Creighton Urges Upland Council To Nix Administrative Citation Ordinance

(March 22) A member of Upland’s city council advisory committee said he will not support the administrative citation ordinance his panel has been tasked with evaluating prior to an upcoming vote.
On March 27, the city council advisory committee, chaired by Tom Mitchell, is scheduled to reconsider a redrafted form of the administrative citation ordinance that was considered by the city council on July 30 and again on August 13 last year, and provide a non-binding recommendation on whether to go forward with the ordinance. That ordinance in its original form was given initial approval but later abandoned when a firestorm of protest manifested at the city council meeting on August 13, when the ordinance was scheduled for a required “second reading,” i.e., final approval.
Prior to, and at, the July 30 meeting when the ordinance was first considered, neither the ordinance itself nor its language were made available to the public.  Only after direct appeals by the public and the press did City Hall relent and release the text of the ordinance six days before the council was scheduled to approve it on August 13.
The ordinance as originally drafted substantially intensifies City Hall’s bureaucratic power and increases the amounts of the fines that can be levied. Moreover, the ordinance also sets up a policy similar to that utilized in other municipalities that empowers the city to not only issue citations but adjudicate them and set the penalty, precluding, at least in the first three phases of the administrative process, the individual who is cited from having the matter heard and the fine set by an independent arbiter, such as the municipal or superior court. Only upon being adjudged guilty and assessed with the fine, can a resident or business entity that is cited appeal the matter to an actual court, and then only upon posting the amount of the fine as a bond.
One of the more controversial provisions of the ordinance is its empowerment of the city’s community development director to levy, entirely at his or her own discretion, fines of up to $1,000 per day.
On August 13, the council chambers  filled with residents and local business owners who came to weigh in against the ordinance after it was approved by a first 4-0 vote on July 30. Also present were Mayor Ray Musser and city manager Steve Dunn, both of whom were not in attendance at the July 30 meeting. Several residents and business owners questioned Community Development Director Jeff Zwack’s assertion that the ordinance was not intended to generate revenue for the cash-strapped municipality. Zwack and the council also found themselves under attack for withholding the text of the ordinance from the public.
The council at that point tabled the ordinance, and referred the matter back to staff for further evaluation.
In January, at Musser’s urging, the city council advisory committee took up active consideration of the administrative citation ordinance. City staff, particularly Zwack, insist that the city needs administrative citation authority to deal with intractable code enforcement problems. While acknowledging that in the neighborhood of 95 percent of residents and businesses cited under the current code enforcement process readily come into compliance, Zwack maintains that the city needs the administrative citation ordinance as a tool to force the roughly five percent of those who after being cited do not cooperate and comply with the city’s codes and standards and refuse to come to heel.
Ironically, Musser, who did not vote for giving the city’s code enforcement division added power the first time the matter was considered, appears to be the member of the city council most supportive of instituting the administrative citation ordinance now. Musser’s appointment to the city council advisory committee, Mitchell, likewise appeared to be ushering his fellow committee members toward making a recommendation that the city council adopt the ordinance. After examining the ordinance in October, the committee took the matter up again in February, at which time Mitchell said the committee would “hopefully” endorse the ordinance at its meeting next week.
Mark Creighton, the member of the city council advisory commission appointed by councilman Gino Filippi, however, told the Sentinel he is not favorably disposed toward the ordinance and infusing in city officials any more citation and fining authority than they already have. “This is not an ordinance that is going to breed community goodwill,” Creighton said. “I did not see a need for this when they proposed it six or seven months ago and I don’t see anything that has changed so that we need to give our code enforcement crew any more power than it already has. We have the ability to impose fines on people. What this does is give the city more power to hurt people and businesses, to bully them. They may have redrafted the ordinance slightly, but that doesn’t alleviate my fear that this could be or will be abused.“
Creighton said he was not convinced the city had benign intent in drafting the ordinance.
“I sense there is an ulterior motive here,” he said, suggesting that in addition to being a revenue source the ordinance could be selectively applied “the next time somebody wants to drive what they consider to be an undesirable business out of town.”
In several ways,  Creighton said, “This is more of a weapon than a remedy.” Moreover, he suggested, it will inadvertently turn the code enforcement division into a cat’s paw that residents can use against neighbors they dislike or business owners can use against competing interests. “Something like this can be very easily abused. It can be used for the exact reasons you don’t want it used for. The little old lady who didn’t mow her grass will get cited. We shouldn’t be citing her. If she is too old to mow her lawn and is living on a fixed income, then we should mow her lawn for her. We’re a community, not an enforcement agency.
“I don’t see this as a way to improve our city,” Creighton continued. “With this we will be dragging Upland into the gutter. What this will do is institute new ways to screw with people. This will give your neighbor the ability to make trouble for you and potentially cost you money. What are we going to do when two neighbors who don’t get along start going back and forth and they bring the city into it? No one has proved to me that we need this ordinance. Yes, we have some problems with properties or businesses that do not meet our code. But we already have ordinances. Mr. Zwack said we need to be doing this because Ontario does it. Is that the justification? Because Ontario does it?  Ontario is in far worse repair than Upland is. I don’t see any glaring problems where we need to start fining people a thousand dollars a day.”
Creighton said he did not know whether he would be able to sway the committee from supporting the ordinance and would not venture a prediction about whether the city council would enact it.
“All I can tell you is I am not supporting it,” he said.

