The Yucca Valley Town Council unanimously consented last week to lifting the complex and expensive requirements the town had previously imposed on any of its residents seeking to cultivate marijuana within or at their domiciles.
The passage of Proposition 64, the Adult Use of Marijuana Act, conferred upon California residents aged 21 and over the right to utilize marijuana for recreational, i.e., intoxicative, purposes, subject to a host of regulations. The measure also conferred on those of the age of majority in the state the ability to cultivate up to one half dozen marijuana plants at any given time, pursuant to “reasonable” regulation by local governmental authority.
In San Bernardino County, the City of Fontana led the reactionary charge against the social liberalization the new age of permissiveness relating to cannabis seemed to represent. City staff there prepared, and the city council passed, an ordinance requiring residents seeking to grow their own inside their home to obtain a $411 permit from the city, pay for unconstitutional background checks, bring any arrearages on overdue city fees to a close, get not just permission from their landlords if they were renters but a notarized certificate of clearance from the property owner, and agree to allow city officials to inspect their homes at any time of the city’s choosing, 24 hours a day.
Mike Harris, a Fontana resident who was represented by the American Civil Liberties Union of California and the Drug Policy Alliance, sued the city. San Bernardino County Superior Court Judge David Cohn in November ruled against the City of Fontana, striking down its ordinance that virtually prohibited Fontana residents from cultivating their own personal stash, opining that “The City of Fontana has gone too far.” Cohn directed the city to redraft its ordinance in keeping with the letter and spirit of the Adult Use of Marijuana Act. Along the way, Cohn indicated that Harris was entitled to legal fees, given that he had to go to considerable expense to prevent the City of Fontana from walking all over him and his fellow pot smokers, violating their U.S. Constitutional rights to be secure in their person and effects, and their rights under the California Constitution and its attendant Proposition 64.
On February 6, Cohn offered up his tally of what Harris’s lawyers are entitled to: $106,916.
In the meantime, the Town of Yucca Valley had instituted its own ordinance.  The town’s regulations prohibited anyone from growing the weed on their premises without first submitting a cultivation application to the town’s development director on a form provided by the director, along with proof of payment of the permit fee. Cultivation applications required that the applicant provide, affirmed under penalty of perjury, the property address where the marijuana was to be cultivated, the name of each person owning, leasing, occupying, or having charge of any legal parcel or premises where marijuana was to be grown, the name of each person participating in the marijuana husbandry, a property owner acknowledgment of cultivation of marijuana at the subject property, affirmed under penalty of perjury, a scaled property site plan and a scaled diagram of the floor plan within the residence or fully enclosed accessory structure to be used for cultivation at the marijuana cultivation site, and an itemized list of measures taken to comply with regard to odor control, security, electrical, and building and safety provisions, as well as any equipment used for the agricultural endeavor. Marijuana cultivation was not to be visible from anywhere outside the residence or accessory structure and any odors, sounds or other emissions indicating marijuana cultivation were not to be detectable from surrounding properties.
Concerned that some town resident in league with an enterprising attorney would soak the town for as much as $100,000 in legal fees by successfully challenging the town with regard to the issue, town officials revisited the matter, having the planning commission review the ordinance.
The planning commission voted 3-to-2, with its members Mathew Thomas and James Henderson dissenting, to recommend that the town council rescind the permit requirements. Thereafter, on May 7, the town council held a hearing and vote on the matter. Without any public comment or show of opposition or controversy, the council approved the changes to the town’s ordinance on personal marijuana cultivation, eliminating the need for residents to secure a town permit prior to growing up to six marijuana plants allowed under state law.
“Parts of our ordinance would not pass muster due to that Fontana case,” Town Manager Shane Stueckle said.
Councilman Rick Denison said it was prudent for the town to reduce the risk of it being subject to litigation it would very likely lose.

It’s all about simmer prints targeting modern. Prints are everywhere let’s start with maxi dresses and the colorful splashy dresses which echo street and earth art. There are also two tone colored tops which create a contemporary abstract. But nothing beats floral patterns and the dresses that echo the gardens which are blooming gorgeously today. There’s a lot of modernism to fashion but flowers never change they stay and move with the changes. You can see skirts, tops, and dresses from different angles but the prints are adding  a different concept to fashion. As summer comes along everything  starts turning in a new direction. Prints are splashing as Memorial weekend is coming up so stay  tune for heated looks.

“Fashion is a mirror reflecting a culture.” Bill Cunningham

By clicking on the blue portal below, you can download a PDF of the May 10 edition of the San Bernardino County Sentinel.

Sentinel 05-10-19

By Mark Gutglueck
Dogged by accusations from the prosecution that it was deliberately seeking to delay the proceedings and provoke a mistrial, the defense in the McStay family murder case this week pursued its strategy of propounding its theory that investigators had mistakenly settled upon their client, Charles Merritt, as the murderer while the actual perpetrator of the heinous 2010 crimes, Dan Kavanaugh, yet roams free.
Prosecutors allege Charles “Chase” Merritt, had engaged in a series of thefts from Earth Inspired Products, the company owned and operated by his business associate, Joseph McStay. Through that company, Joseph was selling high end decorative water fixtures – artificial waterfalls and fountains – which he and Merritt designed based upon specifications provided by customers. Merritt then manufactured the decorative pieces out of steel, glass, rock and other components. The prosecution’s theory, presented during the initial nine weeks of the trial that began the first week of January 7 this year, is that Merritt by early February 2010 was in a state of economic desperation brought on by his gambling addiction and utter lack of financial discipline. At that point, the prosecution maintains, Merritt fraudulently obtained access to the QuickBooks accounting system McStay had set up for the Earth Inspired Products enterprise and pilfered thousands of dollars by issuing himself a series of checks.
When he learned of what Merritt was up to, either shortly before or perhaps even on February 4, 2010, Joseph McStay traveled to Rancho Cucamonga, where Merritt was then living, and confronted him about his larceny, threatening to alert authorities, prosecutors allege. After Joseph McStay returned to San Diego County, the prosecution’s theory continues, Merritt that evening drove to the McStay residence in Fallbrook where he killed Joseph McStay, his wife Summer and their two sons, four-year-old Gianni and three-year-old Joseph, Jr.
Merritt then secreted the bodies for two days, in the meantime again fraudulently accessing Joseph McStay’s QuickBooks account for Earth Inspired Products, the prosecution maintains, and on February 4, 2010, February 5, 2010 and again on February 8, 2010 issued checks from the Earth Inspired Products Account made out to himself for a total of $23,855.
Merritt then transported the corpses up into San Bernardino County’s High Desert, an area with which he was familiar from having grown up in Hesperia and attended Apple Valley High School for three years in the 1970s, according to prosecutors. There, on February 6, 2010, he buried all four along with the hammer he had used to bludgeon his victims in shallow graves he dug in a wash off a rarely-traveled dirt road, according to the prosecution. To confuse the situation, throw authorities off his track and delay a serious investigation into the matter, the prosecution maintains Merritt then drove the McStay family’s 1996 Isuzu Trooper, which yet contained the child seats for Gianni and Joseph, Jr. to San Ysidro, where he left the vehicle in a shopping center parking lot roughly a quarter of a mile from the Mexican border.
From the outset of the trial during opening statements on January 7, the defense has maintained that investigators and prosecutors very early on in the investigative process latched onto Merritt as the likely suspect in the case and then through what they called confirmation bias failed to seek out or consider any evidence to the contrary, while misinterpreting what little evidence they did possess to conclude it supported the underlying theory they had developed, which was that Merritt alone had the motivation, means and opportunity to slaughter the  McStay family and that he singularly was responsible for the murders.
Before the trial started, the prosecution prevailed upon the judge hearing the case, Michael A. Smith, to disallow the utilization of a defense along the lines that it was Kavanaugh who had actually killed the McStay family, as this amounted to what is referred to as “third party culpability.” Under California’s precedent law relating to the introduction of evidence by a defendant to allege third party culpability, including the cases of People v. Mendez and People v. Green, substantial evidence tending to show that a third party is guilty of the offense charged must be presented prior to trial for the court to deem such evidence admissible before a jury.
Thus, only if that evidence marshaled prior to trial directly connects the theorized alternate perpetrator with the actual commission of the offense is the evidence usable by the defense in putting on its case. The courts have held that evidence of mere motive or opportunity to commit the crime in another person, without direct or circumstantial evidence linking the third person to the actual perpetration of the crime, will not suffice to raise a reasonable doubt about a defendant’s guilt, under the current standards of California law.
On that basis, prior to the beginning of the trial Judge Smith denied Merritt’s defense team’s request to construct a third party culpability defense for its client, granting it only what was meant to be a limited and incidental latitude in mentioning Kavanaugh in relation to Joseph McStay and Earth Inspired Products. Prior to the family’s disappearance, Joseph McStay was paying Kavanaugh to promote Earth Inspired Products on the internet. In the aftermath of the family’s disappearance, in conjunction with Merritt, Joseph McStay’s mother, Susan Blake, and Joseph McStay’s brother, Michael McStay, Kavanaugh was involved in an effort to keep Earth Inspired Products up and running in the  hope the company might be preserved as a going concern which Joseph McStay could reassume control of after his anticipated return.
The prosecution, perhaps in an effort to downplay for Judge Smith’s benefit the suggestion that Kavanaugh ever actually represented a viable suspect in the family’s murders, had placed Kavanaugh on its own witness list, a signal that whatever information he possessed would not exonerate Merritt but rather implicate him. When the prosecution rested on March 12, after 28 days of testimony involving 35 witnesses, Kavanaugh had not been among them. While the prosecution was yet putting on its side of the case, the defense team, consisting of James McGee, Raj Maline and Jacob Guerard, did not miss any opportunities presented to them to dwell on Kavanaugh and pose questions relating to Kavanaugh to the prosecution’s witnesses, asking about his relationship with Joseph McStay, the animosity that had grown between them over the last year of Joseph’s life when Kavanaugh learned that Joseph was withholding from him commissions he felt he deserved for the customized water feature projects McStay and Merritt were working on separately, and the way in which Kavanaugh, after the family’s disappearance, had horned in on the Earth Inspired Products operation, diverting most if not all of the money it generated to himself, then seized ownership of the company and sold it, keeping the proceeds for himself. The prosecution team, gritting its teeth at these tactics and lodging constant objections to them in front of the jury, during sessions before Judge Smith outside the presence of the jury lodged increasingly strident protests that the defense team was failing to abide by the limitations that had been imposed on them with regard to the third person culpability issue.
After the trial shifted to the defense putting on its case, references to Kavanaugh intensified, culminating in the 14th week of the trial when Sarah Kane, the custodian of records for PayPal, and Bryan LaRock, a computer system forensic analyst, testified. Both McStay and Kavanaugh had PayPal accounts into which they received, and from which they made, payments. During Kane’s testimony it was demonstrated to the jury that six days after February 4, 2010, the day Joseph McStay and his family disappeared and are presumed by the prosecution to have been murdered, Kavanaugh on February 10, 2010 hacked into Joseph McStay’s PayPal account and changed the password. Over the next two days, Kavanaugh transferred $7,900 from Joseph McStay’s PayPal account to himself.  LaRock’s testimony solidified that the internet protocol address from which the hacking into McStay’s PayPal account was carried out was Kavanaugh’s. Last week, a forensic accountant called by the defense, Dennis Shogren, demonstrated that in the ten months after the McStay family’s disappearance, Kavanaugh commandeered the Earth Inspired Products operation and diverted $206,064 from the company to himself. The prosecution in cross examining Shogren, while conceding that Kavanaugh had indeed made off with somewhere between $126,000 to $127,000 from the Earth Inspired Products venture in 2010, suggested that Shogren could not say with definitude whether another roughly $79,000 to $80,000 that Kavanaugh had pocketed that year was generated by Earth Inspired Products activity.
