The effort to remove Hesperia City Councilman Bill Holland came up short last week, as petitioners were able to obtain only 1,168 valid signatures of voters within the city’s Second District, 618 fewer than the 1,786 needed.
Holland, who has been on the city council since he was initially elected in 2010, was reelected at large in 2014, and then successfully stood for election in 2018 in the city’s Second District in what was the first by-district election in the city’s then-30-year history.
Holland, who has been a pro-development candidate throughout his tenure on the city council and who was heavily backed by the building industry at every turn in his career as an elected official, became crosswise of certain development interests when he voted against utilizing $18.3 million in development impact fees the city had accumulated to pave El Centro Road, including a span of it in an unincorporated county area between Topaz Avenue and the Interstate 15 corridor. The city’s paving of that roadway would have spared developers building in that area from having to defray the cost of the roadwork.
The switchover to districts in Hesperia left those in office more vulnerable to recall, since the threshold for signatures needed to endorse a petition for recall dropped to one-fifth of what it had been previously when council members were elected at large.
After Holland’s 2018 election, one in which his campaign had been in large measure funded by the money of developers he was at that point on the outs with, those developers networked with Larry Nava, whom Holland had defeated in the 2018 election, as well as Jim Erwin, the former head of the union representing deputies employed by the San Bernardino County Sheriff’s Department, to sponsor a recall against Holland. Holland, who had left the sheriff’s department and went to work as a security officer with the Hesperia School District, at one point had been a member of the union that Erwin headed.
An ostensible grounds for recalling Holland was his part in a scandal involving the school district and the Oak Hills High School Football Team relating to allegations lodged by former football player Josh Villegas, who said he was digitally raped in a hazing incident perpetrated by his teammates. It was alleged that Holland had carried out a sham investigation of Villegas’s accusations in an effort to whitewash the matter, and that he had allegedly purposefully destroyed evidence that would have validated Villegas’s accusations.
The recall effort took on a wider political import when Holland grew to become a prime mover in removing Jeremiah Brosowske from the Hesperia City Council last September based on a presumption that Brosowske actually does not live in Hesperia. The matter was a thorny one, as Holland had in 2018 voted to appoint Brosowske to the city council in the aftermath of the death of former Mayor/Councilman Russ Blewett. Brosowske and Holland were both stridently pro-development, much of their mutual support stemmed from the same sources and they initially endorsed each other in the 2018 race. The relationship between them soured, however, and Brosowske at more than one juncture vowed to see Holland removed from office.
Petitions with a total of 1,830 signatures affixed to them were turned into the Hesperia city clerk’s office. Mystery as to whether the recall effort would proceed to a vote ensued. On February 4, Holland asked for City Attorney Eric Dunn and City Clerk Melinda Sayre to update the community on where the recall stood. It was at that point that word was given that the recall effort had failed because of the insufficiency in the number of signatures.
Efforts to obtain comment from Holland and Erwin were not successful.

Even as San Bernardino Mayor John Valdivia was engaging in sexually-tinged vulgarities and untoward and inappropriate suggestions that they found offensive, two of Valdivia’s former staff members who resigned from the city on January 29 say he was intimating he was engaged in, or was attempting to involve them in covering up, the misappropriation of public funds or the reception of illegal or unreported money from donors or individuals with a stake in decisions he was involved in by virtue of his public position. That charge was made in claims those women filed with the city on February 13.
Mirna Cisneros, who worked as a customer service representative and was assigned to Valdivia’s office in that capacity relatively shortly after he became mayor in December 2018, and Karen Cervantes, who was hired as Valdivia’s assistant in September 2019, say they were subjected to Valdivia’s sexual harassment and advances, and endured a hostile work environment along with a string of humiliations after rejecting his advances.
Cisneros and Cervantes are represented by attorney Tristan Pelayes, who guided them in their efforts during their latter stage of employment with the city to be moved into positions outside the mayor’s office. When the city demonstrated it was not amenable to placing them elsewhere, they resigned. The filing of their claims begins a 45-day timeline during which the city has the option, or opportunity, to acknowledge the accuracy of their claims or reject them. Upon the claims’ official rejection, the pair would then be at liberty to sue the city, using as their causes of action the substance contained within the claims.
The claims by both Cisneros and Cervantes use the same language in stating that Valdivia “repeatedly subjected” them “to… offensive and/or graphic sexual comments, and sexually suggestive language and gestures.”
Cisneros said that on August 8, 2019, Valdivia sent her “a photo of his college girlfriend and that same day he discussed his relationship with her and ‘how hot’ she was.” On September 24, 2019, according to Cisneros’s claim filed by Pelayes, Valdivia “offered her his credit card and kept telling her to buy whatever she wants, specifically asking her to buy high heels. He also said that his wife does not have to know. He just wants her to feel taken care of. He repeatedly told her nothing is off limits.”
On September 25, 2019, the claim states, Valdivia at a gala in Los Angeles during the cocktail hour, “continuously made lewd comments about women and kept commenting on claimant’s appearance” and “continuously made comments about a specific woman at the gala. He said that she offered to ‘suck his dick’ in Washington. The following day, September 26, 2019, Valdivia renewed his discussion about the woman from the night before. He said, ‘Did you see the slut from yesterday who was wearing the black outfit showing her back? She is always at events; she is an escort who has offered to suck my dick in the elevator in Washington. She is such a whore. She kept looking at me yesterday. She always tries to contact me. But I don’t want to get my dick sucked by a whore.’ He also told claimant a story of him catching an elected official’s husband having an affair in an elevator in Washington. He also said that he ran into that person after and high fived him because the lady was ‘hot.’”
On October 2019, according to Cisneros’s claim, Valdivia “had a conversation about her future career goals and how he would want her to be his chief of staff. He told her that his next chief of staff should be a woman. He then proceeded to tell her about a California Assembly member who was having an affair with his chief of staff and how she should reach out to her to get ‘pointers’ on how to be a good chief of staff. Additionally, he asked her if she was happy in her marriage and would she consider traveling more with him to different states. He also mentioned that he could arrange to fly her out to New York.”