Barstow Says Yes, 29 Palms Says No To New Murals

(March 22) Efforts to perk up the aesthetics in two of San Bernardino County’s desert cities had diametric outcomes this month.
In Barstow, artist Kim Capp put the finishing touches on a mural which celebrated Route 66 as the “Main Street of America.”
In Twentynine Palms, the city council rejected a proposal to have artist Art Mortimer complete a mural featuring depictions of Bill Keys’ life.
Both murals, the one completed in Barstow and the one put on hold in Twentynine Palms, were intended as celebrations of local history.
In Barstow, Capp’s artwork was put on a brick wall along the Route 66 Motel and commemorated Barstow as a point along the highway, first established in 1926, linking Chicago and Los Angeles. Capp’s completed mural depicts the eight states  – Illinois, Missouri, Kansas,  Oklahoma, Texas, New Mexico, Arizona and California – the highway runs through.
In Twentynine Palms, the city’s Action Committee had called upon the city to fund Mortimer’s tribute to Keys, one of the most colorful of local characters. A Nebraska native who worked as a deputy sheriff in Mohave County in Arizona, Keys arrived in the environs of Joshua Tree National Park in 1910, where he made the acquaintance, and eventually acquired the ranch, of notorious cattle rustler Jim McHaney. What became known as the Keys Desert Queen Ranch was a prime example of the innovation and resourcefulness of the region’s early settlers, with an extensive complex of small frame buildings.  Keys cannibalized an old gold ore crushing mill that had been located in Pinon Wells and relocated the late-19th Century two-stamp mill machinery to Joshua Tree, dubbing it the Wall Street Mill. He became embroiled in a dispute with Worth Bagley over access to the Wall Street Mill, and in 1943 shot and killed him. Keys was tried for murder and convicted, serving six years in San Quentin Prison. He was paroled in 1950 and was pardoned in 1956 largely as a result of the efforts of Erle Stanley Gardner, author of the Perry Mason novels.
The Twentynine Palms City Council unanimously denied a $10,000 funding request from the Action Council for 29 Palms to pay for Mortimer’s work decorating a wall of the Siam Alterations building on Adobe Road, opposite an existing mural of pioneer constable Jack Cones.
Both Mortimer and his Barstow counterpart, Capp, are accomplished muralists. Mortimer is responsible for the Battle of the Bell mural at Twentynine Palms High School.  Capp’s previous work includes murals at the Platas Mexican Restaurant as well as on a hill off Highway 58.
Barstow and Twentynine Palms each have nonprofit groups that support and promote mural painting. In Barstow that group is known as Main Street Murals and it has succeeded in completing an outdoor gallery of murals around the city of 22,639.  In 25,048-population Twentynine Palms, the Action Council For Twentynine Palms fills that role, having completed 22 murals around the city utilizing private funds, although in 2012-13, the city’s general capital projects fund has $20,000 earmarked for public art.