As the defense has stepped up and sharpened the focus on Kavanaugh, it succeeded in catching the prosecution unawares with regard to the degree to which facts in the case implicate Kavanaugh, as has been evinced on more than one occasion when prosecutors, outside the jury’s presence, have complained to Judge Smith that the defense had withheld from them until only only shortly before they presented evidence exculpatory to Merritt which consisted of indications of the degree to which Kavanaugh was involved in the circumstances surrounding the case.
While Judge Smith has yet to rescind his original ruling that the defense is restricted from openly propounding to the jury a theory of third party culpability, the trial at this point, which is roughly two weeks shy by most estimates of reaching closing arguments, has grown into a de facto forum in which two competing theories of who perpetrated the murders – Merritt or Kavanaugh – have been presented to the jury.
This week, Sergeant Edward Bachman, who testified earlier as a prosecution witness and was called by the defense last week, returned to the witness stand on Tuesday, following the courtroom being darkened on Monday. As the investigation into the McStay family murders progressed in 2014, Bachman was designated the case agent on the matter, and he was responsible for compending the various reports generated by the detectives working the case into the “book” ultimately passed along to the prosecution team.
Questioned by Raj Maline, Bachman said he and then-Detective Daniel Hanke had conducted an interview with Dan Kavanaugh on September 20, 2014 in San Diego, where Kavanaugh was then residing.
Maline asked Bachman if in January 2014, well prior to that interview with Kavanaugh, he had authored an affidavit and application for a search warrant to obtain Kavanaugh’s cell phone records.
“I did,” Bachman said.
Kavanaugh’s whereabouts at the time of the family’s disappearance has grown into a major consideration in the trial. There is contradictory evidence relating to this issue. Purchases on an account or accounts associated with Kavanaugh were made at multiple commercial establishments in Hawaii in the January through mid-February 2010 timeframe and an airline ticket was purchased in his name from Hawaiian Arlines, which seems to suggest Kavanaugh was indeed in the Aloha State at the time of the murders. But no boarding passes for Kavanaugh relating to his flights from California to Hawaii or from Hawaii back to California have ever been produced to prove he was in fact in Hawaii, and there is evidence to suggest that Kavanaugh’s credit card was in the possession of his then-girlfriend, Lauren Knowles, who was in Hawaii. Investigators never verified Kavanaugh’s claim that he was in Hawaii on the relevant dates by speaking with the individual, Larry Haynes, at whose residence Kavanaugh said he was staying when he on the island. More significantly, activity that took place on Kavanaugh’s computer originating at his IP (internet protocol) address in the San Diego area in January and February 2010 indicates he was in California, in an area relatively proximate to the McStay family home in Fallbrook in northern San Diego County, at the time of the murders.
Maline inquired if Bachman knew in January that Kavanaugh had gone to Hawaii.
“Correct,” Bachman responded. “Well, based off the cell phone records, correct.”
“When you authored the search warrant in January 2014, you had a question as to the dates that Mr. Kavanaugh was actually in Hawaii, is that correct?
“Yes sir,” Bachman said.
“Did you do anything after you authored the search warrant to confirm the dates that Mr. Kavanaugh was in Hawaii?” Maline asked.
“I believe Detective [Jose Armando “Mando”] Avila did,” Bachman said. “He followed up with Hawaiian Airlines, I believe it was, to try to confirm the dates Mr. Kavanaugh traveled.”
“At the time I authored the warrant for Mr. Kavanaugh’s phone records I authored numerous warrants for other people’s phone records to try and get kind of a baseline for anybody that we could see if we could provide alibis for or getting investigative leads for,” Bachman said.
“So when Mr. Kavanaugh indicated he was in Hawaii, that would be an alibi, right?” Maline asked. “He was saying, ‘I’m in Hawaii, at least in the beginning of February, so I’m not around.’ So your job, or as part of the homicide detail would be to verify that or not, correct?”
“Yes,” Bachman said.
“You had questions about the dates?” Maline asked.
“We were trying to verify the dates that Kavanaugh was in Hawaii, correct,” Bachman said.
“So, after you authored the search warrant in January of 2014, you said Detective Avila followed up, is that correct?” Maline asked.
“Yes,” Bachman said.
“And was that something you guys discussed as a group?” Maline asked.
“I don’t know that we necessarily discussed it as a group,” Bachman said. “There was follow-up that Detective Avila did to try and verify the dates that he traveled.”
“The information you put in your affidavit would be from Detective Avila, correct?” Maline asked.
“Not necessarily,” Bachman said, but then stated, “Yeah. It would have been something that I obtained from him or something that was discussed at some point.”
“So, again, my question would be what he was able to do or not do with his follow-up would be something that you would have discussed, correct?” Maline asked.
“More than likely,” Bachman said.
“So, other than checking with Detective Avila, what else did you do to confirm Mr. Kavanaugh’s alibis?” Maline asked.
“Are you talking later, after we interviewed him?” Bachman asked.
“Whenever,” Maline said.
“We followed up with Lauren Knowles who was the female he was in Hawaii with,” Bachman said.
“Did you ask her for any boarding passes or plane tickets or anything like that?” Maline asked.
“You’d have to talk to Detective [Daniel] Hanke about that,” Bachman said. “He was the one who interviewed her.”
“Well, you’re the case agent,” said Maline. “Did you ever come across a ticket or a boarding pass or anything like that?”
“Not to my knowledge, no,” Bachman said.
“You yourself never contacted any airline or any airport authority or the TSA [Transportation Safety Agency] or anything like that?” Maline asked.
“I did not,” Bachman said.
“So, Lauren Knowles, his girlfriend,” Maline said, enumerating one base the investigative team had covered. “Anything else that you did to check the alibi?”
“Obtained his phone records,” Bachman said.
“What is it about his phone records that would provide an alibi for him?” Maline asked.
“Based on the fact that he says he’s there, his phone records indicate he’s calling local establishments there in Hawaii, along with Lauren Knowles’ statement and photograph that she provided, we’re pretty confident he was in Hawaii at the time the McStays went missing,” Bachman said.
“So his phone records show calls to Hawaii numbers, is that what you are saying?” Maline asked.
“I believe so, yes,” Bachman said.
“So would that require Mr. Kavanaugh to be in Hawaii, to make calls to Hawaii numbers?” Maline asked.
“You asked me that on Thursday,” Bachman said. “I said no.”
“So other than check his phone records, did you do anything else?” Maline asked.
“Not that I can recall offhand, no,” Bachman said.
“The name of Larry Haynes: does that ring a bell?” Maline asked.
“I believe that’s the name that Kavanaugh said they stayed with on their trip,” Bachman said.
“And did you ever contact him?” Maline asked.
“I personally did not,” Bachman said. “I don’t recall if other detectives did or not.”
“At the time you interviewed Mr. Kavanaugh in September of 2014, you were aware that Joseph had owned Earth Inspired Products, right, that was his company?” Maline asked.
“Yes,” said Bachman.
“And during the interview with Mr. Kavanaugh, he indicated to you…” Maline started.
“Objection; calls for hearsay,” Supervising Deputy District Attorney Britt Imes interjected.
“Sustained,” Judge Smith said.
“Do you know whether or not the subject of EIP [Earth Inspired Products] came up in your interview?” Maline asked.
“Objection; calls for hearsay,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
“I’m not sure,” Bachman began, and then said, “I’m sure we talked to him about the status of the business after the McStays went missing.”
When Maline proffered Bachman a transcript to refresh his recollection, Imes again launched a hearsay and relevance objection, which Judge Smith overruled. Maline provided Bachman with the transcript of the September 20, 2014 interview with Kavanaugh. After Bachman looked at pages toward the end of the transcript, Maline asked, “Does that refresh your memory?”
Bachman said, “Yes, sir.”
“So, the topic of Mr. Kavanaugh selling the company, did that come up in your interview?” Maline asked.
“It did,” Bachman said.
“So, since you had information, since you knew that was Joseph’s company at the time you interviewed Mr. Kavanaugh, did you ever confront Mr. Kavanaugh in this interview and say, ‘How the heck did you sell Joseph’s company without his permission…”
“Objection; relevance; argumentative,” Imes said.
“Sustained, as phrased,” Judge Smith ruled.
“Did you ever ask Mr. Kavanaugh how it was that he was able to sell Joseph’s company without Joseph’s or his family’s permission?” Maline asked.
“Objection; relevance,” Imes said.
“Overruled,” Judge Smith said.
“Based on the information that’s in there, at that portion of it there it didn’t look like we confronted him regarding that,” Bachman said. “There were a lot of questions, obviously, because we’d never talked to Mr. Kavanaugh before. So without speaking to Mr. Kavanaugh –  at that point we still hadn’t spoken to Mr. Merritt – so, Mr. Kavanaugh provided information that Mr. Merritt deleted the accounts, also, that he thought was a concern.”
“Objection; non-responsive; move to strike,” co-defense counsel James McGee said.
“Overruled,” Judge Smith said.
“So, you didn’t confront him, in at least what you’re looking at in the transcript, correct?” Maline asked.
“In the portions of the transcript of the interview, no,” Bachman said.
“And do you ever recall going back after September 20th at any time and asking Mr. Kavanaugh, ‘How was it that you were able to sell EIP without Joseph’s permission or his estate’s permission…”
“Objection; relevance and argumentative,” Imes said.
“Overruled,” Judge Smith said.
“I didn’t re-interview Mr. Kavanaugh after that,” Bachman said.
“Did anyone in the homicide detail interview him on that subject?” Maline inquired.
“Detective Hanke may have done some follow-up talk with him,” Bachman said. “He was the one who kept in communication with Kavanaugh for any additional information that we needed, but I wasn’t part of the interviews on that.”
“Are you aware of any such questioning of Mr. Kavanaugh as the case agent in this case?” Maline asked.
“Objection; lacks foundation,” Imes said.
“Overruled,” Judge Smith said.
“I don’t believe so,” Bachman said. “I think we looked into the folks he talked about selling the business to.”
“You, as the case agent, never requested Mr. Kavanaugh’s PayPal records or know of any other person in the homicide detail that would have requested Dan Kavanaugh’s PayPal records?” Maline asked.
“Objection; it’s compound and the second part calls for hearsay,” Imes said.
“Sustained, as compound,” Judge Smith said.
“Did you ever request Dan Kavanaugh’s PayPal records at any time?” Maline rearticulated.
“The PayPal records I believe were looked into,” Bachman said. “Part of the stuff you’re asking me to go over is 80,000 pages of discovery, so I haven’t looked over every piece of everything. The PayPal records I believe were looked into. I’m not all that familiar with [that], but I’m sure there are detectives that are that could come up to testify to that.”
“The topic of PayPal records and PayPal withdrawals came up during your interview with Mr. Kavanaugh, correct?” Maline asked.
“It did,” said Bachman.
“And actually, Mr. Kavanaugh told you in a manner…” Maline began.
“Objection; calls for hearsay,” Imes interrupted him.
“Sustained,” Judge Smith said.
“Did you ask or did Detective Hanke ask while you were sitting next to him how much money did Dan Kavanaugh take, withdraw, from Joseph’s PayPal account?” Maline asked.
“Objection; relevance, which leads to hearsay,” Imes said.
“Overruled,” Judge Smith said.
“At which point are you asking?” Bachman said, seeking clarification. “When did he withdraw the money?”
“At any time prior to your interview, so from 2010 to September 2014,” Maline said.
“I think he said he had taken that,” Bachman said. “Again, without listening to the audio from the interview… I didn’t prepare the report with regard to his interview.”
“Is it that you don’t remember?” Maline asked.