In a conversation that occurred after hours on November 4, 2019, according to Cisneros’s claim, Valdivia “repeated the story of the assembly member who had the affair with his chief of staff,” telling her “that his wife wants a divorce from him. He further told claimant that if she ever needs anything, to let him know. He said that if he wanted to buy something for her, his wife would not know because she doesn’t see that credit card statement.”
On December 16 and 17, 2019, according to the claim, Valdivia had Cisneros “join him on a trip to San Jose with him (against her will), a council member, and two developers. Before the trip she shared her concerns with her coworkers. She told them that she did not feel comfortable having to travel with the mayor. Despite her concerns, she was still asked to attend.” When they were in line getting ready to board the plane, the claim states, “Valdivia stood next to her and told her that she could ask him anything and nothing was off limits.”
On December 23, 2019, according to Cisneros’s claim, “ Valdivia called claimant into his office to help him with his flight and hotel accommodations for the USCOM [U.S. Conference of Mayors] meeting in Washington, D.C. During this time, another female coworker walked in and was speaking to him about the State of the City [speech]. He answered a call during this time and directed both women to stay in his office while he took the call. In front of both claimant and the other female staff member, Valdivia told the person on the phone that he ‘doesn’t care what needs to be done. Take care of him, make sure he is happy and satisfied. Do whatever needs to be done. Suck him off. I will suck him off if I need to! Just make it happen! Make his dick hard!’”
According to Cisneros’s claim, “These ongoing instances of Valdivia sexually harassing claimant, creating a hostile work environment, exposing claimant to unwanted sexual gestures and language, and quid pro quo quickly became a pattern culminating into a hostile work environment. Each time claimant refused Valdivia’s advances or rejected his behavior, he would put her on the ‘misery program,’ which involved, among other things, humiliating her, forcing her to engage in activities outside of her job description and requirements, and threatening her job. Valdivia would then make his advances again.”
According to the claim filed on Cervantes’ behalf by Pelayes, Cervantes went to work for Valdivia on September 30, 2019 and beginning on October 11, 2019, Valdivia intensified his efforts to initiate some order of physical relationship with her. The following day, Saturday, October 12, 2019, Valdivia insisted that Cervantes attend a weekend event, failing to get her to ”carpool” there with him. Cervantes said she attended the event despite being told by Valdivia’s chief of staff, Matt Brown, that attending weekend events was not part of her duties as Valdivia’s field representative. According to Cervantes’ claim, “During the above referenced event, on October 12, 2019, Valdivia insisted claimant drink gin and tonics even though she repeatedly told him she did not want to drink. Upon his insistence, claimant became uncomfortable, refused to drink, and left the table momentarily. Valdivia then proceeded to drink his cocktail and also finished the cocktail he had tried to force claimant to drink. Shortly thereafter, Valdivia told claimant he was feeling intoxicated and started moving closer to claimant, invading her personal space. He touched claimant while he whispered in her ear that at events such as this one, he is ‘not so strict,’ and that he is ‘cool.’ He said, ‘This is not like at work and we can have fun.’ The touching was unwanted and offensive. At one point during this event, Valdivia saw an Asian woman pass by. He told claimant ‘You know how I feel about Asian women!’ Claimant responded by stating she was aware he was married to an Asian woman. Valdivia replied that this woman was ‘so hot’ and that his wife ‘didn’t have to know’ what he does when he’s not home, and that he was going to ‘go after’ that woman.”
According to Cervantes’ claim, “Claimant became increasingly more uncomfortable and became unable to hide that discomfort. It was obvious to her that Valdivia noticed claimant’s discomfort and disapproval. Because claimant refused Valdivia’s advances and despicable behavior, Valdivia began to belittle, bully, degrade, and embarrass claimant in front of her coworkers during staff meetings and other gatherings. This retaliatory behavior continued and escalated throughout the next few months.”
According to Cervantes’ claim, “On various occasions, Valdivia would tell her to do something, then later switch it up and tell her that she didn’t follow his direction. He further sabotaged her work. During staff meetings, in front of her coworkers, he would yell directly at claimant, saying she doesn’t do her job.”
According to Cervantes’ claim, Valdivia sought to pit the women who worked in his office against one another, bringing up a subject, after which he would “insist that someone has to be lying to him.”
In December, in preparation for the city’s Christmas Open House event, according to Cervantes in her claim, Valdivia instructed her to use donation money to purchase decorations and toys for the event, and that “he wanted a big presentation.” Subsequently, however, according to the claim, “Valdivia called claimant and her co-workers demanding to know who authorized spending. He addressed claimant directly, with her co-workers on the line, and yelled at her, demanding to know who told her to spend the donation money. Valdivia was using this as an opportunity to further humiliate her in front of her peers.”
Valdivia also took the opportunity to belittle Cervantes and Cal State University San Bernardino, of which Cervantes was an alumnus, in so doing, discrediting one of the major institutions within the city of which Valdivia is mayor. The claim states, “On Thursday, December 5, 2019, claimant was attending a staff meeting, where another staff member mentioned getting an intern to help claimant with all her duties and projects. Claimant mentioned she could send an email out to SBVC [San Bernardino Valley College] or CSUSB, her alma mater, for a communications intern. Knowing that it was common knowledge that claimant had graduated from CSUSB, Valdivia engaged in a demeaning monologue in front of everyone about the ineptitude of CSUSB students, saying he doesn’t want to work with incompetent CSUSB students and that they are not high functioning.”
According to the claim, “Additionally, on January 10, 2020, Valdivia called claimant on the office line and said, “I have been drinking. It’s happy hour and I’m drunk. I need your assistance with scheduling a meeting with Council Member Nickel. Do whatever you need to do to schedule a meeting with the Council Member Nickel. Suck Valerie [Nickel’s secretary] off, if you have to. Make sure you get it done.”