Colonies Settlement Political Graft Appeal Deals With Arcane Legal Issues

(March 22) The prosecution’s appeal to the California Supreme Court to have bribery, conspiracy and related charges reestablished against Rancho Cucamonga developer Jeff Burum and three former public officials he is alleged to have bribed rests on a number of obscure legal issues.
In her opening brief to the Supreme Court,  Supervising Deputy Attorney General Melissa Mandel utilized 43 pages and  13,541 words in an effort that referenced not only state laws and case law, but statutes and court decisions relating to bribery and public corruption cases outside of California to assert that both San Bernardino County Superior Court Judge Brian McCarville and the Fourth District Court of Appeals erred in dismissing what is perceived as the central elements of the Colonies Settlement Political Corruption Case  against Burum and certain portions of the case against former sheriff’s deputy union boss Jim Erwin, former county supervisor Paul Biane and Mark Kirk, who was chief of staff to supervisor Gary Ovitt.
Burum, Erwin, Biane and Kirk, along with former county supervisor Bill Postmus, are the central figures in the Colonies Settlement Political Corruption Case, which 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, Burum, who with Dan Richards was one of the two managing principals of the Colonies Partners, conspired with Erwin, who was the former county sheriff’s deputies’ union president, to blackmail then- supervisors Postmus and 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 the alleged scheme in February 2010. Identified in that indictment as unnamed co-conspirators were Burum, Richards, Biane, Kirk and a public relations consultant working for the Colonies Partners, Patrick O’Reilly.  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 insufficiency or lack of clarity, 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 petitions 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 on October 31, 2012 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 him 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.
In December, the state attorney general’s office, which is acting in concert with the San Bernardino County District Attorney’s office in prosecuting the matter, appealed the Fourth District Court of Appeals ruling to the state’s highest court, seeking reinstatement of the four bribery-related charges and a public officer crime count against Burum, the conflict of interest and aiding and abetting charges against Erwin, and the misappropriation of public funds counts.
In the indictment, Burum was not directly charged with bribery. Rather, the grand jury complied with prosecutors’ request that Burum be indicted on four counts of aiding and abetting bribery. Prosecutors maintain that responsible law enforcement officials did not become aware that the bribery had taken place until the Fall of 2008, when Adam Aleman, who had worked as a field representative for Bill Postmus when he was supervisor and later served as assistant assessor when Postmus was subsequently elected county assessor, told investigators about the alleged extortion and bribery. Since the superseding indictment did not take place until May 2011, Burum could not be charged with bribery because of a three-year statute of limitations on bribery. Instead, he was charged with four counts of aiding and abetting the receipt of a bribe, which carries a four-year statute of limitations.
When Burum’s attorney, former federal judge Stephen Larson, challenged the indictment through the demurrer process, he maintained prosecutors had “creatively but improperly” sought to get around the three-year statute of limitations on bribery by substituting the aiding and abetting charges. At issue in that challenge is Larson’s assertion that California case law and what in legal circles is known as Wharton’s rule prohibit the charging scheme utilized by prosecutors against his client.
Wharton’s rule, named for Francis Wharton, an American criminal law author, is also known as the concert-of-action rule. It prohibits the prosecution of two persons for conspiracy to commit a particular offense when the crime is of such a nature that two individuals must participate in its commission.  Thus, cooperation by two persons to commit a particular crime cannot be prosecuted as a conspiracy if the crime necessarily involves two people. Conspiracy can only be charged in such cases if an additional person participates in the crime to enlarge the scope of the agreement.
Moreover, Mandel referenced the circumstances and application of logic pertaining to two cases, People v. Clapp  and People v. Wolden, in making her argument that the case against Burum should be reestablished in total.
The Clapp case, from 1944, pertained to three women accused of involvement in an abortion, which at that time was illegal, and the conviction of the woman on whom the abortion was performed. The court held the woman submitting to an abortion was not punishable as a principal under one section of the penal code because her conduct was prohibited under another section. As such she was deemed not to be an accomplice in the crime of the other parties.
Larson utilized the case of People v. Wolden, which in itself relied upon the precedent of the Clapp Case, to convince both McCarville and the appellate court to dismiss the charges against his client. Russell Wolden, the one-time assessor of San Francisco County was indicted on 10 counts of accepting bribes and one count of conspiracy to accept bribes. One bribery count was dismissed and the jury failed to reach a verdict upon another and found him guilty of the conspiracy charge and eight counts of accepting bribes. Upon appeal, it was determined that the giver and receiver of a bribe are not guilty of a conspiracy, because the two crimes require different motives or purposes and that the giver of the bribe is not an accomplice in the “separate and distinct crime” of bribe taking.
In her brief, Mandel summarizes the issues before the State Supreme Court as “Can a bribe offeror be charged with conspiracy to commit bribery, and aiding and abetting the receipt of a bribe, where his conduct satisfies the elements of those crimes?” and “Can a private person be charged with aiding and abetting a criminal conflict of interest violation?”