“I know he said he did take money out of the accounts,” Bachman said. “He never personally offered or signed a check. I recall him saying that, but I don’t remember an actual figure of the amount he withdrew from the account.”
Maline had Bachman review the interview transcript once again.   After reading through several pages of the report, Bachman said, “He said it could be anywhere between…”
Simultaneously, Imes and Deputy District Attorney Melissa Rodriguez echoed in chorus, “Objection… Objection; hearsay… hearsay.”
“Sustained,” ruled Judge Smith. “So, he did give a figure, is that correct?”
“He did,” Bachman said.
“Okay,” Judge Smith said.
“The figure that he gave you, you knew that it was incorrect, didn’t you?” Maline asked.
“Objection; lacks foundation,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
“We knew that it was incorrect?” Bachman answered the question in a way that by its inflection was more of a question than a statement.
“Right,” Maline said.
“How so?” Bachman asked. “I’m not sure that I follow.”
“Objection; calls for hearsay,” Imes said.
“You knew the amount he told you he took from PayPal, from Joseph’s PayPal account, was not correct…” Maline began.
“Objection; assumes facts not in evidence and lacks foundation,” Imes said.
“Overruled,” Judge Smith. “He can answer whether that was their understanding at the time.”
“At the time sir, I don’t know if we knew exactly how much money was withdrawn from the account,” Bachman said. “I know we had financial records back, but as I sit here today I don’t recall how much money we knew was taken out of the account at that time.”
“Well, you had Joseph’s PayPal records, correct?” Maline asked.
“Yes,” Bachman said.
“Did you ever verify the amount that Mr. Kavanaugh told you he took and just match it against Joseph’s PayPal records?” Maline asked.
“I’m sure we did,” Bachman said. “Again, the focus of the PayPal portion of the investigation wasn’t something that I was responsible for. We split different parts of the investigation up. Part of the PayPal records –  There’s a detective that could testify as to what they looked into with that, but just because I was the case agent doesn’t mean I was completely savvy on everything, every little nook and cranny of the case.”
“What about the times that Mr. Kavanaugh accessed Joseph’s PayPal records after the family disappeared?” Maline pressed. “Would that be important as part of the investigation?”
“Yeah,” Bachman said.
“So, do you know when Mr. Kavanaugh first accessed Joseph’s PayPal account to…” Maline started.
“Objection; lacks foundation based on his previous answer that he is not familiar with this line of inquiry,” Imes said.
“Overruled,” Judge Smith said. “He can answer.”
Bachman asked for the question to be repeated.
“Do you know when it was that Mr. Kavanaugh accessed Joseph’s PayPal account?” Maline asked.
“No, I don’t know,” Bachman said.
“…in relationship to the disappearance of the McStay family?” Maline tacked onto the end of his previous question.
“I believe it was within a week after they went missing,” Bachman said.
“Did you ever confront him about the timing of his withdrawals from PayPal?” Maline asked.
“Again, without listening to his interview or reviewing it, I don’t know exactly when we confronted him,” Bachman said. “I know we spoke with him for at least a couple of hours. I know we did address a lot of the issues there, but not all. I didn’t listen to the audio from the recording, from the interview.”
“So, did you review the Pay Pal records? You would know whether or not Mr. Kavanaugh had ever gone into Joseph’s records to withdraw money, you would know…” Maline started to ask.
“Objection; calls for speculation; lacks foundation,” Imes broke in. “He said he didn’t review the records.”
“Sustained,” Judge Smith said.
“I thought you said you reviewed Joseph’s PayPal records,” Maline said.
“I know we had records at the time,” Bachman said. “I don’t know that I personally went through his records.”
“Did you ever approach the subject of Dan being bought out by Joseph?” Maline asked.
“Yeah, we did ask him about that,” Bachman said.
“Isn’t it true that Mr. Kavanaugh indicated…” Maline began.
“Objection, calls for hearsay,” Imes said.
“Sustained,” Judge Smith said.
“Based on your interview, do you know how Mr. Kavanaugh felt about the buyout?” Maline asked.
“Objection; calls for hearsay,” Imes said.
“Objection sustained as calling for speculation and conclusion,” Judge Smith said.
“Did Dan Kavanaugh have animosity toward Joseph McStay regarding the custom business he was doing with Chase?” Maline asked.
“Objection, calls for speculation and hearsay,” Imes said.
“Sustained,” Judge Smith ruled.
Further questioning of Sergeant Bachman was put on hold while excerpts of an interview turned interrogation of Merritt conducted by Bachman and then-Detective and now-Sergeant Daniel Hanke on October 22, 2014 were being extracted from the video of that exchange and were being prepared for display to the jury. Maline intends to resume his questioning of Bachman at that point with regard to what occurred during that interrogation. Technical difficulties in making those extractions from the video ensued, and so the playing of the edited video of the interrogation and the completion of Maline’s examination of Bachman was suspended until next week.
Called to the witness stand thereafter was San Diego County Sheriff’s Department Homicide Detective Troy DuGal. On February 15, 2014, DuGal took up the matter as a multiple missing persons case upon being summoned to the McStay residence in Fallbrook by then San Diego Sheriff’s Department Deputy Michael Tingley, who had accompanied Michael McStay, Joseph McStay’s brother, to the home because of the latter’s expressed concern about the family’s prolonged absence. Though there was no overt indication of foul play at the home, DuGal previously testified that his instincts as an investigator were that the matter was more than a missing persons case, which is how the investigation was characterized officially.
In response to Maline’s questioning, Detective DuGal acknowledged having retrieved 25 voicemails from Joseph McStay’s cell phone account in 2010. He said he documented the 25 voicemails in a report, which contained a synopsis of what each message consisted of. DuGal said that Summer’s phone account had 31 voicemails intact on it.
Joseph McStay’s and Summer McStay’s cell phones disappeared with them and were never recovered. The last phone call placed from Joseph McStay’s phone was at 8:28 pm on February 4, 2010, a phone call to Charles Merritt that went unanswered. Evidence indicates that incoming messages to Joseph McStay’s phone on the days following the family’s disappearance were deleted remotely from some other device, most likely another Sprint phone, as no call was made from Joseph McStay’s phone after the 8:28 pm February 4 call.
According to DuGal, while he was yet investigating the matter as a missing person’s case in 2010, through a warrant he gained access to the McStays’ cell phone accounts. In response to Maline, DuGal said the voicemails that were extant on Joseph’s phone started on or after February 15. To a question by Maline, DuGal acknowledged that the second voicemail referenced a report about the family being missing that appeared in the San Clemente Times. DuGal deduced from that the messages had to have come in from February 15 onward.
“Were you aware that when you interviewed Michael he said that he called and left messages for his brother?” Maline asked, his reference being to calls that had been placed at least as early as February 9 and on the days thereafter.
“I do remember him saying that,” DuGal said.
“They weren’t on his voice mail box, were they?” Maline asked.
“They weren’t annotated in my report, so no,” DuGal said.
“And what about Susan Blake [Joseph McStay’s mother]?” Maline asked. “She also called and left voicemails for her son, correct?”
“I don’t specifically remember Susan’s statement,” DuGal said.
“And what about Dan Kavanaugh?” Maline asked. “Did he call and say that he left messages?”
“Objection, calls for hearsay,” Supervising Deputy District Attorney Sean Daugherty said.
“Overruled,” Judge Smith said.
“I don’t specifically remember what Dan told me,” DuGal said, indicating that he was on a first name basis with the man defense team considers to be the actual murderer in the case. “I obviously talked to Dan Kavanaugh, about that specific incident, but it’s not in this report. I did not have any preparation for this testimony.”
“So you did not really get into the issue of whether or not voicemails were erased then,” Maline said. “That was not something that you remember.”
“I didn’t do any forensics on the answering machine or voice messages other than obtain these,” DuGal said.
DuGal told Maline that he had learned from San Diego County Sheriff’s Deputy Mike Tingley on February 15 the Isuzu Trooper had been impounded from a mall lot in San Ysidro. DuGal said that he spoke with security guards at the San Ysidro Mall and detailed some of his peers to get any surveillance video from the mall they could find relating to the time period when the Isuzu Trooper was known to have been left in the mall parking lot. DuGal also testified that he sought to retrieve video of the international border crossing at San Ysidro in the 24 hour period around the time the Trooper was found.
DuGal said that he also spoke with one of the security guards, James Murray, working at the mall when the Isuzu Trooper was found there on February 8, 2010. He said he also secured whatever security video footage was available from the mall. “I don’t remember exactly what time period I gathered [the available video footage] from there,” DuGal said when asked how far in advance and how far after the  9:18 pm February 8, 2010 first sighting of the Trooper noted in Murray’s documentation relating to the towing of the vehicle. “I don’t know if it was tighter than 24 hours.”
DuGal said he had traveled to the mall, where he met with Murray and another security guard working there at the time, David Jackson. One of the two told him approximately where the Isuzu was parked and DuGal said based on what he had been told his report contained a rough sketch of the two spots where the Trooper could have been parked in front of a store in the mall called the Pink Zone.
“You collected surveillance film starting at the time that Mr. Murray would have told you the Trooper would have been there, correct?” Maline asked.
“I did it by logic to when – the time period I wanted surveillance video to what he said,” DuGal said. “I would have gone before and after the tow.”
“So, if you collected the surveillance video from five o’clock to 11 pm, 5 pm to 11 pm at the shopping center, does that sound about right?” Maline asked.
DuGal said he did not recall the precise times the video footage he requested covered. After he was told that his previous testimony had indicated the 5 pm to 11 pm timeframe, he conceded that was roughly correct.
“You didn’t just pick that timeframe out of the air,” Maline said. “You based that on what you were told, correct?”
“Sure,” DuGal said. “That’s the way an investigation works.”
Establishing that the McStay family’s Isuzu Trooper was not abandoned until late in the day on February 8 is of consequence to the defense, as Merritt’s cell phone records indicate that he was in the Rancho Cucamonga area on February 8 beginning early in the afternoon until late into the evening, which casts doubt on the prosecution’s assertion that it was Merritt who drove the Isuzu Trooper to the border and abandoned it there.
Maline questioned DuGal about an interview with Merritt that he and another homicide investigator with the San Diego Sheriff’s Department, Suzanne Fiske, carried out in Rancho Cucamonga on February 17, 2010 while they were in the early stages of carrying out the missing persons investigation relating to the McStay family. In that interview, which was played for the jury during the prosecution’s presentation of its case earlier in the trial, a cooperative Merritt fills the two detectives in on a host of details with regard to the McStay family and his business and personal relationship with Joseph McStay in an apparent effort to guide the investigators toward information that might be helpful in finding the missing family. At one point during the interview Fiske noted, as did prosecutors later in presenting their case against Merritt, that during the interview, he occasionally referred to Joseph and the other members of the McStay family in the past tense. That, the prosecution contends, shows that Merritt knew the missing family was dead, something only the murderer would know with any certainty at that point, and is thus an indication of Merritt’s guilt.
Maline made references to the forms of the questions that had been posed to Merritt during the February 17, 2010 interview to demonstrate that the detectives – DuGal and Fiske – were themselves using the past tense, and thereby conditioning responses that were likewise in the past tense.
Using the transcript of the interview, Maline gave a demonstration of Fiske using the past tense.
“Is there any reason why Detective Fiske would have used the past tense when referring to Joseph’s credit cards?” Maline asked.
“Objection; calls for speculation,” Imes said.
“Sustained,” said Judge Smith.
Maline, who had approached the witness stand with a notebook containing the transcript of the interview and had placed it on the edge of the witness box so that DuGal had a close perspective on it, then leafed through the transcript of the interview to find questions posed by DuGal during the interview of Merritt. Locating one on page 33 of the transcript, he first attempted to verify with DuGal that it was his question. Pointing to it, he asked, “Is that you there? Is that your question?”