According to Cervantes, in October, “Valdivia started asking claimant questions about her finances, such as ‘What kind of bills do you pay? Do you have a mortgage? I just want to know – are you worried about not having this job? What are your biggest expenses you need to pay? Tell me more about yourself!’ When claimant refused to answer these questions, Valdivia told claimant that it’s her fault that ‘we don’t have a friendship.’ Valdivia told claimant she should ‘‘try to have a relationship’ with him and that claimant ‘should stay in the office after hours to have friendly conversations’ with him, so that claimant may ‘get to know’ him better and ‘vice versa.’ When Valdivia told claimant this, she immediately knew Valdivia was warning her that if she didn’t consent to his degrading and unwelcome sexual advances and harassment, he would continue his ongoing antagonistic behavior toward her.”
According to Cervantes, Valdivia cooked up complaints about the quality of Cervantes work “after she refused his vulgar advances and behavior at the events in October 2019.”
According to Cisneros’s claim in particular, in his interactions with her Valdivia either let slip or openly acknowledged that he was misusing public funds for personal use and was at the very least in violation of the gift-receiving reporting requirements that are applicable to elected and public officials and perhaps had gone further over the legal line into accepting bribes.
According to Cisneros’s claim, “In December 2019, Valdivia said that he can get VIP tickets for future rave events, if claimant was ever interested in attending. He also mentioned that he also went to EDC [the Electric Daisy Carnival] in Las Vegas and everything was paid for and he did not report any of the gifts.”
Also according to Cisneros, “On December 17, 2019, Valdivia shared that he is really good friends with someone who is always offering him his private jet. He said that he will work something out where he does not have to claim it on his forms and wants to travel in the jet. He asked claimant if she would want to travel with him. He said there is always a way to get around everything. He also asked if she would like to go to New York for New Year’s Eve.”
According to Cisneros’s claim, “On January 14, 2020, Valdivia asked claimant to process a reimbursement to the airport for hotel and breakfast meal. He specifically asked her to be vague when sending the information to the airport staff about the meeting. He also said not to ‘name names’ of the individuals that he met with. Right after that conversation he stated that he had raised a lot of money on that specific trip for his campaign.” The airport alluded to is the San Bernardino International Airport, the executive board for which Valdivia is a member as a consequence of his role as mayor.
According to Cisneros’s claim, “On January 15, 2020, Valdivia shared that an ambassador had gifted him a bottle of alcohol that was worth $900 and he wasn’t going to report it. He also shared that he is always receiving gifts and not reporting them.”
Late last month, according to Cisneros, Valdivia sought to have members of his staff divert themselves to electioneering work on behalf of two of his political allies on the city council up for election on March 3.
According to Cisneros’s claim, Valdivia “called claimant and another female co-worker into an office. He asked claimant to close the door. He said that he wanted to speak to them about working Council Member Bessine Richard’s and Council Member Figueroa’s campaign. He said he would want them to request time off from work from the city and use their vacation time to help with the campaign. He said they would work for free. Claimant was hesitant, and told him she would get back to him after thinking about it. He said, ‘It’s not illegal. You are using your own personal vacation time.’ He said ‘I am not pointing a gun to your head. Just asking for your help.’”
According to Cisneros, Valdivia has aspirations of being elected to Congress, and he maintains that he is one step or more ahead of the FBI and other law enforcement agencies that were looking into accusations of graft pertaining to him and his administration.
In her claim, Cisneros said that in December Valdvia had “shared that his friend at the DA’s office called him personally and said that he is no longer under investigation and the FBI is no longer looking into him.”
In their claims, Cisneros and Cervantes assert they have sustained loss of gainful employment as a result of Valdvia’s actions and that they have suffered a host of maladies as a result, including loss of sleep, mental and physical pain and anguish, fear, as well as loss of self-esteem and confidence. Their claims specify that in each of their cases, “the amount of compensatory and other damages claims exceeds $10,000 and will lie within the unlimited jurisdiction of the Superior Court. Claimant also claims and seeks to recover herein, the statutory and other penalties, damages, attorney’s fees, expert fees, costs as provided by law, to include exemplary damages against John Valdivia.”
-Mark Gutglueck

Longtime Yucca Valley High School Track Coach Jay Stepp’s continuous requests to high school and district administrators that Holly Brimhall be relieved as the Trojans’ assistant track coach has resulted in Stepp’s removal, the Sentinel has confirmed.

Longtime Yucca Valley High School Track Coach Jay Stepp’s continuous requests to high school and district administrators that Holly Brimhall be relieved as the Trojans’ assistant track coach has resulted in Stepp’s removal, the Sentinel has confirmed.

Longtime Yucca Valley High School Track Coach Jay Stepp’s continuous requests to high school and district administrators that Holly Brimhall be relieved as the Trojans’ assistant track coach has resulted in Stepp’s removal, the Sentinel has confirmed.

The clustered field sedge, known scientifically as carex praegracilis, as well as by the additional common names of field sedge and expressway sedge is a species of North American sedge. Occurring naturally in the San Bernardino Mountains, carex praegracilis is cultivated in the specialty horticulture trade as a lawn substitute and in meadow-like plantings.
Native to much of North America from Alaska across southern Canada and throughout the continental United States, from Maine to California, except for the southeastern region, Carex praegracilis grows in wet and seasonally wet environments in a number of habitats from low elevations up to 10,000 feet, including meadows and wetlands. It tolerates disturbed habitat such as roadsides and thrives in alkaline substrates. Carex praegracilis produces sharply triangular stems up to three feet in height  from a network of thin, coarse rhizomes. The fine textured grass-like blades can reach 12 inches tall to form a thick weed smothering groundcover.
Under natural conditions it has a lush tousled appearance. In domesticated settings it is often trimmed to provide a low turf-like appearance. This plant tolerates drought, inundation, poor soils, salt spray, heat, cold, shade and foot traffic. It will thrive in sun and light shade, requiring some summer moisture but far less than the grasses used in conventional lawns. It will  go summer dormant if allowed to get too dry. It is deer resistant.
