(November 2) In a ruling that on balance was more favorable to the defense than to prosecutors, the California 4th District Court of Appeal in Riverside on October 31 clarified what issues will be heard when the celebrated Colonies Settlement Political Corruption case goes to trial.
The appeals court, while rejecting a request by prosecutors to reinstate previously dropped bribery charges against the Rancho Cucamonga developer at the center of the case, sided with the prosecution in its request that charges of misappropriation of public funds against the three other defendants in the case that had been dropped be reinstated. In another portion of the appellate ruling favorable to the defense, conflict-of-interest charges against two of the defendants were also dismissed.
The Colonies Settlement Political Corruption case grew out of the November 26, 2006 3-2 vote of the San Bernardino County Board of Supervisors as it was then composed to approve a $102 million settlement of the civil action brought against the county and its flood control division by the Colonies Partners over drainage issues at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Prosecutors allege that earlier in 2006 Jeff Burom, who was with Dan Richards one of the two managing principals of the Colonies Partners, conspired with former sheriff’s deputies’ union president Jim Erwin to blackmail two of the then-members of the board of supervisors, Bill Postmus and Paul Biane, by threatening to reveal in mailers to be sent to voters the former’s homosexuality and drug use and the latter’s insolvency. After the November 2006 vote in which Postmus and Biane joined with their board colleague Gary Ovitt to approve the settlement, prosecutors maintain Burum during the first six months of 2007 delivered four separate $100,000 bribes to Postmus, Biane, Erwin and Ovitt’s chief-of-staff, Mark Kirk, in the form of political donations to political action committees the four had founded or controlled.
Postmus and Erwin were indicted on bribery and extortion counts relating to this alleged scheme in February 2010. After Postmus in March 2011 entered guilty pleas on 14 felony counts contained in that first indictment, he appeared as the star witness before a newly impaneled grand jury that heard a total of 45 witnesses in April 2011. The following month that grand jury handed down a superseding 29-count indictment naming Burum, Erwin, Biane and Kirk, who were charged variously with conspiracy to commit a crime, bribery, conflict of interest, tax fraud, tax evasion, perjury, forgery, and aiding and abetting.
In August 2011, after demurrers were filed on behalf of Burum, Erwin, Kirk and Biane by their lawyers, Judge Brian McCarville granted some but not all of those defense requests to throw out charges based on their lack of clarity or insufficiency, dismissing five of the counts lodged against Burum, two of the counts Biane faced, two of the counts Erwin was charged with and one count pending against Kirk.
The prosecution then appealed McCarville’s ruling to the appellate court to have the charges reinstated. Defense attorneys likewise filed with the appellate court, arguing that all charges that had been tossed should have been dismissed and asserting that McCarville should have sustained more of the demurrers than he actually did.
After nearly a year of consideration, the 4th District Court of Appeal in a 41-page decision written by Justice Art W. McKinster and joined by associate justices Betty Ann Richli and Douglas P. Miller, upheld McCarville’s dismissal of part of a conspiracy charge plus four other counts against Burum, and tossed out a conflict of interest charge against Burum. At the same time, the appellate justices restored some elements of the conspiracy charge along with an aiding and abetting charge against Burum.
In the case of Erwin, the appellate judges dismissed three charges against Erwin that included engaging in a conflict of interest and that he aided and abetted Biane in his reception of a bribe. The court restored one charge against Erwin, that of misappropriating public funds. It upheld McCarville’s denial of a bid to dismiss the conspiracy and two other charges.
For Kirk, the judges denied his request to throw out two charges pertaining to conspiring with Burum and misappropriation of public funds. They also restored a charge that he had improperly lobbied his boss, Ovitt.
Members of the prosecution, including deputy state attorney general Melissa Mandel, declined comment.
Raj Maline, Erwin’s attorney, said that McCarville’s ruling last year taken together with the appellate court’s ruling this week showed that “The prosecutors are having a hard time even coming up with something to allege. That the Court of Appeal knocked out three of the counts against Mr. Erwin shows the prosecution has a problem stating a cause of action in this case.”
Maline said he is not going to appeal the matter any further prior to trial. “We’re eager to get back to the trial court, so we can show the world Mr. Erwin is innocent of these charges. We do not want to delay this any further in the appellate region. We want to get back to the trial court and present our defense. Hopefully that will happen very soon.”
Stephen Larson, the attorney for Jeff Burum, told the Sentinel, “All of the bribery counts have been dismissed against my client. We believe the remainder of the charges are groundless factually as well as a matter of law.”
Larson said he was not sure at this point whether the prosecution will go forward with the case against Burum, but said that if it does, “We will welcome the opportunity to take this case to trial. There are serious legal deficiencies with regard to the two remaining counts against my client. We’ll be asking the trial court to dismiss the two remaining counts.”
Larson added, “We believe this was a politically motivated prosecution from day one. It is entirely improper for any prosecuting agency to allow political motives to affect their prosecutorial discretion. We are looking forward to presenting as complete a picture as possible of what happened and why.”
A petition with a court to dismiss a case prior to trial in California is known as a 995 motion. The Sentinel has learned that two such likely motions will be based on statute of limitations considerations as well as grand juror and prosecutorial misconduct.