“Yes,” said DuGal.
“So you asked Mr. Merritt, ‘Did he usually meet with you at Chick-fil-A or did he usually come to your house?’’ Maline said.
“Yes,” DuGal confirmed.
“Why didn’t you ask him, ‘Does he usually meet you there’ as opposed to…” Maline began.
“Objection; argumentative and meet is in the present tense,” Imes said.
“Sustained,” Judge Smith said.
Maline leafed further. “On page 36, is that you as well?” he asked.
“Yes,” DuGal acknowledged.
“You asked Mr. Merritt, ‘Does Joseph often [visit Jonah] and what did Summer say about Jonah?’, correct?” Maline said.
Jonah was Joseph McStay’s child by a previous marriage.
“Objection; relevance and argumentative,” Imes said.
“Sustained,” Judge Smith said.
“Would it be fair to say those questions are in the past tense?” Maline asked.
“Objection; argumentative; relevance,” Imes said.
“Sustained,” Judge Smith ruled.
Again leafing through the transcript of the interview, Maline came to another page and asked, “You asked about the relationship between Summer and her mother also using the past tense, is that correct?”
“Objection; relevance; cumulative; argumentative,” Imes said.
“Sustained,” Judge Smith said.
“Would you agree that in reviewing this transcript and the interview, since you did review it, that many of the questions that are asked by you and Detective Fiske were in the past tense?” Maline persisted.
“Objection; assumes facts not in evidence as to many,” Imes said, anger rising in his voice.
“Overruled,” Judge Smith said. “He can answer.”
“Could you ask again?” DuGal asked.
“Would you agree, and you can take a look at the portions I highlighted,” Maline said in reference to the transcript, “that many of the questions you asked of Mr. Merritt were in the past tense, referring to Joseph in the past tense or Summer in the past tense?”
“I would say generally I’m asking in the past tense because I don’t know any of these people, so yeah, I’m referring to the past,” DuGal said, an acknowledgment that virtually all of the questions to Merritt about Joseph McStay or the McStay family in general were posed in the past tense.
“So, you would understand – and the prosecution brought this up – that ‘Joseph was my best friend,’ when someone gives an answer like that, if you’re asked in the past tense, and this is Detective Fiske, and I don’t know if you were still…” Maline started to formulate a question.
“Objection; argumentative,” Imes interrupted.
“Sustained,” Judge Smith said.
Maline found another question in the transcript that had been posed by DuGal’s partner, Detective Fiske, in which she asked Merritt, ‘Were you also friends’ or if they were merely business partners.
“Were you present for that question?” Maline asked.
“I don’t know,” DuGal said. “It’s Fiske’s question. It’s not my question.”
“Would you agree that the question she’s asking of whether or not Mr. Merritt is friends with Joseph was in the past tense?” Maline asked.
“Objection,” Imes said. “Relevance, argumentative; calls for speculation.”
“Overruled,” Judge Smith said.
“I would once again say that as an investigator, she too didn’t know any of these players, so when we questioned, it’s going to be past tense because we’re talking about relationships, past tense, what have you experienced with your family member,” DuGal said. “In the questions of Mr. Merritt, his answers are much more defined to any use of the past tense.”
“But is there any reason you couldn’t have asked, ‘Are you friends with Joseph?’ as opposed to ‘Were you friends with Joseph?’?” Maline asked.
“Objection; argumentative,” said Imes.
“Sustained,” Judge Smith said. “It would also call for speculation and conclusion.”
“You also mentioned the border crossing video,” Maline said. “Just to clarify the date of that: That was February 8 [2010], correct?”
“That’s correct,” DuGal said.
The reference was to video footage of what appeared to be a family of four, consisting of a man and a woman, each holding the hand of a young child, as they cross from the American side to the Mexican side of the international border. From their stature, the children look to be about the ages of four-year-old Gianni and three-year-old Joseph, Jr. The woman was wearing a light colored jacket with dark trim and a pair of Ug Boots similar to items of apparel in Summer McStay’s wardrobe.
“And what time was the actual time that the family that you believed at the time was the McStay family had…” Maline began.
“It’s not my belief,” DuGal said, somewhat severely in interrupting the question and then correcting Maline. “It’s an investigation where the family – some of the family members – had some belief it was possibly their family. I don’t know the McStays, so it’s not my belief.”
“But you did rely on that border video,” Maline said. “You indicated in many portions of your reports that – you didn’t say definitively that it was them – but it was a reasonable likelihood it was them. That was the term you used, is that not correct?”
“That’s correct, based on the family’s statements to me after viewing the video,” DuGal said.
“So, that was on the 8th, and what time approximately did that family cross…”  Maline began.
“Objection; lacks foundation,” Imes inserted himself between Maline and the witness.
“Overruled,” Judge Smith said. “He can answer if he knows.”
“19:00 or 7 pm,” DuGal said.
Maline asked how far it was from the Pink Zone store to the border.
“I know that because it’s in my report,” DuGal said. “I had someone walk it. Just from memory, it’s ten minutes, a ten minute walk.”
Maline also took up with DuGal an email from Joseph McStay to Merritt that was sent on February 1, 2010, three days before the family disappeared. The email’s contents pertain to several ongoing Earth Inspired Products custom waterfall jobs, and how much income is to be derived from them, as well as two previous jobs that Earth Inspired Products had completed, including one with a cost of $34,000, but for which the customers were refusing delivery and were seeking refunds on their deposits or had canceled payment altogether. Because deposit payments on those projects had been turned over to Merritt so he could purchase the materials needed to complete the waterfalls, McStay had listed those in the email as a $19,000 overpayment and an $8,800 overpayment to Merritt, together with an accumulated overpayment of $15,045 on other jobs such that there was at that point a total overpayment sum of $42,845 that had gone to Merritt. Characterizing this $42,845 as an arrearage, the prosecution has sought to suggest that this was a contributory factor to Merritt’s motive for killing Joseph McStay. The defense, however, has dismissed that accusation as entirely trumped up, asserting that the nature of the way in which the Earth Inspired Products operation conducted business over the years showed a constant flow of money back and forth between McStay and Merritt as orders for water features came in, were worked on, delivered and paid for. To emphasize this, Maline elicited from DuGal testimony that 16 days after McStay had sent the email to Merritt, Merritt had provided it to DuGal and Fiske along with a ledger showing the jobs Earth Inspired Products was engaged in and payments for that work that had been coming in. By demonstrating that Merritt had shown it to the two homicide detectives on his own volition and without reservation, Maline’s intent was to dispel the prosecution’s suggestion that Merritt had killed McStay to get out from paying a debt he owed him.
DuGal confirmed that when Merritt met with him and Detective Fiske on February 17, 2010, Merritt had provided him with the February 1 email from Joseph McStay as well as a ledger relating to the financials pertaining to Earth Inspired Products jobs that were ongoing at the time. Detective DuGal had no in-depth specific memory of the documents, calling them “vaguely familiar, only because I know Mr. Merritt did provide us with some financial documents, and this is basically a ledger of clients and money paid out, but, do I remember this specifically? No,” DuGal said. DuGal said he believed Merritt had provided the documents together to him and Fiske on February 17, 2010.
Gary Robertson, a former police officer with the San Bernardino Police Department for 35 years including 14 years as a homicide detective and four years as the department’s homicide division sergeant who has been working as a private investigator since 2016, testified Wednesday about his efforts on behalf of Merritt’s legal team to locate Kavanaugh.
Before Robertson took the stand, however, an evidentiary hearing was held in which Judge Smith went over the prosecution’s efforts to prevent him from testifying. Smith denied the prosecution’s motion to keep Robertson off the witness stand.
“I think they’re entitled to show that there are logical witnesses suggested by the evidence that they might have called, and I think they are entitled to put on evidence to show, ‘We tried to locate them to get them here. We were unsuccessful,’” Judge Smith said.
Judge Smith did grant the prosecution’s request to limit the scope of the questions to be posed to Robertson and what ground he could cover in his testimony. The defense was prevented by Judge Smith’s ruling from exploring why Kavanaugh could not be located. Smith also ruled that the defense, in its closing arguments, would be precluded from referencing the prosecution’s failure to call a logical witness, and the defense would not be allowed to allege that Kavanaugh is hiding, running or displaying consciousness of guilt by not being available to testify. Nor was Robertson to be permitted to testify, Judge Smith ruled, that as a private investigator he lacked the full range of search tools that are available to public law enforcement agencies that could be brought to bear to find Kavanaugh. In particular, the prosecution succeeded in getting Smith to rule that the defense would not be able to elicit from Robertson that Kavanaugh had originally been on the prosecution’s witness list and that the prosecution had not called him.
On the stand, Robertson said he had been working on the Merritt defense since April 2016 and that he was given the assignment of serving a subpoena duces tecum in August 2017 for Kavanaugh to produce documentary evidence in the form of paperwork. He said he went to two locations looking for Kavanaugh at that time, including one in Escondido, and was not successful in locating him.
Robertson testified that he was given another assignment to locate Kavanaugh in “middle to late February of this year, 2019” and serve him with “a subpoena to appear in court.”
In making that attempt, Robertson said “I went to seven different locations,” which he said included several specific places in San Diego as well as Irvine, Lemon Grove and San Clemente. He said he initiated his search on February 23 and that he utilized information provided to him, social media leads, Kavanaugh’s known associates, and informants he had himself developed in the course of that effort. Robertson said he also checked jail custody databases to see if Kavanaugh had been arrested,  which availed him no information. Robertson said he had staked out one of what he thought would be Kavanaugh’s likely haunts but Kavanaugh did not show up while he was there.  At one point, as Robertson was on the verge of stating that his resources as a private investigator were less inclusive than those available to law enforcement, an objection by Supervising Deputy District Attorney Sean Daugherty foreclosed his answer.
Robertson said he had requested from the district attorney’s office its most current address for Kavanaugh on March 3, 2019 and was given an immediate response of 131 West Fir Street in San Diego. Maline asked Robertson if he went to that location to see if he could locate Kavanaugh.
“I did not, and the reason I didn’t was because I had already been there previously in February, and it was a bad address,” Robertson said.
“Did you get any other addresses from the district attorney’s office?” Maline asked.
“No, I did not,” Robertson said.
Robertson was unable to get any up-to-date employment location for Kavanaugh, he said.
“As of today’s date have you been able to locate or get any leads on where Mr. Kavanaugh is?” Maline asked.
“No,” Robertson said.
During her cross examination of Robertson, Deputy District Attorney Melissa Rodriguez established that Robertson was also involved in investigating other aspects of the Merritt case beyond those relating to locating Kavanaugh.
Using Robertson’s report, which referenced his effort to locate Kavanaugh to appear as a witness in the trial as beginning in February 2019, she disputed Robertson’s statement that he had begun looking for Kavanaugh in August of 2017.
“So, your report says you didn’t actively start looking for Kavanaugh until mid-February 2019,” Rodriguez said. “Is that an error?”
“Well, I started looking for Mr. Kavanaugh back in August 2017,” Robertson said. “In regards to this case, for a subpoena it was February 2019.”
“Okay, so you started looking for him in 2017, but you didn’t actually start looking for him in regards to this case until February of 2019?” Rodriguez asked.
“For the subpoena service, correct,” Robertson responded.
“And so, were you aware when this trial actually started?” Rodriguez asked.
“Yes,” Robertson said.
“When did this trial start?” Rodriguez asked.
“Early January 2019,” Robertson said.
“And so prior to that, you had not actually gone down to San Diego to look for him, right?” Rodriguez asked.
“That’s correct,” Robertson said.