Leaves are basal and alternate with 2 to 4 leaves all near the base of the stem, 1 to 3 mm wide, up to 14 inches long and mostly shorter than the flowering stems. Stem leaf sheaths tightly wrap the stem, the front translucent whitish, straight to slightly concave across the top and the tip not extended above the leaf base. The ligule, which is a membrane where the leaf joins the sheath, is mostly longer than wide. Leaves are hairless but rough along the edges, flat but V-shaped in cross-section when young, and ascending to spreading.
The inflorescence is a dense, somewhat cylindrical array of flower spikes from 1.6 inches to 2 inches long. The plant is very rarely androgynous and rather most often dioecious, meaning its individual plants bear stamens, i.e., male flowers or, alternately, carpels, i.e., female flowers in its inflorescences, but not both.

Fruit develops in late spring through early summer, the pistillate spikes forming clusters of seeds, called achenes, each wrapped in a casing, called a perigynium, subtended by a scale. Pistillate spikes usually contain 4 to 12 fruits that are erect to ascending and overlapping on the stalk.
Pistallate scales are lance to egg-shaped, straw colored to reddish-brown with whitish edging and a green midrib drying to light brown, tapering to a pointed tip, about as long and wide as the perigynia and mostly concealing it.
The range of this sedge is spreading, especially along roadsides where the application of road salt has apparently encouraged its growth.
The butterflies and moths hosted by Carex praegracilis native to California included the umber skipper, poanes melane; the common ringlet, coenonympha tullia; the dun skipper, the euphyes vestris; the American ear moth, amphipoea Americana; the mountain beauty moth, syngrapha ignea; the American crescent borer, helotropha reniformis; the olive green cutworm moth, dargida procinctus; elachista cucullata; and the lesser wainscot  moth, mythimna oxygala. 

 From www.calfloranursery.com, www.minnesotawildflowers.info, calscape.org/loc-San_Bernardino_National_Forest,CA and Wikipedia

Flowers are blooming with fashion, and thanks to all the rain we had. California is in blooming luck! The weather has brought nice neutrals like gray to the fore, which goes  with the cool skies, and rainy days. Like the variegation of nature, the progression of clothing choice and fashion is nonstop.  Bye, animals prints! Hello, hello florals! Yes, florals are perfect for February and I’ll take the gray hints too. I’m okay if the florals aren’t in arrangements but in garments. It is so much fun and refreshing to incorporate prints in colored flowers. Wow! Magnificent! Florals aren’t always a thing of the moment in February, but if you look around you will see that this theme really is fitting in and doing its part to  refresh outfits. Who doesn’t love a top adrned with roses, or a sweater with carnations, or just a shirt with lily print. Got to love florals. They’re everywhere, they’re refreshing and soothing for outfits. Try dark florals, roses, or anything flowery that you are into, and add it to your denim, skirts or coats. The point is to keep adding colors that are going to take you into spring, which is just around the corner.

“To plant a garden is to believe in tomorrow.”– Audrey Hepburn

By Mark Gutgueck
The preliminary hearing for Alex Opmanis extended into its second week on Monday and this morning, as prosecutor David Starr Rabb continued to seek traction in his effort to convince Superior Court Judge Charles Umeda to bind Opmanis over for trial for murder in the killing of Sammy Davis on July 11, 2019.
The case is playing out against a backdrop of recurrent suggestions, elements of which have been confirmed during the preliminary hearing, that a central piece of evidence in the case had been tampered with as part of an effort to prevent Opmanis’s legal team from presenting a credible self-defense claim.
Sheriff’s department investigators initially reached the conclusion that Opmanis had acted in self-defense after his encounter with Davis and two of Davis’s companions, Robert Shuey and Shane Codman, on the evening of the second Thursday of last July. Davis, Shuey and Codman, all of whom have criminal records, had surrounded Opmanis, who was standing to the side of his vehicle in the parking lot of Goodwin’s Market in Crestline. Davis’s and Shuey’s criminal records were extensive, and Shuey roughly six months previous to the shooting had assaulted Opmanis in an incident that required Opmanis’s hospitalization, required facial reconstructive surgery and permanently damaged his vision in his left eye. After Davis, 29, and Shuey, 29, initiated a physical attack on Opmanis, 27, Opmanis accessed a gun inside his vehicle and fired it, striking Davis once. The shooting took place at 9:14 p.m. Opmanis used a cellphone to summon both the sheriff’s department and paramedics, remaining in place until the sheriff’s department arrived. Codman left the scene within three minutes of the shooting, and after Shuey retrieved at least two items from the ground near where Davis was lying, he too remounted his motorcycle and fled.
After the fire department responded to the scene, paramedics loaded Davis into an ambulance and transported him to Saint Bernardine Hospital in San Bernardino, where he was pronounced dead at 10:12 p.m.
In its initial public release of information with regard to the incident, the sheriff’s department did not release Opmanis’s name, providing only his age and identifying him as a resident of Crestline while referring to him as the “victim.” The release referred to Davis as the “suspect.”
Opmanis was arrested by the sheriff’s department on August 9, 2019, after he met with homicide detectives at their request to provide them with additional information relating to the shooting, and the detectives heard what they believed were statements from Opmanis that were inconsistent with his previous statements and evidence gathered since the shooting.
Opmanis has been charged with with PC 187, murder; PC12022.53(B), unlawful use of a firearm; PC12022.53(C), unlawful discharge of a firearm; and PC12022.53(D), unlawful discharge of a firearm causing death.