Mandel then seized upon what she implied was a contradiction in the Fourth Court of Appeals’ logic, pointing out that its ruling would hold Erwin, who was acting as Burum’s agent in the alleged effort to extort Postmus and Biane, to account but would allow Burum to elude having to answer. “The Court of Appeals affirmed, holding that as matter of law, a person who offered a bribe could not be charged with aiding and abetting the receipt of a bribe,” Mandel wrote in her brief. “As to Erwin, however, the Court of Appeal agreed with the trial court that there was no legal impediment to charging an intermediary with aiding and abetting the acceptance of a bribe. This Court should overrule Clapp. Its faulty analysis has muddied the law, and its viability is questionable based on subsequent opinions. The absurd results foreshadowed by the dissent in Clapp become a reality here, where the mastermind of a massive bribery scheme is given a free pass while his underling is held criminally liable for the same conduct. Burum’s status as  the offeror of bribes did not foreclose his liability for aiding and abetting the acceptance of bribes, as set forth above. Any person, including a bribe offeror, can be liable for conspiracy and aiding and abetting the receipt of a bribe if his conduct satisfies the elements of aiding and abetting liability. The indictment alleges Burum and Erwin conspired to, and did, aid and abet the receipt of bribes by Postmus and Biane. Law, logic and public policy compel the conclusion that the prosecution should not be foreclosed from charging and proving that Burum conspired to and did aid and abet the receipt of bribes simply because he also offered the bribes. People v. Clapp should be overruled, because it erroneously holds that a person cannot be an accomplice to one crime if his or her conduct with respect to a transaction violates another provision of criminal law.”
Another issue Mandel takes up is the distinction or lack thereof between being an accomplice in a crime and someone who aids and abets someone else involved in the same crime, harkening back to a 98-year-old case, People v. Coffey, which broadly defined the role of accomplice.  “ Coffey held that in every case, as a matter of law, the giver and receiver of bribes were accomplices,” Mandel stated, going on to assert the court hearing the Coffey case had “no problem” with the reasoning that “the law has separate crimes.” Mandel said “holding parties accomplices to each other for the commission of these acts would make them principals in one crime and accomplices in the other at the same time for the same act.”
Furthermore, Mandel asserted, “Wolden was wrong. The crime of bribery does not require the participation of two or more persons. Participation of the offeror is not an element of the charge of accepting a bribe, and participation of the recipient is not an element of offering a bribe. In any event, the Court of Appeal’s holding on the bribery charges should be reversed, because Wolden misapplied the Clapp rule to bribery charges, and the rule is expressly inapplicable under the circumstances presented here. Thus, the bribery charges against Burum and Erwin should be reinstated. The conspiracy charge should also be reinstated. The Court of Appeal applied a narrow principle of federal common law (Wharton’s rule) in a manner that conflicts with United States Supreme Court and Federal authority, and is inconsistent with this Court’s decisions. Applying Wharton’s Rule here violates public policy because it cloaks bribe offerers in a blanket of case law historically used to protect vulnerable, victim-like individuals. Finally, this Court should reinstate the conflict of interest charges against Burum and Erwin and hold that private persons who aid and abet a criminal conflict of interest under Government Code section 1090 may be charged as principals.”
Larson and the defense attorneys for the other defendants have yet to respond to Mandel’s brief and will have the opportunity to do so before the Supreme Court rules on the matter. Those attorneys are prohibited from engaging in a public discourse about the case. Thus, a direct refutation of Mandel’s assertions is not presently available.
Nevertheless, from prior filings with the trial court and the Fourth Appellate Court, it is possible to  chart portions of the defense’s position and partially extrapolate the other elements of the defendants’ responses to the prosecution’s allegations and legal theories. Based upon those filings, the defense asserts that the prosecution’s charges are impermissible as a matter of law.
Under state law, Larson asserts, an alleged briber cannot be charged with crimes related to an official’s acceptance of the alleged bribe, documents filed with the court state.
Larson maintains that charges of aiding and abetting in misappropriation of public funds and aiding and abetting in a conflict of interest in a contract lodged against Burum, a private citizen, need to be dismissed because such charges can only be applied to public officials.
Not only do all of the charges in the indictment fall outside of the statute of limitations, according to defense attorneys, the charges are improper entirely, they maintain, because no acts of bribery took place.
In his response to the prosecution’s notice of its appeal to the Supreme Court, Larson in December said the Fourth Appellate Court’s decision to dismiss the bribery-related charges was based on sound reasoning and Mandel’s citation was to a case that did not pertain to bribery and was irrelevant to the appellate court’s decision.
“The Court of Appeal’s decision is entirely consistent with every published case addressing these already well-settled issues,” Larson wrote in his response to Mandel’s appeal. “The only cases that have addressed this question have squarely held that a bribe-giver cannot be charged with aiding and abetting the alleged receiver of bribes.”
According to Larson, the prosecution’s overzealous prosecution of the case is rife with political motivation and vindictiveness toward his client, and the prosecution’s assertions misrepresent the circumstances that led up to the filing of the lawsuit and the efforts of several individuals, including some of the defendants, to settle the matter. “The People’s unsupported recitation of facts at this stage of the case mischaracterizes the record and demonstrates their lack of prosecutorial objectivity. What the People fail to mention is that the $102 million settlement that Mr. Burum supposedly obtained through bribes actually involved the taking of over 60 acres of prime real estate by the county of San Bernardino from Mr. Burum’s company, Colonies Partners, L.P., for the construction of a regional flood-control facility. Thus, Colonies was constitutionally-entitled to just compensation,” according to Larson.