“And so you started looking in mid-February of 2019, but I see you didn’t actually go anywhere until February 23rd of 2019, is that correct?” Rodriguez asked.
“That is correct,” Robertson answered.
“So that would be more clearly the end of February 2019, correct?” Rodriguez pressed.
“Yes,” Robertson said.
Rodriguez established that Robertson was actively looking for Kavanaugh, that is physically going to locations, on four days in February and March, the last being on March 21.
“At that point the defense had already started their case, right?” Rodriguez asked.
“I don’t know when they started their defense,” Robertson said.
“And then you looked again on the Twelfth of April, right?” Rodriguez asked.
“Yes,” Robertson said.
“And then again on the fourteenth, is that correct?” Rodriguez said.
“Yes,” Robertson said.
“And you didn’t look anywhere in Hawaii, did you?” Rodriguez asked.
“Did I look in Hawaii?” Robertson asked.
“Yes,” Rodriguez said.
“No,” Robertson said.
“But you looked at information and had been given information related to this case that Mr. Kavanaugh had previously been in Hawaii, right?” Rodriguez said.
“All I knew was he was allegedly there during the disappearance of the family,” Robertson said.
Rodriguez asked if Kavanaugh’s social media postings placed him in San Francisco.
Robertson said he had not checked that out.
With Rodriguez having opened the door with regard to Robertson not initiating his latest search for Kavanaugh until February of this year, Maline in his redirect examination of Robertson asked him, “Counsel asked you about the start date of the trial, right?”
“Yes,” Robertson said.
“And you said you took direction from the defense team, is that correct?” Maline asked.
Robertson acknowledged that was the case.
“Did anyone from the defense team ask you to go subpoena Mr. Kavanaugh prior to January?” Maline asked. “Not subpoena duces tecum, which is for documents, but to actually subpoena the person to show up?”
“No,” Robertson said.
“And you’re getting information from the defense team,” Maline said. “There was a witness list provided by…”
“Objection; relevance; argumentative; violates the court’s evidentiary ruling,” Imes interrupted.
“Overruled, in light of the cross examination,” Judge Smith said.
“You got information regarding the witness list that the prosecution provided, which had Mr. Kavanaugh’s name on it, is that correct?” Maline asked.
“Yes,” Robertson said.
“So, would it be fair to say in discussing that with the defense team, we relied upon the prosecution…”
“Objection; speculation,” Imes interjected.
“The objection is sustained as calling for hearsay,” Judge Smith ruled.
“You were told by one member of the defense team…” Maline began.
“Same objection,” Daugherty said.
“Sustained,” Judge Smith said.
“Did myself or Mr. McGee tell you…” Maline began.
“Objection; hearsay,” Imes said.
“What he was told?” Judge Smith repeated the mode of the question out loud. “Sustained as hearsay.”
“Did myself or Mr. McGee tell you…” Maline tried again.
Imes interrupted once more, “Objection; hearsay,” he said.
“Well,” said Judge Smith.
“It’s a question,” Maline said.
“Let me hear the question,” Judge Smith said.
“Did Mr. McGee or myself talk to you about Mr. Kavanaugh being on…” Maline said.
“Objection!” Daugherty fairly boomed, and then said, softly, hearsay; relevance.”
“You already brought out the fact that Mr. Kavanaugh was on the district attorney’s witness list,” Judge Smith said, cutting to the heart of the matter. “So, I think that answers the question as to when the parties started to look for him.”
After an absence of nearly two weeks, Merritt’s defense co-counsel, Jim McGee was in the courtroom on Tuesday. Since the last week of April he has been suffering with an undisclosed ailment. He attempted to participate in Tuesday morning’s proceedings, and did at one point lodge an objection to an answer provided by Sergeant Bachman as unresponsive, but was later overcome with fatigue and left the courthouse. In his absence, Maline has handled all of the questioning of witnesses that McGee was earlier scheduled to do. A key witness yet to be called by the prosecution is Dr. Leonid Rudin, an expert witness retained by the district attorney’s office who was not called to the witness stand by the prosecution as was earlier anticipated. McGee has the background in the area in which Dr. Rudin is expert, and both he and Maline want McGee to carry out the examination of Rudin. This has caused a delay, but Judge Smith, over prosecution objections, agreed to schedule Rudin’s appearance for May 21 to give McGee adequate time to recover and elicit what the defense says will be crucial testimony. If McGee is not able to do so at that time, Rudin’s examination will be done by Maline.
The prosecution team expressed irritation at the delays, and suggested that McGee is malingering as a ploy to benefit Merritt by provoking a mistrial. The prosecution also suggested that the defense overall was engaged in sleazy tactics, which included using the third party culpability defense relating to Kavanaugh, which it insisted should never have been an issue in the trial, given Judge Smith’s pretrial rulings.
Rodriguez accused the defense team of ignoring the guilt of its client and instead seeking to “point the finger at somebody else, which is what they’ve done the entire trial.”
She said that once the third party culpability “bell has rung” it is impossible to undo the damage that represents to the prosecution’s case. “The defense in this case has repeatedly violated this court’s order with respect to third party culpability,” she said.
Maline retorted by accusing the prosecution of “violating court orders on a daily basis.”
Daugherty weighed in, saying, “This is just delaying everything. At this point, all we’ve done in the last two weeks is reiterate everything that the jury already knows.”
When Judge Smith indicated he agreed, Daugherty said “So, if you agree, can you please stop it? This is cumulative.”
Maline lamented that the prosecution had continuously assailed the defense and used pejorative terms about it for pursuing a thorough and methodical defense of its client.  He said that was “impeding” the defense, which was contributing to the delays.
Judge Smith said, “I’ve allowed both sides to say things and do things that were improper and make allegations that were either partially true or not true at all. We can certainly sidetrack the whole trial and have a trial just on the conduct of counsel. That, of course, would be to the benefit of the defense, because we’d never finish the trial. So, I’m not going to do that. I’m just going to focus on the trial and let others deal with the misconduct of counsel at a later point.”
Imes accused the defense of “deliberate stall tactics where you don’t have experts completing work until the night before they testify, even though they’ve had the case for three, four or five years.”
Judge Smith then decried the constant bickering between the attorneys. “Every issue that comes up you say, ‘They did this and they did this and they did this, so we should get to do this.’”
That did not prevent Imes from personalizing things further.
“I happened to be at a social event with Mr. McGee on Saturday, where he was perfectly fine, drinking and dancing,” Imes said. “I’m starting to question that this unpreparedness with video, getting a witness here, repeating fact after fact after fact that is cumulative to the People’s entire case in chief and the defense’s cross examination of it is starting to appear like stall tactics, intentionally done, not that it’s a preparedness issue. I think the court, at Mr. Daugherty’s urging needs to control the proceedings a little bit because we’re going to start losing jurors, and we will end up in a mistrial because of that.”
Maline shot back, “Every time, the three of them [Imes, Daugherty and Rodriguez] get up, and like cackling schoolgirls, go through this thing that we’re engaged in some type of misconduct, and the court allows it to occur on a regular basis. So, should we sit down and just not say anything?”
At that point, Judge Smith, taking on the aspect of a junior high school principal before a room full of incalcitrant 7th and 8th graders, said, “It seems to me that both sides are more interested in attacking opposing counsel than they are in representing their respective clients. I think both sides, if given the choice of furthering evidence to support your side or attack opposing counsel, your first choice has been to attack opposing counsel and then try to work in the evidence. I guess you think that’s effective with a jury. I question that tactic, but if that’s the tactic, then so be it. I’m trying my best not to get drawn into that because again, I’m trying to keep the focus on the trial and not constant hearings to address the misconduct of counsel during the course of the trial.”

It appears that John Valdivia has solidified his hold on the political machinery at San Bernardino City Hall with the election of Juan Figueroa to the position on the city council Valdivia was obliged to vacate in December to assume the mayoral post he captured in the November 2018 election.
Voters were provided with three choices in the vote-by-mail election the city council agreed to use to find Valdivia’s replacement: Anthony Aguirre, who initially signed up for the contest but then withdrew after it was too late to remove his name from the ballot; Juan Figueroa; and Treasure Ortiz.
That mail polling ended on Tuesday, May 7 when the city’s post offices closed at 5 pm. As of today, at 1:14 pm, Figueroa had a commanding lead, as 1,432 votes had been tallied and he had captured 948 votes or 68.65 percent to Ortiz’s 371 votes or 28.86 percent and Aguirre’s 62 votes or 4.49 percent. While some straggling mail-in ballots postmarked on Tuesday may conceivably arrive today, there is virtually no chance there will be enough of them to change the outcome when what is anticipated to be the final outcome of the race is revealed with the updating of the count on Monday, May 13 at 4 pm.
Figueroa’s ascendancy is virtually indistinguishable from that of Valdivia, to whom Figueroa is wholly indebted, as it was Valdivia’s political machine which conducted the campaign on his behalf. His donor list for this spring’s campaign reads like a virtual carbon copy of Valdivia’s 2018 mayoral campaign donor list, including $2,500 from Social Entertainment Group LLC of Encino; $3,000 from A&A Holdings Store of Riverside; $2,500 from Werm Investments LLC of Sherman Oaks; $1,954.40 from the San Bernardino Police Officers Association Political Action Committee; $2,000 from Orange Show Holdings of Ontario; and $1,000 from Clifford Cummings. Figueroa was provided $7,300 from Valdivia’s campaign fund. From all manner of donors, Figueroa received $80,231, which totally overwhelmed Ortiz, who collected $23,613.38 from all of her donors.
Valdivia is a paradoxical entity.
In 2011, he was elected to the Third Ward council position, defeating the incumbent, Tobin Brinker. Valdivia won with heavy support of the city’s firefighters union, which opposed Brinker, as he was a member of the council coalition that included then-Mayor Patrick Morris and other council members committed to heading off the city’s financial slide by holding the line against escalating personnel costs brought on by constant salary raises and benefit increases to city employees. Valdivia took office in March 2012. Five months later, the city was obliged to file for Chapter 9 bankruptcy protection, as its declining financial circumstance was no longer tenable.
Touting himself as a financial and social conservative, Valdivia nevertheless opposed all moves to deny city employees raises, and was particularly adamant that police officers and firefighters be provided with yearly salary and pension increases, despite the consideration that their salaries accounted for 71 percent of the city’s budget.
In 2015, the Carey Davis-led city council was struggling to map the city’s way out of bankruptcy, calculating that it would need to drastically reduce the city’s costs to do so. Since police and fire department salaries represented better than 70 percent of the city’s costs, the game plan being hatched called for getting the city’s public safety personnel to voluntarily reduce their salaries and benefits. The policemen and firemen were having nothing to do with that, however, and the city council and city management did not have the wherewithal to accomplish that on its own. A provision put into the San Bernardino Charter by means of a citywide vote in 1939 – known as Section 186 – required that the city’s firefighters and police officers be paid on a scale equal to the average pay of police officers and firefighters in ten similarly-sized California cities. Whenever the city council or city manager sought concessions from either of the unions representing those two groups, the employee representatives would invoke Section 186. In 2016, the city council found its way around a good deal of that dilemma, moving to shutter the city’s 137-year-old municipal fire department and have the county’s fire division take over the provision of fire safety service within San Bernardino’s city limits. Valdivia and Councilman Henry Nickel emerged as the lone opponents to that move.
The following year, the city council again moved to alter municipal reality in the city, putting a measure on the ballot to dispense with the city’s 111-year-old charter. The charter in place since 1905 called for an elected city clerk, an elected city attorney, an elected mayor and an elected council. While the 1905 charter did not give the mayor a vote on the council, it did provide him with the power to veto any vote that passed by a 4-to-3 or 3-to-2 margin, translating in actuality to the mayor possessing two votes. The mayor wielded the gavel at council meetings, conferring upon him the power to control the ebb and flow of debate, and the power to recognize both members of the council and of the public during public discussions leading up to council action. As significantly, the mayor under the previous charter had the power to hire and fire city personnel, which put him on a par with the city manager in terms of administrative reach.