The case has garnered attention and controversy because Goodwin’s Market has security apparatus entailing a video system utilizing multiple cameras, including one which captured moving images of the events leading up to the shooting, the shooting itself and the events following the shooting. It was a viewing and auditing of the action and sounds captured on that video, which was purportedly unaltered and unedited from its original continuously-running state at that time, that convinced the sheriff’s department investigators initially assigned to the case that the shooting occurred in self-defense. At some subsequent point the video was altered, however, and chopped up into a series of irregularly staggered segments. At least three versions of the video exist, with inconsistencies between each. In at least two of those three versions, a crucial 12-second segment that occurs just prior to the shooting has gone missing. It was those two versions of the video that were provided to the defense. Footage from the video just prior to and just after the missing 12 seconds suggests that the physical assault on Opmanis being administered to him by Davis and Shuey was excised before the evidence was provided to the defense. There are other deletions from the video, including audio passages during which Opmanis claims Shuey and Davis were taunting him.
After a series of delays and continuances, Opmanis’s preliminary hearing began on Friday, January 31. Testifying that afternoon were detectives Gerardo Moreno and Kevin McCurdy, as well as Deputy Victor Ruiz.
Because Opmanis’s attorney, Deputy Public Defender David Spiker, is currently involved in another trial which is being played out before a jury Monday through Thursday, the preliminary hearing for Opmanis is being held in fits and starts on Fridays, though there was a brief hearing on Monday, February 3 before Judge Umeda relating to the provision of discovery material to the defense, during a break in the trial Spiker is involved in. That discovery material involved a police report relating to the arrest of one of the investigators on the Opmanis case, Eric Dyberg. Dyberg’s credibility as a witness could prove crucial, as he was involved at some level in securing the video of the shooting. Spiker was provided access to the arrest report on Dyberg, subject to a protective order by Judge Umeda which prohibited him from disclosing any of the information contained within it to the press or anyone not immediately involved in the preparation of Opmanis’s defense.
The first witness put on the stand by Rabb this afternoon was Detective Michael Cleary of the sheriff’s department’s homicide division, who testified that he had been present at the post mortem done on Davis’s body starting at 9 am on August 9. Cleary confirmed Davis’s birth date of August 20, 1989 and the tracking number for the body bag containing Davis’s corpse, which matched that testified to by Detective Gerardo Moreno last week as the one he witnessed Davis’s lifeless body having been sealed into for transportation to the coroner’s office. Moreno last week testified he had arrived at Saint Bernardine Hospital late in the evening of July 11 following the pronouncement of Davis’s death, after which he had made his own perusal of the body prior to it being dispatched to the coroner’s office.
Cleary identified a photo of Davis’s body taken during the post mortem. He said forensic pathologist Brian Hutchins had performed the autopsy, and that he himself had taken notes as the examination proceeded.
Rabb asked what Hutchins had related to Cleary during the autopsy, and Cleary said that there was an entrance wound above the left nipple and that the bullet had passed through the area of the sixth rib, then the lung, struck the aorta and exited at a location on Davis’s back. There was a metal endo-tube yet in Davis’s mouth and nasal passages, as well as an intravenous clip near his left elbow, and an incision on the left side of his chest, Cleary stated.
Rabb asked Cleary if Hutchins had made a determination as to the cause and manner of death. Cleary stated that Hutchins’ finding was that the cause of death “was a single gunshot wound and the manner of death was determined to have been homicide.”
On cross examination, Spiker asked Cleary if the single gunshot wound in the chest moving from the front to back and from the left side to the right side of Davis’s body in a downward trajectory was “consistent with Mr. Davis being shot from the front?”
“Yes,” Cleary said.
Spiker in his cross examination dwelt on the manner of death being homicide, seeking to elicit from Cleary clarification that homicide being the cause of death did not preclude the conclusion that the fatal gunshot had been fired in self-defense. This brought objections from Rabb that Spiker was asking Cleary to provide a legal conclusion he was not qualified to give.
Judge Umeda overruled the objection, which allowed Striker to ask Cleary if “someone shot someone one time in lawful self defense and the cause of death was a gunshot wound, would the manner of death be homicide just as it was in this case?”
“Yes, as far as it being consistent with the coroner’s conclusion,” Cleary responded.
Cleary also stated that his involvement in the case went no further than attending the autopsy performed by the coroner.
Thereafter, Davis’ death certificate was introduced by Rabb and entered into evidence.
The next witness was Detective Eric Ogaz, who led the investigation into the shooting under the supervision of Sergeant Angelo Gibilterra after the initial examination of the matter by Detective McCurdy had concluded the day after the shooting with a finding that there were plausible grounds to demonstrate Opmanis had acted in self-defense.
After he was assigned to investigate the shooting that took place in the parking lot at Goodwin’s Market, Ogaz testified, he had interviewed Shane Codman in the interview room at the sheriff’s station on July 25, 2019. Present for the interview, Ogaz said, was Codman and his attorney, Michael Fadin, and Detective Moreno. He said that Codman was not in custody. Codman told him that he had attended a motorcycle event put on by Harley Davidson in Riverside on July 11 and had ridden up the mountain in the company of Davis and Shuey to Twin Peaks, and went to Goodwin’s market to pick up hamburger meat so they could barbecue it, Ogaz said. Codman told Ogaz they had arrived at Goodwin’s Market at approximately 9 pm and parked in front of the market by the propane tanks. When he, Shuey and Davis were leaving the store, they were approached by a woman who asked if she could take pictures of them by their motorcycles, Ogaz testified Codman told him. When the bikers were leaving, Ogaz said, Codman indicated they were traveling at under five miles an hour as they headed out of the parking lot, and that Codman was wearing a helmet. As Codman was driving away, Ogaz said, he spotted someone standing on the railing of his vehicle waving his arms at him, and that he did not know who it was, so he turned around before leaving the parking lot and came back, at which point he recognized the person who had waved to him was Opmanis. According to Ogaz, Codman said he had known Opmanis for about four years and that prior to this incident he said they were friends, but that as he approached Opmanis “he appeared to be hostile and angry.”
