appears that cooler heads prevailed with regard to at least one of those lawsuits.
The city settled for $75,000 and a monthly lifetime benefits stipend the lawsuit brought by Figueroa in 2017 over his 2016 firing imposed by Wappler. Figueroa and his attorney, Alex Galindo, had progressed nearly seven-eighths of the way toward establishing that, as his suit alleges, he was fired arbitrarily by Wappler, who violated protocol by failing to establish grounds for the dismissal and just cashiered Figueroa on the spot without a bona fide written warning or a so-called Skelly hearing to provide a forum to get the reasons for termination on the record or allow Figueroa to contest those grounds. The city’s move to settle was a shrewd one in multiple ways. Wappler had done virtually nothing to lay the groundwork for the firing, and there was reason to believe that documentation relating to Figueroa’s termination such as discipline slips were backdated. Moreover, going to court against Figueroa could have resulted in the airing of the circumstance of Wappler’s advancement, which came because of the termination of his predecessor Nan Moore. Litigating those issues might have provided Moore with even more material than she already has to strengthen her case.