County Has Falling Out With Another Contractor

(March 22) The county has terminated its $411,900 contract with Palm Desert-based Falcon Builders over that company’s unwillingness to provide a construction bond relating to the sidewalk and tree replacement project at the Foothill Law & Justice Center in Rancho Cucamonga.
The county has budgeted $522,000  for the project, which is to entail the replacement of the sidewalks around the courthouse and its parking lots that have been uplifted and damaged by tree roots from the mature trees adjacent to the sidewalks that are now more than 25 years old. Only the trees that have been deemed by a certified arborist to not be viable will be removed and replaced. Design costs on the undertaking total $31,307; project management and inspection costs are pegged at $37,603; and the scheduled construction costs are $411,900 with a construction contingency of $41,190.
After the board of supervisors in October authorized the county’s architecture & engineering department to advertise for competitive bids on the project, on November 2, 2012, twenty contractors attended a mandatory pre-bid meeting. On November 20, 2012, five bids were received. On December 18, 2012, the board found the first and second low bidders to be non-responsive and the board awarded a construction contract to Falcon, the third low bidder.
“The contract documents require that Falcon furnish a payment bond and a performance bond within ten calendar days of the contract award,” the director of the architecture and engineering division, Carl Alban said. “Despite multiple requests from architecture & engineering, Falcon has failed and refused to provide the required bonds in a timely manner. Architecture & engineering sent a written request to Falcon on February 21, 2013, requiring delivery of the required bonds by 4 p.m. on February 28, 2013. Falcon failed to provide the requested bonds by the requested date and time. Falcon Builders, Inc. posted a bid bond issued by American Safety Casualty Insurance Company, as surety, which provided that if Falcon failed to provide the required payment bond or performance bond then the surety, or Falcon, would pay the county the damages the county actually suffered by Falcon’s failure to provide bonds, not exceeding the bid bond amount of $41,190. A&E is currently in the process of determining the amount of damages the county will sustain and is considering having the project constructed by the county’s job order contractor. When the amounts of damages are determined, they will be submitted to the surety.”
Last week, the board of supervisors canceled and terminated the Falcon Builders contract.