Rabb asked if Shuey had also returned to the parking lot, and Ogaz indicated Shuey on his motorcycle had likewise approached Opmanis at his vehicle. Ogaz, relaying to the court what he had been told by Codman, said Opmanis was getting angrier, and had an exchange with Shuey “and stated something like ‘You jumped me.’ Robert told him he never jumped him and just wanted to be friends with him.”
Rabb asked Ogaz if he had questioned Codman about whether he was aware of an incident involving Shuey and Opmanis in January 2019.
Ogaz related that Codman had been present at the Dogwood Bar, which preceded the fight between Opmanis and Shuey that later took place at Shuey’s home. Codman did not witness the fight, according to Ogaz.
With regard to the night of July 11, according to Ogaz, Codman had said that while Opmanis was angry and accusing Shuey of jumping him, he was wearing a hoodie [a hooded sweatshirt], and had his right hand inside the hoodie. Ogaz said that Codman told him “He felt Alex [Opmanis] had a gun in his hoodie and was acting more brave than he normally does.”
In this fashion, Rabb endeavored to suggest to Judge Umeda by Ogaz’s testimony that the shooting was not one that spontaneously arose out of Davis’s assault on Opmanis.
Rabb then asked Ogaz what Codman had said about Davis’s presence at the scene of the shooting before it took place.
“Mr Davis was just kind of standing in the background,” Ogaz said Codman had told him. At some point, according to Ogaz, Codman said that Davis said something to the effect of “‘Do you want to get down,’ and started to approach Alex.”
Ogaz said that Codman stated that Davis did not place his hands on Opmanis and that he was not close enough to place hands on Opmanis or hit him, and that he did not witness Davis or Shuey point weapons toward Opmanis. It was while Davis was yet approaching Opmanis that Codman said Opmanis shot Davis five times, Ogaz testified.
When Davis fell to the ground, Codman told Ogaz, he and Shuey ran over to Davis, at which point, Codman related that Davis said, “You shot me in the heart. I’m dying.” Ogaz said that Codman told him he and Shuey moved Davis toward the back of Opmanis’s vehicle, away from Opmanis. After people started to come out of the store, Codman told Ogaz he told Davis, “I love you,” and then mounted his motorcycle and left.
Rabb asked Ogaz if Codman had gone to the sheriff’s station on July 12 to make a statement about what had occurred the previous night. Ogaz said that Codman did go to the station but had not made a statement.
Rabb asked Ogaz about Codman’s statement that Opmanis had fired five shots. Ogaz said it is not uncommon for a witness’s recollection of the number of gunshots fired to deviate from the actual number of shots.
Ogaz further testified that he interviewed Shuey on July 29, 2019, and that also present at the interview was Shuey’s attorney, Gary Smith, as well as Detective Moreno.
Rabb questioned Ogaz about what Shuey told him about the physical altercation Shuey had with Opmanis in January 2019. Ogaz said that Shuey told him he and Opmanis were together at the Dogwood Bar, which is walking distance from Shuey’s residence, that Shuey met a girl there who then returned with Shuey to his home, and that he had told Opmanis not to drink and drive, and to spend the night at his house. At some point, Shuey told Ogaz, he awakened that evening when Opmanis threw up on him, at which point he noticed there were several other subjects in his home drinking his alcohol. There ensued a physical altercation in which Shuey claimed that both he and Opmanis had hit each other with closed fists. According to Ogaz, Shuey claimed that Opmanis had given him a black eye and had loosened one of his teeth, and he had given Opmanis a black eye and a bloody nose.
Shuey told him during the July 29 interview, Ogaz said, that he had not seen Opmanis between the January 2019 and July 2019 incidents.
Shuey said in his July 29 statement, Ogaz testified, that on July 11 he, Davis and Codman had been at the Bike Night in Riverside earlier in the evening, whereafter they went up into the mountains to Goodwin’s Market to get hamburger meat and some beer. In leaving the parking lot, Shuey said that he led, with Davis and Codman behind him. Shuey had further stated that he had poor vision, indicating he had not seen Opmanis while they were in the market, in the parking lot or when initially leaving. After leaving the parking lot, he had seen in his side mirror that neither Codman nor Davis were behind him, and since Davis had a mechanical problem with his bike earlier, he thought Davis’s motorcycle might have broken down. When he returned to the parking lot, he told Ogaz during the July 29 interview, he saw Codman and Davis talking to someone near a dark SUV. As he approached the vehicle, Shuey said he could tell that Codman and the subject near the vehicle were in an argument, but it wasn’t until he walked up to them that he recognized Opmanis.
“What happened next?” Rabb asked
“Alex accused him [Shuey] of jumping him,” Ogaz said.
Opmanis was wearing a black hoodie and had his hand inside the hoodie, said Shuey, who told Ogaz that he thought Opmanis had a gun. When Shuey attempted to shake hands with Opmanis and say that he wanted to “just be friends,” Opmanis would not extend his hand to reciprocate, and Opmanis was “angry and hostile,” according to Shuey as related to the court through Ogaz’s testimony.
According to Ogaz, Shuey did not see Davis hit Opmanis.
Shortly thereafter, according to what Shuey told Ogaz, when Davis began to approach Opmanis, without warning Opmanis shot Davis.
After Davis fell to the ground, according to Shuey’s statement, he and Codman dragged Davis behind Opmanis’s SUV.
Shuey told Ogaz he left the scene because he was scared.
Rabb drew out from Ogaz that Shuey had said that prior to pulling out of the parking lot and then returning, he had not seen Opmanis.
Ogaz also testified that Shuey had come to the Twin Peaks sheriff’s office substation on July 12 to make a statement, but did not make a statement to him or other members of the department that day.
Rabb questioned Ogaz about the surveillance video, including referencing the critical gap in the footage just prior to the shooting. Ogaz  acknowledged that there were sequences missing from the video. He said he had spoken with Detective Eric Dyberg and another sheriff’s department employee, Matt Meyer, about “why there were gaps in the video.”
Rabb examined Ogaz with regard to the detective’s interview with Opmanis.