The proposed 2016 charter reform measure, in addition to transforming the positions of city attorney and city clerk from elected ones to appointed positions, dispensed with the mayor’s administrative role, such that he was no longer empowered to hire or fire city personnel and no longer had the status of being with the city manager the co-regent of the city.
Davis was an advocate of the reform, though it would have the effect of curtailing his personal power. Valdivia, who had at that point emerged as Davis’ primary political rival, opposed weakening Davis or any subsequent mayor, primarily because he coveted the mayor’s post for himself.
The city’s voters in November 2016 passed the charter reform as proposed.
Valdivia enunciated an anti-medical marijuana availability line the first five years of his tenure in office, maintaining that the drug was a bane on society and destructive to San Bernardino in particular. Upon the statewide move toward the liberalization of legal and social standards with regard to cannabis, including allowing it to be cultivated, sold and used for its intoxicative effect, he virtually overnight became the city’s leading champion of the marijuanafication cause and now counts deep-pocketed cannabis entrepreneurs among his major political donors to the point that the FBI has electronic taps on all of his forms of communication.
Similarly, Valdivia has decried the social ills that have beset San Bernardino, including its ranking as the 14th most violence prone city of its size in the country, in which one is three times as likely to be assaulted and four-and-a-half times as likely to be murdered, on average, than anywhere else. In 2018, after the proponent of a fast mart/gas station development within Valdivia’s Third Ward provided him with $2,000 in his run for mayor, he supported allowing that facility, which was to be located next to the 215 Freeway, a permit to sell hard liquor. The city’s community development director, Mark Persico, while supporting the development of the gas station and accompanying convenience market at that location, had recommended against the hard liquor sales component of the operation. Shortly after that gas station/liquor store was given approval by Valdivia and a prevailing number of his council colleagues, and after Valdivia qualified for the November run-off for mayor against incumbent Mayor Carey Davis in the June Primary election which involved seven candidates, Valdivia went along with City Manager Andrea Travis-Miller’s move to fire Persico.
Valdivia, a Republican who fought assiduously and failed to obtain the county GOP’s endorsement over fellow Republican Carey Davis in last year’s mayoral election by asserting he had impeccable conservative credentials and was more in keeping with his party’s ideals than Davis, during the November election carried out a campaign that utilized his Hispanic extraction and name to convey the impression that he is a Democrat, a shrewd calculation given that San Bernardino is a Democratic town, with over 44,000 or 48 percent of its more than 93,000 voters registered as Democrats while the city’s Republican voters number just over 21,000 or 22.5 percent, even fewer than the more than 22,500 voters or 24 percent who have no party affiliation.
Upon his defeat of Davis in the November 2018 election, Valdivia at once began casting about for a way to reinfuse the mayoralty with some or all of the power that had been taken away by the 2016 charter change. This included beefing up the support staff the council then had – consisting of four city employees who were as answerable to the city manager as they were to the elected leadership – into 13 positions, including the mayor’s chief of staff who would oversee eight staffers serving at the mayor’s pleasure.
Also elected to the council in November 2018 were Second Ward Councilwoman Sandra Ibarra and First Ward Councilman Ted Sanchez. Both were ready Valdivia allies. When Valdivia assumed office, it thus appeared Valdivia had the backing of a sure majority of the council – consisting of Nickel, Ibarra and Sanchez and Councilwoman Bessine Richard.
As it would turn out, however, Valdivia’s effort to consolidate power too soon ran into some temporarily rough sledding. The day that Valdvia, Ibarra and Sanchez were sworn into their mayoral and council positions, Ibarra at once called for an evaluation of City Manager Andrea Travis-Miller. During the 2018 election, Travis-Miller had lent support quietly, though apparently not quietly enough, to Davis. That had proven unwise, and as Valdivia assumed the mayor’s gavel from Davis, Travis-Miller was on Valdivia’s radar screen. Nevertheless, that early after the election neither Richard nor Nickel were ready to pull the trigger on Travis-Miller.
Valdivia put sacking Travis-Miller on temporary hold. Concentrating on more than tripling the depth of the mayoral/council staff, Valdivia next encountered resistance from Nickel, as well as councilmembers Jim Mulvihill and Fred Shorett when they saw what they thought amounted to Valdivia attempting to empower himself beyond the parameters of the newly-adopted charter. Nickel’s reaction was significant, because over the previous four years he had evolved to become Valdivia’s strongest and most reliable ally on the council. Nickel balked at going along with the mayoral staff increases. Valdivia’s maneuverings to overcome Nickel’s defection from the Valdivia reservation created more tension still. This included an episode in which Nickel, Shorett and Mulvihill simply walked off the dais in the middle of a meeting to prevent the council, which was functioning at six-sevenths strength because of the vacancy in the Third District, from maintaining the requisite four participating member quorum for the council to make a vote. That matter, relating to hiring the staff Valdivia wanted, appeared to be headed toward a 3-to-3 deadlock with Nickel, Shorett and Mulvihill opposed and Richard, Sanchez and Ibarra in favor. Valdivia would then have been eligible to vote, as in addition to veto power the mayor also carries tie-breaking authority. Without that four-council-member quorum, no vote could take place.
On April 3, nearly five months after the November election, Councilwoman Richard came around and showed herself willing to support Valdivia in getting rid of Travis-Miller. During a closed session for the council’s regular meeting on that day, she joined with Ibarra and Sanchez in voting to place the city manager on paid administrative leave, resulting in a 3-to-3 deadlock, with Shorett, Mulvihill and Nickel on the other side of the question. Valdivia, using his tie-breaking authority, tipped the scales to suspend Travis-Miller.
At its May 1 meeting, the council went into a closed session to again deliberate Travis-Miller’s fate. Presumably, the votes of Richard, Ibarra and Sanchez were available to force the matter to a crisis, whereupon Valdivia stood ready to again break the tie and hand Travis-Miller a pink slip. Doing so on a bare majority, however, was considered gauche and perhaps even politically risky. A decision on the matter was put off, meaning the council would not return to it until after the Third Ward election had concluded.
With Figueroa now on track to take his place on the council dais as well as representing the Third Ward in the private discussions the entire council is entrusted to engage in behind closed doors in hashing out some of the most pressing issues facing the city, Travis-Miller will soon be a permanent part of San Bernardino history.
Nickel sized up the implication of the special Third Ward election that concluded May 7.
“There is certainly going to be a majority on the council that is very much aligned with the mayor,” Nickel said. “The voters have spoken. That’s the way the system works. John did a good job of putting his team and his agenda together. In actuality, there is not too much, if anything, of what that agenda is that I’m not in favor of. I too am pro-business, pro-public safety, pro-growth. John is putting an economic development ad hoc committee together as we speak that has the potential for tremendous benefit to the San Bernardino community. We need growth and revenue. A whole new approach behooves us. He and I are perhaps different in our approach as to how to achieve some of those things and what we might implement to achieve certain goals, but overall there is not much we differ on in terms of the substance of what we should be trying to achieve. We need to renovate the mall site. We need to give our police department the resources its officers need to enforce the law. We should leverage the opportunities we have at our airport. I am in tune with just about every aspect of what John is doing or trying to do.  If there are differences of opinion between us, it’s on how we move forward.”
Nickel continued, “We are making a series of what amount to major staff changes that are a natural and inevitable shift following an election. I am hoping to see some stability in terms of our staff when this settles down. When you are elected you have to work with other people who are elected. It is necessary to put personality issues aside and devote yourselves to accomplishing the job at hand.”
To the Sentinel’s direct and pointed inquiry, Nickel said, “I don’t foresee Andrea [Travis-Miller] coming back.”
Nickel said the reservations that his three colleagues had about the way the city was being managed, particularly within the last  year, were legitimate.
“I am at present very concerned about our budget deficit,” Nickel said. “We had to fill in $7 million during a recent council meeting. When we look at our leadership over the last year, I think it is very clear we have had a lack of financial controls.  When we came out of bankruptcy, we more or less committed ourselves to imposing spending controls. We have overspent our revenues considerably, particularly in our public works department. Now our public works director [Trish Rhay] has decided to go elsewhere. Our finance director [Brent Mason] left just as this $7 million shortfall was becoming evident. We need to look at that. It cost us $7 million-plus to correct major errors in the budget approved last year. We were functioning through most of this year on significantly overestimated revenues. I’m not going to say why that occurred at this point, but there needs to be [accountability] on the part of the city manager, who is responsible for presenting the budget to the council. If what is presented to the council turns out to be out of line with fiscal reality, that individual has to be held accountable. I’m not saying we should expect to hit a perfect balance with every last line item, but when we see we were presented with a budget that is off by $7 million, that is a pretty significant error.”
Figueroa’s election carries with it a significant impact on two of his soon-to-be council colleagues, Fred Shorett and Jim Mulvihill. Both are out of step with Valdivia on multiple score, and neither has made a secret that they consider Valdivia to be both dishonest and a political opportunist. The degree to which they are at odds with the mayor, compounded by the consideration that he now has the clear backing of a majority of the council, leaves them with inadequate political muscle and has transformed them into virtual irrelevancies on the council for the next two years.
-Mark Gutglueck

Upland City Manager Jeannette Vagnozzi is threatening to sue the City of Upland based upon repeated discussions the city council has held in closed session relating to her performance and what was characterized as prejudicial action against her, her attorney has confirmed.
According to Vagnozzi’s lawyer, Woodland Hills-based Terry Goldberg, last month, “on or about April 29, 2019,” the City of Upland, meaning some individuals employed by it, acting on its behalf or otherwise associated with it, “harassed” Vagnozzi.
Vagnozzi is the victim of intolerance vectored her way, Goldberg said, based on her “religious creed, dress and grooming practices, sex/gender, medical condition (cancer or genetic characteristic), age (40 and over), marital status,” and other issues associated with her being a “member of a protected class.”
Goldman suggested Vagnozzi was the object of the harassment and derision because of prejudice. He reiterated that Vagnozzi “was discriminated against because of complainant’s religious creed” which he said “includes dress and grooming practices, sex/gender, medical condition (cancer or genetic characteristic), age (40 and over), marital status, association with a member of a protected class and as a result of the discrimination was terminated, asked impermissible non-job-related questions, denied a work environment free of discrimination and/or retaliation, denied any employment benefit or privilege.”
Vagnozzi was also mistreated because she did not go along with the attitude she encountered, Goldberg said.
“Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment and as a result was terminated, asked impermissible non-job-related questions, denied a work environment free of discrimination and/or retaliation, denied any employment benefit or privilege.”
Additionally, according to Goldberg, Vagnozzi “has suffered discrimination, retaliation, and harassment based on her protected characteristics/activities.”
According to Christina Lara, Goldberg’s assistant, Goldberg’s firm, Goldberg & Gage, filed with the State of California’s Department of Fair Employment and Housing a discrimination complaint on Vagnozzi’s behalf on May 2. In a rapid turnaround, the State of California’s Department of Fair Employment and Housing on the same day, according to Lara, sent to Vagnozzi, in care of the Goldberg & Gage firm, a document known as a notice of case closure and right to sue. That letter states that because Vagnozzi, through Goldberg, had requested an immediate right to sue, the State of California’s Department of Fair Employment and Housing would not itself pursue an investigation of the alleged discrimination but rather had cleared Vagnozzi to pursue a lawsuit against the city in a California court of competent jurisdiction on her own, according to Lara. The letter states that Vagnozzi has one year to file such a civil action from the date of the letter. Moreover, according to the letter, if Vagnozzi intends to pursue a case against the city for discrimination in federal court, she must seek a federal right to sue letter within 30 days of receiving the May 2 letter or within 300 days of the alleged discriminatory act, whichever is earlier.