County Family Service Workers To Travel To Veracruz To Return Children To Father

(March 22) San Bernardino County is paying $3,228 to cover the out-of-country travel and expenses to Veracruz, Mexico for two children and two county of San Bernardino employees so those children can be delivered into the custody of their father.
According to Deanna Avey-Motikeit, the county of San Bernardino’s director of children and family services, two division employees have been called upon to escort the children to Mexico to comply with an order of the San Bernardino County Juvenile Court.
“On June 30, 2011, the county of San Bernardino Department of Children and Family Services removed the two children from their mother’s care due to her inability to protect them,” Avey-Motikeit told the board of supervisors. “At that time, the father’s whereabouts were unknown and the children were placed in foster care as they had no relatives who reside in the United States. On July 29, 2011, at the Department of Children and Family Services bequest (sic), the Mexican Consulate began their search/investigation of the children’s father. In November 2011, the father was located in Veracruz, Mexico, where a home assessment was conducted by the Mexican Consulate. On September 20, 2012, the Department of Children and Family Services received the final home assessment from the Mexican Consulate stating the father’s appropriateness for placement of the two children. On September 24, 2012, the court ordered the two children back to the parental home of their father with the case to be dismissed upon their reunification with the father. Since this time, the Department of Children and Family Services has been working on acquiring the appropriate documentation and travel arrangements for the children’s placement with their father in Mexico.”
Avey-Motikeit said that having the two county social workers accompany the two children on the flight to Mexico is in the interest of the children’s welfare. “One social worker has been responsible for the reunification process for this particular family and has bonded with the children; and the additional social worker is bilingual in English/Spanish and will act as a translator to assist in the permanence efforts of the two children for placement with their father in Mexico.”
Avey-Motieit added, “As dependents of the San Bernardino Juvenile Court, the two children are provided reunification services, which may include transportation costs for placement, by the Department of Children and Family Services pursuant to California Welfare and Institutions Code § 202 and 361.5. The Department of Children and Family Services has obtained authorization from the court to return the two children, ages four and eleven, to their father now living in Mexico where he has completed his court-ordered home study.”
It is anticipated the social workers and children will depart on March 24 or March 25.

DA’s Refusal To File Assault Charges In Yucca Valley Prompts Complaint

(March 22) A Yucca Valley man has lodged an official protest with the sheriff’s department, the district attorney’s office and Yucca Valley town officials over what he says is the failure by officials to take action against a woman he says sought to run him down while he was walking along a dirt road last December.
Fritz Koenig, who lives on Hoot Owl Trail in Yucca Valley, said he was nearly run over by Beverlee Larrson on December 14 after Larsson purposefully angled her vehicle at him in an effort to have him leave the area.
Koenig lives roughly a quarter of a mile from Larsson, who resides on Grand Ave. Koenig reported that he had grown concerned over  a series of burglaries that had occurred in the rustic residential area in which he lives, known as Boulder Ridge, in late November and early December. His interaction with the sheriff’s department in reporting those burglaries resulted in an indication that investigators would need more information to pursue the case.
On December 14, Koenig said, he was attempting to trace visible footprints along Hoot Owl Trail, Tish TriBrock Road, Plaza Del Amigo Road and Grand Avenue when his activity triggered the barking of dogs at the Larsson residence, located in the 6000 block of Grand Avenue.
According to a police report by sheriff’s deputy Adrian Garcia, Koenig, who was still in the roadway on Grand Avenue, and Larsson’s husband, who was on his property, were engaged in a conversation about the recent burglaries and Koenig’s tracing of foot impressions he believed might be those of those responsible for the burglary when Beverlee Larsson emerged from her residence.
While Koenig was yet engaged in conversation with Mr. Larsson, Beverlee Larsson told Koenig that he should leave and that he was trespassing on her property. She then got into her car and backed it out onto Grand Avenue, and then continued to back the car toward Koenig.
Garcia’s report states that “She backed up onto the road from her driveway and stopped approximately 40 feet from him. Koenig said that Beverlee Larsson spun her tires in an attempt to intimidate him and scare him. She then backed toward him and got a little bit closer while spinning her tires. Larsson never struck him with her vehicle, however. Koenig felt  she was trying to hit him and that is why she kept backing up. Koenig said that behind him was a large dirt berm in  which he had to get onto, to get off the roadway and out of her path.”
Garcia said he spoke with Beverlee Larsson and she told him that when she saw Koenig speaking with her husband, she told him to leave and that he was on their property
When Koenig did not leave, Garcia’s  report continues, “Beverlee said she got into her vehicle and her whole intention was to drive by Koenig on the roadway and create dust. Beverlee said because this is a dirt road, she is able to create dust and that is all she wanted to do. Beverlee did admit to backing up out of her driveway and spinning her tires. She remembers spinning her tires about twice. I asked Beverlee   how far away she was when she backed up toward Koenig. Beverlee showed me the distance pointing to a tree on her property and a wooden deck. I saw this distance was approximately 10 to 15 feet.”
In his report, Garcia indicated that Koenig was able to show him “possible foot impressions along Hoot Owl Trail in which he was tracking.  He pointed out various shoe impressions within the sand and showed me different areas where he had found them.”
After Garcia’s report was forwarded to the district attorney’s office, Simon R. Umscheid, the supervising deputy district attorney in Joshua Tree, declined to file charges against Beverlee Larsson.
In response, Koenig has sent letters to numerous public officials, including newly-elected Yucca Valley Councilman Bob Leone, who is also a former New York City and Los Angeles police officer; former Yucca Valley councilwoman Lori Herbel, Rae Packard, the president of the Morongo Basin Property Association; and Dr. Curt Duffy, a local officer in the Morongo Basin Democratic Club.
In that letter, Koenig cites jury instructions provided in assault cases which state that a jury should determine an assault occurred if “the defendant did not act in self-defense or in defense of someone else… with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person” and that the defendant acted “willfully” and “was aware of facts that would lead a reasonable person to realize that his/her act by its nature would directly and probably result in the application of force to someone.”
Koenig further referenced jury instructions that state “The People are not required to prove that the defendant actually touched someone” and that “No one needs to actually have been injured by defendant’s act.”
In his letter, Koenig asserts that “Spinning car tires out while pointing that car at a person is an act  which ‘by its nature would directly and probably result in the application of force to a person.’  Once the momentum is started, the applications of force to a person is probable.  Clearly our local DA has not properly applied the law of assault to the facts of Beverlee Larsson’s actions against me with a deadly weapon.”
In his report, Garcia said Beverlee Larsson “said she has ongoing civil issues with Koenig.”
Beyond confirming that it has not filed charges against Beverlee Larsson, the district attorney’s office had no comment on the matter.