Rabb asked Ogaz if he had shown Opmanis the video and had asked the defendant why he did not just leave the parking lot prior to the shooting taking place.
In response,  Ogaz related that Opmanis said he could not remember what he was doing when he was in the parking lot.
Ogaz testified that he had interviewed Opmanis on August 13, 2019, beginning at 3:43 p.m. at sheriff’s headquarters in the homicide office. He said Opmanis was accompanied by his lawyer, whom he misidentified as Jeffrey Morse, the lawyer’s actual name being Jeffrey Lawrence. He said Opmanis was not in custody at the time, was voluntarily participating in the interview and was free to leave had he chosen to do so. He said Opmanis was calm during the interview.
When asked if he was under the influence on July 11, Opmanis said he was not, according to Ogaz.  Opmanis had met two friends and got groceries, he told Ogaz, and put the groceries away into his vehicle.
“According to Mr. Opmanis, he was by his vehicle when three motorcyclists came by, revving their engines, trying to intimidate him,” Ogaz said. The motorcyclists surrounded him, Ogaz said Opmanis claimed. Ogaz said that the three were trying to talk to him in a friendly manner but that he didn’t trust Shuey. When someone struck him in the head, Opmanis said he had reached into his vehicle and that he had fired the gun “backwards, under his arm” indicating he almost shot himself in doing so. After Davis, whose name he did not know, fell to the ground, Opmanis told Ogaz, he told the others to back off, and he called the police.
Ogaz testified that he had shown Opmanis the surveillance video during the interview, pointing out that he had put his groceries away well before the encounter with Davis, Shuey and Codman and that there was thus a discrepancy in Opmanis’s version of events and the timing of the events leading up to the shooting. Ogaz also referenced interaction between Opmanis and whom Ogaz referred to as Opmanis’s “two friends,” whom the Sentinel has identified as Johnny, whose last name has not been specified in any court documents available to the Sentinel and Osvaldo Nuno.
The testimony Ogaz gave this afternoon was somewhat inexact in that he was providing his recollection of what was depicted on the video without the video being played.
“While playing the surveillance footage, did he point out his vehicle and [that] he was in the surveillance video?” Rabb asked Ogaz.
“Yes,” Ogaz replied. “Did he identify his two friends?” Rabb asked.
“Yes, he did,” Ogaz said.  Ogaz also said that Opmanis was able to identify Shuey, Codman and Davis on the video.
In his questioning of Ogaz, Rabb angled at illustrating to Judge Umeda that Opmanis was in some fashion loitering in the parking lot prior to Shuey, Codman and Davis leaving, to suggest that Opmanis was lying in wait.
Ogaz at one point in his testimony indicated that Johnny and Nuno had left the parking lot.
Asked by Rabb if they had returned, Ogaz responded, “I don’t believe so.”
That however, is belied by one of the videos of the activity taking place in the parking lot both prior to, during and after the shooting, which shows that roughly six minutes prior to the shooting Johnny and Nuno are assisting Opmanis in loading groceries into his car, followed two minutes later, just about four minutes before the shooting, with them getting into their vehicle and leaving. The video, obtained by the Sentinel, shows the two returning in their vehicle to a position in the parking lot directly behind Opmanis’s vehicle roughly two minutes later. They were still there when the shooting took place, but left within seconds after the shooting.
Thus, in his questioning of Ogaz, Rabb comes across as emphasizing, as does Ogaz in his answers, that Opmanis was lurking in place.
Ogaz testified that when he asked what Opmanis was doing in the parking lot around the time Shuey, Davis and Codman emerged from the store several minutes after he had, Opmanis indicated he was putting his groceries away. Ogaz, however, who had already indicated that Opmanis’s friends had driven way, said that the groceries had already been stowed in Opmanis’s vehicle.
“Did you point that out?” Rabb asked Ogaz.
“Yes, I did,” said Ogaz.
“What did he say in response to that?” Rabb asked.
Ogaz indicated that in trying to get Opmanis to respond on that score, he made a point of the video showing Opmanis standing on the floorboard of his car, looking in the direction of Shuey, Davis and Codman as they were heading toward, and then at, their motorcycles.
Pregnant in that part of Ogaz’s testimony was that Opmanis had not taken the opportunity to leave in the minutes ahead of the shooting.
Moreover, Ogaz suggested, Opmanis honked his horn several times “until he got their attention by honking.”
In this way, Ogaz’s testimony implied, Opmanis was seeking a confrontation with the trio.
Ogaz said that Opmanis had explained his honking of the horn by saying he was “trying to get everyone’s attention just in case they attacked him.”
The video, however, Ogaz said, shows that as the bikers passed in front of Opmanis as they were purposed to leave the parking lot, the defendant reached into his vehicle to honk his horn “three or four times, which seemed to catch Shane Codman’s attention.”
It was Codman who turned around to then drive up to Opmanis, quickly followed by Davis and then later by Shuey. This element of Ogaz’s testimony underscored the prosecution’s theory that Opmanis had invited the confrontation that led to the shooting.
Rabb asked Ogaz what Opmanis’s response was when he asked him why he didn’t simply leave. The detective said that Opmanis said “he wanted to stay in the parking lot because he knew it had cameras and if Robert Shuey assaulted him the cameras would be his evidence.”
Rabb asked, “During the course of the interview, did Mr. Opmanis change his story?”
Responded Ogaz, “He changed his story a bunch.”
In his cross examination of Ogaz, Opmanis’s defense attorney, David Striker, succeeded in getting the detective to acknowledge that Davis and Shuey were childhood friends, that the interviews with Codman and Shuey did not take place until two weeks and more after the shooting, and that when Codman and Shuey were interviewed they were accompanied by attorneys, and that they had likely spoken with one another before their respective interviews took place to coordinate their narratives. Striker pushed Ogaz with regard to whether he frequently encountered witnesses represented by an attorney, and Ogaz stated that it was uncommon.