On May 7, Upland City Clerk Keri Johnson was notified by a letter from Lara dated May 6 that Vagnozzi had obtained a right to sue letter form the State of California’s Department of Fair Employment and Housing.
While the complaint filed with the State of California’s Department of Fair Employment and Housing by Goldberg on Vagnozzi’s behalf seemed to suggest that Vagnozzi had been terminated, that is not the case. She remains, as of today, as Upland city manager. There have been three previous closed door council discussions with regard to her performance since March. While the agenda items relating to all three of those signaled that Vagnozzi’s performance was to be discussed, none of them mentioned termination. All three of those were at specially-called meetings rather than at normally scheduled council meetings, which entail an open public meeting within the city’s council chambers before and within earshot of the public, but which often also involve adjournment prior to the public portion of the meeting of the council into an executive session behind closed doors to which the public is not privy. California law in the form of the Brown Act – the state’s open public meeting law – permits the governing boards of local governments to conduct such private meetings to discuss a limited palate of issues, specifically potential or actual litigation involving the city or agency, negotiations with public employee unions relating to collective bargaining, negotiations for the sale or purchase of real estate, and the hiring, performance evaluation, disciplining or firing, of employees of the city or agency.
At a specially called meeting on March 4 the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
At a specially called meeting on March 17 the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
At a specially called meeting on April 29 the council had a closed door meeting for the purpose of a “public employee performance evaluation” relating to the city manager. There was no action reported to the public after that meeting.
In addition to Goldberg’s complaint erroneously asserting that Vagnozzi has been terminated, it also inaccurately states that Vagnozzi resides in Woodland Hills. In fact, Vagnozzi is a resident of Rancho Cucamonga.
Next Monday, May 13, at its normally scheduled meeting, the city council is again scheduled to take up the subject of the city manager’s performance. The agenda for that item differs from the three previous scheduled discussions in that it calls for a “performance evaluation and consideration of public employee dismissal” relating to the city manager.
Vagnozzi told the Sentinel, “I have a right to representation, and I have retained a lawyer to make sure I am represented.”
She acknowledged that there were some inaccuracies in the way in which Goldberg had characterized her claims against the city. The inference that some have drawn is that she is claiming she is being ostracized because of her sexual orientation, her manner of dress or the church she attends. She said that “is incorrect information. Perhaps he [Goldberg] confused me with another client. I am not homosexual and do not actively have any sign of cancer though do receive treatment from an oncologist. I attend a Catholic church. I have not been terminated at this time but have had numerous closed session ‘evaluations.’”
She said she had only recently retained Goldberg . “I am not sure where the responsibility for the miscommunication lies,” she said.
She acknowledged that there was a significant distinction between the evaluations of her performance the council had scheduled at the recent specially-called meetings and the upcoming May 13 regular meeting. “The previous closed sessions didn’t go beyond my performance review,” she said. The inclusion of the terminology “termination” in the agenda for the executive session discussion on Monday, she said, is an indication “They are giving themselves that option.”
-Mark Gutglueck

The Redlands City Council this week approved having the City of Redlands enter into a so-called “strategic partner agreement” with the University of Redlands that would potentially involve city employees in a virtually intractable conflict of interest involving costs in the hundreds of thousands of dollars annually to ensure that project proposals such as expansions and building construction be properly inspected and the applications for those projects be properly processed.
On Tuesday night, May 7, the city council with Mayor Paul Foster absent and Councilwoman Denise Davis abstaining approved what acting City Manager Janice McConnell called “a strategic partner agreement between the City of Redlands and the University of Redlands offering discounted degree programs to city employees and their qualified dependents.”
McConnell recommended that the city enter into the arrangement with the university, providing the rationale that “The city highly encourages employees to continue their education and obtain degrees through institutions of higher education. The University of Redlands offers a strategic partner agreement that enables employees to attend the university and have an opportunity to receive a discount on their tuition provided that they meet the program’s ongoing requirements.”
McConnell added that “Through the program, the university offers discounted tuition, customized education, training opportunities, special events, and other considerations to benefit-eligible employees, spouses/domestic partners, and dependents.”
McConnell said, “Participants in the program shall receive the tuition discount of 15 percent for programs offered at any of the Redlands regional campuses and 10 percent for programs offered by the School of Education programs and School of Continuing Studies certificates and workshops. Within the city, this program may provide employees with the ability to acquire knowledge and skills that may further their personal career aspirations and their work for the city.”
While some level of benefit might accrue to the city from the program, potentially enhancing the quality of work and skill level of the city employees who take advantage of it, it will also represent a benefit to the employees themselves. Therein lies a certain legal difficulty.
According to the California Fair Political Practices Association: “Local elected officers, candidates for local elective office, local officials specified in Government Code Section 87200, and judicial candidates may not accept gifts from any single source totaling more than $500 in a calendar year. (Section 89503.) Employees of a local government agency who are designated in the agency’s conflict of interest code may not accept gifts from any single source totaling more than $500 in a calendar year if the employee is required to report receiving income or gifts from that source on his or her statement of economic interests (Form 700). (Section 89503(c).)”
Tuition at the university currently stands at $46,570 annually.
Thus, participating in the strategic partnership would put a city employee in a state of conflict if he or she were called upon to act in a regulatory capacity with regard to any project involving the university or if he or she were to oversee any coordination between the city and the university such as that involving the two entities and the San Bernardino County Transportation Authority in University Village, a multiphase project that will entail more than 350 residential units, 75,000 square feet of office space and another 70,000 square feet of retail and hotels built on 25 acres of university owned land adjacent to the train station over the next decade. Moreover, there are a multitude of places where the city’s regulatory function has some bearing on what the university is doing or might do with regard to land use, planning, construction, expansion, use of infrastructure, use of services, waivers from regulations and so forth. The same conflict would result if any city employee who had participated in the program were called upon in the course of his or her capacity as a city employee to engage in or oversee coordination between the city and the university relating to any endeavor.
Beyond that, the university has on its board of trustees a handful of individuals who are associated with entities or companies, such as Majestic Realty, subject to the city’s regulatory, policy or project approval or entitlement authority. This presents a further circumstance that might entail a compromising of the standards the city would apply, such that favorable treatment might be accorded to some that is not uniformly available to all.
Because of such considerations, some residents believe it might not be a good idea for the university to be providing favorable treatment to city employees that is distinct from what others might be eligible to receive.
The Sentinel inquired of Redlands City Attorney Dan McHugh and Redlands’ official spokesman, Carl Baker, as to whether they perceived any potential for conflict in the strategic partner agreement, and whether there was concern at City Hall that the university might use its extension of largesse or privilege to extract favors from the city in its dealings with city employees participating in the educational program the university is offering. McHugh and Baker were also queried as to whether they thought the arrangement might result in the companies associated with the university’s board members which are subject to the city’s policy or project approval or entitlement authority being accorded favorable treatment that is not uniformly available to all.
Baker said the city had placed responsibility for avoiding any such conflicts squarely on the shoulders of the city employees who might avail themselves of the university’s generous offer.
“In response to your questions, I refer you to the penultimate paragraph in the staff report accompanying this item, and particularly the last two sentences,” Baker told the Sentinel.
That passage in the staff report states, “As a part of participating in this special tuition program, staff performed due diligence relating to the discount offered to public employees. The state Fair Political Practices Commission, in adopting regulations to implement the Political Reform Act, has informed the city that the discounted tuition that it is being offered by University of Redlands may constitute a ‘gift’ for purposes of the annual reporting obligations of city employees who are designated as Form 700 filers pursuant to the city’s conflict of interest code. Employees are solely responsible for determining their individual legal obligations with respect to the Fair Political Practices Commission’s annual reporting requirements and compliance with the Fair Political Practices Commission’s limitations on the dollar amount of gifts acceptable from any one source in a 12-month period. Acceptance of discounted tuition may have legal consequences for such employees, and the city makes no representation with respect to, nor shall have any liability for, an employee’s participation in this discounted tuition program.”
Neither Baker nor McHugh spoke to the cost that would accrue to the city if, by complying with Fair Political Practices Commission limits, city employees recused themselves from dealing with any assignments relating to the university, necessitating that the city retain consultants to augment the staff and carry out the regulatory or project evaluation or inspection services needed for the university’s projects or undertakings.
-Mark Gutglueck

The San Bernardino County Board of Supervisors has rescinded the approval of a 248-unit residential development in Joshua Tree more than two-and-a-half years after its proponent was given clearance to proceed with the project.
While the Altamira at Joshua Tree gated community entailed an overall density that would have represented a land use that was less intense than far more dense projects deemed acceptable in the more urbanized areas of the county, the project provoked consternation in Joshua Tree, where lot sizes and the character of the environs is out of keeping with what the developer envisioned. YV 105 LLP, led by its managing principal, Ron Schwartz, had secured an option on the property, consisting of 105 acres near and around Friendly Hills Elementary School, because the zoning on the property, lying entirely within Section 33 and in most of Section 34, had been intensified in the early 1980s when its owner had been provided with a 25 percent density bonus because of a commitment to develop residential units exclusively for occupancy by senior citizens. That project was never undertaken.
When Schwartz and his partners came across the property and learned that up to 4.2 units per acre could be built on it, they submitted a plan for the Altamira gated community consisting of 248 homes built on 10,000-square foot (0.23 acre) lots. As originally envisaged, there would be a single entrance into the subdivision by means of a main street off of which a maze of lesser side streets connected to cul-de-sacs would branch. The entirety of the tract would have been enclosed with a wall or fence, creating an insular neighborhood within the Joshua Tree community. To retain the density concession of 4.2 units to the acre allowed for the property by the county in the 1980s, YV 105 LLP indicated, without making an etched-in-stone commitment, that the homes would be priced at around $250,000 and would be marketed to so-called “empty nester” retirees.
Locals, however, noting that the plan called for homes typical of an urbanized environment, including grass lawns, and the land in question consisted of an expanse as resplendent and visually striking as virtually any other landscape in the Mojave, one densely desert forested with Joshua trees, yuccas, creosote, cacti and an abundance of wildlife, bridled at the idea of the property being graded for blanket development.
A band of Joshua Tree residents let Schwartz and his cohorts as well as county land use officials know that they considered the proposal incompatible with its surroundings. Schwartz and his associates nevertheless engaged those in Joshua Tree in a running dialogue in an effort to convince them that the project would be of benefit to them. A primary goal in holding those discussions was to find at least a few local residents who would endorse the project to assist YV 105 LLP in making a case to the county that the project would be an acceptable addition in Joshua Tree.
In February 2009, YV 105 LLP hosted a community briefing on the development proposal, luring over 100 community members into attendance at the event, which included videotaping. Despite the best efforts of Schwartz and YV 105 LLP, they were unable to capture video of any local residents voicing support of the proposal.
Nevertheless, YV 105 LLP proceeded with its application to the county. Given that the 4.2 unit per acre density YV 105 LLP was proposing was relatively low in comparison to projects being built elsewhere, Schwartz and his team were able to convince county land use officials to process the application without requiring a full-blown environmental impact report under the California Environmental Quality Act, which would have entailed significant expense. Rather, they greased the skids for the development by having the body responsible for the project review – in this case the county planning commission, green light the project by what is called a mitigated negative declaration, that is a determination by the commission that any impacts of the project on the environment or the local area would be mitigated by conditions to be imposed upon the developer in the final project approval.