Appeal Of Permit At Former Déjà Vu Site Will Not Mean Strip Club Return

(March 22) The appeal of the county planning commission’s approval of a conditional use permit to transform the now shuttered Déjà Vu strip club in the unincorporated county area near Montclair into a sports bar or comedy club does not carry a petition that the adult entertainment aspect of the venue be revived, a county land use officer told the Sentinel.
The Déjà Vu, which was established as a club featuring topless dancing in the 1980s, became the object of dispute with the county’s planning division more than two decades ago over activity in and around the club as well as its location at the northwest corner of Central Avenue and Mission Boulevard. In 2002, after legal sparring between the county and the club’s ownership, Michigan-based Tollis, Inc., a legal settlement was arrived at by which Tollis agreed to raze the adjoining motel which rented rooms by the hour and make changes to the landscaping, lighting and maintenance and security of the property in exchange for being able to continue to operate as a strip club for ten years.
Last year, the county moved to enforce the provision forcing its cessation as a strip club and Tollis reluctantly acceded to transforming the club into a non-adult entertainment venue or sports bar, while maintaining its liquor license.
The conditional use permit for the sports bar or comedy club called for further changes with regard to the property, in particular the demolition of the large billboard sign at the front of the property and a change in the external lighting, which entailed a rotating projector which transformed the color of the building from red to pink to purple to blue to green at night.
Tollis appealed the planning commission’s action to the board of supervisors and previous notice was given that the appeal could be heard as early as last week. The matter has been continued to March 26.
The public noticing of the appeal did not specify the grounds for Tollis’ request, leading to some speculation that an effort was underway to reestablish the 7,048 square foot nightclub building at the 1.22-acre site as a strip club.
The county’s planning director, Terri Rahhal, however, last week told the Sentinel that the appeal of the conditions of approval was not to the nature of the entertainment to be allowed at the venue but rather with regard to signage, lighting and security.
“The conditions of approval related to the removal of the existing sign and conformance to our current signage standards,” Rahhal said. “They also objected to the lighting requirements and providing on-site security.”
Tollis wants to keep the existing sign in place, Rahhal said. Additionally, it objects to the county’s condition that the “external lighting not be animated light,” i.e., continuously changing colors. “We just want straight white lighting,” Rahhal said.
With regard to the on-site security, the county called for Tollis employing two bonded employees of an independent professional guard service at the location. “They have objected to that requirement,” Rahhal said. “They plan to have one guard, rather than two and instead of being with an independent security firm they want to employ one who works for the operator.”

Wheeler Departs San Bernardino To Take Planning Position In Palm Springs

(March 22)  San Bernardino Community Development Director Margo Wheeler is leaving her position on March 28 to accept an appointment as director of Planning Services for Palm Springs.
Wheeler was selected by Palm Springs following a nationwide recruitment effort that attracted more than two dozen applicants.
Wheeler, the former planning director of Las Vegas, has been with the city of San Bernardino since December 2010 and is credited with attracting projects entailing more than 6 million square feet of industrial space and 660,000 square feet of commercial space including the Amazon distribution center and an accompanying $1.4 million in permit fees during her tenure, during which the city streamlined its application and fee scheduling processes.
Despite Wheeler’s time in San Bernardino coinciding with the lead-in to the city’s August 2012 bankruptcy filing, the city added more than $1 billion in building space while she headed the community development division.
Mayor Pat Morris called her departure a “huge loss for the city. She is practically irreplaceable.”
Wheeler joins the ranks of several high ranking municipal officials who have left San Bernardino since the filing of bankruptcy, including the city manager, interim city manager, fire chief, interim fire chief and the finance, human resources, public works, and refuse division directors.

Exline, Top Ranger In Sequoia, Coming In As SB National Forest Deputy Supervisor

(March 22) The U.S. Forest Service has promoted John Exline to serve as the deputy forest supervisor of the San Bernardino National Forest, it was announced on March 19. Currently the district ranger on the Hume Lake District of the Sequoia National Forest/Giant Sequoia National Monument in Dunlap, Exline on March 24 will arrive in San Bernardino County to replace former deputy supervisor Thomas Gillett, who retired in January. “We are pleased to welcome John to the forest,” said forest supervisor Jody Noiron. “John’s extensive 32-year career in the Forest Service and his experience in California make him a great addition to the San Bernardino National Forest. He has significant experience in forestry, fire, and all Forest Service programs and has a proven track record working with communities in California.”
Exline, who is married to Sue Exline, the district ranger for the Ojai Ranger District in the Los Padres National Forest, has been with the Forest Service since 1981. He began as a timber management agent in the Sequoia National Forest, and subsequently worked as a firefighter on the Redding Hotshot crew. He has worked timber management in the Sierra National Forest, as well.
Since 2001, Exline has been a district ranger for the Hume Lake Ranger District in the Sequoia National Forest. He also temporarily assumed the position of interim forest supervisor for the Lassen National Forest as well as the Sierra National Forest.
Exline, 55, has a Bachelor of Arts degree with a major in biology from Lycoming College and a Master’s Degree in forest resource management from Duke University.

Judge Expunges Former Supervisor Derry’s Campaign Finance Reporting Conviction

(March 22) Four months after he was voted out of office in some measure on the strength of a misdemeanor conviction for failing to report a $5,000 campaign contribution in 2007, former county supervisor Neil Derry this week had the record of that conviction expunged upon the motion of his attorney, Rajan Maline.
San Bernardino Superior Court Judge J. David Mazurek granted the request under a provision of the California Penal Code, 1203.3, which provides for a criminal conviction to be “dismissed” upon the completion of probation. Maline sought early termination of his client’s probation, a request that was opposed by Deputy California Attorney General Stephanie Chow.
The state attorney general’s office handled Derry’s prosecution, which was initiated in April 2011 and based upon ground laid by investigators with the San Bernardino County District Attorney’s Office, who had interviewed former county assessor Bill Postmus as a part of a criminal investigation that ultimately led to Postmus pleading guilty to 14 felony counts. Postmus told investigators that he used his political action committee, Inland Empire PAC, to launder a $5,000 campaign contribution to Derry from Highland developer Arnold Stubblefield. Stubblefield had been reluctant to contribute directly to Derry in 2007 because at that point, Derry was not yet in office and was challenging the incumbent, Dennis Hansberger. Derry had reported the money as coming from the political action committee rather than Stubblefield and was initially charged with two felonies – filing a forged or false document and perjury – and with misdemeanor filing of a false campaign report. Four months later, Derry, through Maline, stuck a plea arrangement by which the felonies were dropped and he pleaded no contest to the campaign reporting violation.
That plea figured prominently in the campaign James Ramos waged against Derry last year and Derry lost in November after having served a single term as supervisor.
Despite Chow’s opposition, Mazurek ruled on March 20 “termination of probation pursuant to section 1203.3 PC is  granted and the defendant discharged. The conviction heretofore entered is set aside; a plea of not guilty is ordered entered and the case is dismissed pursuant to section 1203.4/1203.4a PC.”