With wary residents of Joshua Tree weighing in from time to time, YV 105 LLP nursed its proposal through the examination process by the county’s land use services division, simultaneously convening public meetings, informational exchanges and holding discussions with Joshua Basin Water District staff relating to the project proposal. Similarly, Schwartz and his associates engaged in dialogue and meetings with the Center for Biological Diversity, which was not in favor of the project, doing so to be able to convince the county that YV 105 LLP was sensitive to the environmental impacts the project would have.
In 2014, YV 105 LLP scored a crucial breakthrough when a study of the project done for the county returned a conclusion the project could proceed. This triggered another wave of community-based resistance, including a unanimous vote by the Morongo Basin Municipal Advisory Council endorsing a resolution in opposition to the project, and a flood of letters to the county opposing the project.
The march toward full county approval of the project continued. As an increasingly alarmed Joshua Tree populace inveighed against the plan, citing its inconsistencies with the county general plan, its development code and the Joshua Tree Community Plan, the county processed the tentative tract map and allowed the project certification to take place without an environmental impact report subject to the approval of mitigated negative declaration. On April 7, 2016, the county planning commission, on a 4-to-1 vote with Commissioner Paul Smith dissenting, passed the project design. This triggered a deluge of protests, which were compended in a petition against the project signed by 160 Joshua Tree residents. Reading the handwriting on the wall, concerned community members organized into a group, coined JT 105 in obvious answer to the corporate name of YV 105, dedicated to stopping the development. Anticipating its appeal of the project approval would not succeed with the county board of supervisors, JT 105 put together a 66-page outline of a contemplated California Environmental Quality Act lawsuit that would follow the board’s approval were that to take place.
All of JT 105’s forces were marshaled on September 13, 2016, when the project came before the board of supervisors for reconsideration. With speaker after speaker registering opposition to the project, both within the hearing chambers in San Bernardinio and by means of video hookup from the county government facility in Joshua Tree, the board voted, with Supervisor Josie Gonzales absent, to continue the hearing until September 27. At that meeting, with further public testimony being cut off because the hearing on the matter had already been held and with Gonzales unaware of the public sentiment expressed against the project, the board voted 3-to-2, with supervisors Gonzales, Curt Hagman and Janice Rutherford prevailing and supervisors Robert Lovingood and James Ramos dissenting, to reaffirm the planning commission’s approval of the project, which included the tract map to create 248 single-family residential lots; a community center, 41 lettered lots for private streets, landscaping and drainage facilities; and a conditional use permit for construction of a sewage package treatment plant to serve the residential development.
JT 105 Alliance and other project opponents thereafter retained attorney Babak Naficy and filed a lawsuit under the California Environmental Quality Act on October 28, 2016, JT 105 Alliance v. County of San Bernardino, et al., San Bernardino Superior Court Case No. CIVDS161878. Based upon that suit, the expense that would be entailed in both contesting the legal action and the inevitable requirement of undertaking the environmental impact report the suit was calling for, YV 105 elected to withhold on pursuing the project. Schwartz and YV 105’s investors, casting about for a way to cut their losses, listed the land and the entitlement to build they had obtained for it on the market. So far there have been no takers.
On April 16, 2009, with the three-year anniversary of the project approval having elapsed, the three-year anniversary of the board of supervisors’ denial of the appeal challenging that approval approaching and no progress toward the project undertaking having occurred, the San Bernardino County Board of Supervisors voted to rescind all approvals for the project, including the approval of the tentative tract map for the 248 single-family residential lots, the community center, the lettered lots for public improvements and the sewer facility, the denial of the appeal upholding the planning commission’s approval the tentative tract map of the YV 105/Altamira Project and the adoption of findings for approval of the adoption of the mitigated negative declaration.
According to Terri Rahhal, the director of the county’s land use services department, in a report relating to the April 16 action “This item is submitted at the request of the property owner and applicant, YV105 LLP, to comply with terms of a legal settlement agreement.” After recounting the history of the project’s approval and the filing of the JT 105 lawsuit, Rahhal wrote, “Before any substantive decisions were rendered in the action, the project applicant and the petitioner reached a settlement, with one of its provisions requiring the project applicant to seek a rescission of all project approvals and environmental determinations. Consistent with the settlement reached in the action, the applicant has requested that the board rescind and set aside all action taken on September 27, 2016.”
YV 105 LLC still owns the property. It has yet retained the option, under the lawsuit settlement, to pursue another development project, but will be subject to undertaking the design and approval process, including an environmental study, to do so.
-Mark Gutglueck

An increasingly thin-skinned Adelanto City Council as early as Monday of next week will alter the rules it has in place with regard to conducting its meetings, including reducing the time members of the public are allotted to address the council from three minutes to two, preventing the public from addressing the council on new items it takes up before it votes on them, restricting the public from addressing any issues the council deems to be beyond its purview and ending the meetings at 10 pm.
In November, the city’s voters made a clean sweep at City Hall, voting out of office incumbent former Mayor Rich Kerr and incumbent former Councilman John Woodard. Former Councilman Charlie Glasper chose not to seek reelection. Elected anew were Mayor Gabriel Reyes, Councilman Gerardo Hernandez and Councilwoman Stevevonna Evans. While many residents believed the personality change on the council, which broke up the ruling coalition that formerly consisted of Kerr, Woodard and Councilwoman Joy Jeannette, presaged a dynamic shift in the city’s direction, the council has not moved far off the course that was set when Kerr was in charge.
The primary focus of the Kerr regime had been to put Adelanto at the forefront of California’s epochal cultural shift relating to the acceptance of marijuana as a legitimate intoxicant on the order of alcohol. For generations, marijuana had been a controlled substance, and was considered an illegal narcotic. Mere possession of the drug could result in a prison sentence. Harsher penalties were meted out for smoking it, using a vehicle under its influence, cultivating it, transporting it, possessing it in quantities over a half-ounce or ounce, possessing it in multiple packages as if it were for sale, possessing it for sale, or selling it. Even though the state’s residents okayed its use for medical purposes in a statewide initiative in 1996, the vast majority of local jurisdictions, including Adelanto, refused to permit its sale for medical purposes within their areas of authority. Under the city council led by Kerr, however, the city in 2015 moved first to allow the drug to be grown as medicine in massive quantities in indoor nurseries within its industrial park. In 2016, Kerr and his allies on the council, astutely taking the pulse of the public sentiment throughout the state as a vote on that year’s Proposition 64 approached, moved to open the city up to retail sales of medical marijuana that in turn set the table for retail sales of the drug for recreational purposes when the state’s voters passed Proposition 64, the Adult Use of Marijuana Act. Kerr’s vision, shared by Woodard as well as then-Councilman Jermaine Wright and to a lesser extent Councilman Glasper, was that Adelanto could get in on the ground floor of the California Cannabis Revolution, become the de facto Marijuana Capital of California, and have the city, which was under severe financial challenge to the point it was on the brink of bankruptcy in 2013, reap the benefits of the taxes that would be imposed on cannabis sales.
The single-minded devotion with which Kerr, Woodard and Wright pursued the marijuana riches dream alarmed many, including not only those who were unwilling to or slow to come to terms with the new social reality that using marijuana as an intoxicant was acceptable, but others who were willing to flex with the new age of tolerance but nevertheless perceived that the troika were exploiting the situation to line their own pockets and tolerate a graft-encrusted protocol for granting marijuana or cannabis-related business licenses, while bypassing the sensible application of regulations that should have been imposed on an industry that was now trafficking in a dangerous commodity. Indeed, Wright in November 2017 was arrested by the FBI and charged with accepting a bribe to assist an undercover FBI agent posing as a cannabis distribution business applicant get around city regulations. In the atmosphere that prevailed a year thereafter, Kerr and Woodard were chased from office.
Upon Reyes, Hernandez and Evans coming into office, there was an expectation they would put the brakes on the light speed momentum the Kerr regime had engendered toward the marijuanification of Adelanto. That expectation was not met, however, and the new council appears purposed to see that Adelanto fulfills much if not all of the vision that Kerr had for it. This has led to some outspoken criticism of the council. Neither has the council dispensed with Jessie Flores, who as the city’s contract economic development director under Kerr facilitated the cannabis-related business recruitment drive that was at one with Kerr’s vision and whom Kerr ultimately rewarded with an appointment as city manager, despite virtually no actual governmental managerial experience and a complete dearth of educational credentials relating to municipal management. The council defied widespread expectations that Flores would be given his walking papers almost immediately upon the new council taking its place on the dais. Flores’ removal has not occurred, and Flores remains in place.
In what many consider to be a faux pas, Flores earlier this spring abrogated the city’s arrangement with Geo Group Inc. to operate the Adelanto Detention Facility. While some have  hailed the closure of the facility, which has come under attack by activists for inhumane treatment of its inmates, as one that is overdue, others have been sharply critical of Flores for taking that unilateral action without public input and debate on the move.
Additionally, contentiousness over a host of issues in the city has escalated in recent months, often manifesting during city council meetings.
In an effort to quell what some consider to be the disruption of public proceedings and what others consider to be the natural manifestation of healthy debate and discussion inherent in the democratic process, City Attorney Victor Ponto and Assistant City Attorney Michael Campion, in compliance with the council majority’s request, drew up a resolution that if passed by the council will amend and revise the city’s ordinance pertaining to “conduct and order of city council meetings.”
Though the changes are controversial and likely to garner the type of resident protest and dissatisfaction the council is hoping to sidestep, Ponto and Campion insisted in a staff report that “The proposed resolution is consistent with the laws of the State of California and both United States and California Constitutions. The implementations of these changes to the regular conduct and order of city council meetings will minimize disruptions and allow the efficient and orderly disposition of matters essential to the operation of the city while still permitting robust observance of the community’s rights to petition the city and its officials and to participate in the governance of their city.”
According to Campion, the city council, out of concern for the recent disruption of several city meetings, tasked him and Ponto to “revise the rules of conduct and decorum applicable to council meetings.” The upshot, Campion said, is he and Ponto propose the recodification of the city’s meeting rules to reorder city council agendas so that the “general period of public comment follow[s] the consideration of new business; [there is a] limitation of public comments to two minutes rather than three; [speakers be subjected to] expressly limiting public comment to matters within the city’s jurisdiction; and [the council adopt the practice of] presumptively adjourning meetings at 10 pm, absent a majority vote to continue.”
Under the Ralph M. Brown Act, California’s open meeting law, Ponto and Campion say the council is at liberty “to impose reasonable rules on the right to public comment” including, but not limited to, regulations limiting the total amount of time allocated for public testimony on particular issues and for each individual speaker. The reordering of the regular city council agenda to consider a general period of public comment following the consideration of new business does not implicate either the statutory right to public comment enshrined in the Brown Act, nor the state and federal constitutional rights to petition government. Moving the public comment period until after new business is a content-neutral “time, place, and manner” style regulation. It does not limit the right to comment or to petition, it merely changes when that occurs. The rights to public comment do not specify the common practice of affording speakers three minutes to speak. While three minutes appears to be generally accepted as a sufficiently reasonable time period for individual comments, there is no legal requirement that three minutes be given. Indeed, the Brown Act expressly contemplates reasonable regulation on the ‘amount of time allocated … for each individual speaker.’ California decisions also hold that limiting a speaker to less than three minutes does not violate the Brown Act. Limiting public comment to matters within the city’s jurisdiction is contoured to the city council meeting’s status as a limited public forum, limiting comments to matters which the city has jurisdiction over. The Brown Act expressly contemplates this limitation. This topical limitation on the content of speech does not violate the First Amendment. The addition of a rule presumptively adjourning city council meetings at 10 pm, absent a majority vote to continue, is another “time, place, and manner” limitation that is expressly contemplated by the Brown Act.”
-Mark Gutglueck