In an effort to undercut the prosecution’s suggestion that Opmanis had been lying in wait outside the market, Striker questioned Ogaz about whether Opmanis had seen Shuey, Codman and Davis inside the store and whether they saw him, and Ogaz stated that “apparently” they didn’t see each other.
Striker also wrung from Ogaz that Opmanis was not in violation of any law by simply being in the parking lot.
“Mr. Opmanis has the right to be where he is?” Strike said in an assertive question.
“Absolutely,” Ogaz responded.
Striker was also able to get Ogaz to acknowledge that Davis, Shuey and Codman had been drinking that evening, asking if Codman had said whether they had consumed alcohol at the motorcycling event in Riverside.
“I believe he stated they had been drinking,” Ogaz said. To a follow-up question, Ogaz said he had not determined how much the three had been drinking or if they were intoxicated. Striker asked if the intoxicative effect of alcohol “could affect one’s perception of events?”
“Yes,” said Ogaz.
Striker asked if Ogaz had verified Shuey’s claim of having been injured by Opmanis during the January 2019 incident between the two men. Ogaz indicated he had not. He then acknowledged that there was a police report and photographs that documented Opmanis’s injuries in the January 2019 fight, though he indicated he had not pulled the report himself.
In response to one of Striker’s questions in which the defense attorney characterized the three bikers as surrounding Opmanis, Ogaz corrected the defense attorney to say that they had “parked by him.”
Ogaz further confirmed that according to Codman, Davis had said to Opmanis “Do you want to get down [i.e., fight]?”
Ogaz also stated that Opmanis did not reciprocate Davis’s threat, at which point Striker zeroed in on Codman’s description of Davis’s aggressive demeanor after Davis got off of his motorcycle. Striker referenced Codman’s statement that “Mr. Davis quickly approached him and came in hot and confrontational and ready to fight. Is that the essence of what he said?” Striker asked.
“Yes,” said Ogaz.
Striker referenced Ogaz’s statement that the video did not show Opmanis being hit by Davis, but then stated that on at least one of the versions of the video “Mr. Davis is walking toward Mr. Opmanis and then 12 seconds is missing.”
Ogaz acknowledged there was a segment of the video missing.
Striker also asked if Opmanis had, after the shooting, “put the gun back in the car immediately?”
“Correct,” Ogaz responded.
Ogaz also confirmed, in response to Striker, that Codman and Shuey left the scene shortly after the shooting when Opmanis and others were summoning the authorities.
Striker noted that when Codman was interviewed on July 25, Ogaz had asked him why he had left so rapidly after the shooting, while his friend was on the ground dying. “You asked the obvious question: ‘Why did you leave the scene?’ That is when his lawyer objects and you never got that answer. You do believe that’s an important question?” Striker asked.
Ogaz acknowledged it was.
On Friday, February 14 at 1:30 a.m. in Judge Umeda’s courtroom on the second floor of the San Bernardino Justice Center, Opmanis’s preliminary hearing is set to resume, with Ogaz scheduled to return to the witness stand.

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Sentinel 02-07-20

In an apparent attempt to derail a citizen activist group’s effort to repeal what its members maintain are illegal assessments on all properties within San Bernardino County’s unincorporated areas, the county government’s legal representatives last summer imposed on the repeal petitioners a requirement that they obtain at least three times and what was arguably seven times the number of signatures set by California’s Constitution as the threshold requirement to force a vote on the matter.
In June of 2018, the San Bernardino County Board of Supervisors approved expanding the boundaries of County Fire Protection Zone 5 to include all private property within the county’s unincorporated areas, amounting to some 95 percent of San Bernardino County’s 20,105 total square miles, or roughly 19,100 square miles. The overlaying of County Fire Protection Zone 5 on those properties entailed the levying of a special tax of $157.26 per parcel on all unincorporated property owners in the county. The plan, floated by senior leadership within the county’s governmental structure, was to use state law applying to fire districts as a method to increase tax revenue.
The county’s action had taken place after previous efforts beginning in 2015 and concluding in 2017 to overlay County Fire Protection Zone 5, which was originally formed in 2006 as a means of funding the San Bernardino County Fire Department’s provision of fire prevention/suppression/protection service to the adjoining unincorporated county communities of Helendale and Silverlakes, onto the area within the city limits of the cities of San Bernardino, Twentynine Palms, Needles and Upland/adjoining unincorporated San Antonio Heights. Those four separate actions had been carried out through a process overseen by the San Bernardino County Local Agency Formation Commission. The city councils in San Bernardino, Needles and Upland, as well as the water district in Twentynine Palms, which had overseen that community’s fire department, sought to unload their ownership of, management and responsibility for each of their respective fire departments to the county. Those annexations had carried with them the imposition of assessments on the parcel owners within those jurisdictions to pay for the county fire department’s provision of service, taxes which had previously not been assessed. To get around the California Constitutional requirement that all taxes must first be approved by those upon whom they are to be levied, the cities, the county and the Local Agency Formation Commission carried out what was referred to as a “protest process” in which each landowner was given mailed notice of a one-month “protest period,” during which the county would accept letters protesting the creation of the assessment district. Each such letter was tallied as a vote against the annexation and assessment imposition. Each landowner who did not deliver a letter of protest was deemed to be in support of the annexation and assessments being levied, and a vote ratifying folding those cities into Fire Prevention Zone Five was cast on their behalf.
In the cities of San Bernardino and Upland, those entities thereafter committed to turning over a percentage of their property tax as part of the deal, and pocketed the difference between the savings realized from the closure of the fire department and the loss of a percentage of property tax each had committed to the county, as the city’s residents, business operators and property owners were at that point paying the lion’s share of the freight with regard to the provision of fire service. The city was free to use the money it netted as it deemed necessary, which in practical terms in both Upland and San Bernardino meant paying down substantial costs in paying pensions to retired municipal employees.
While this arrangement did not sit well with, indeed angered, a number of residents within those communities that were tuned into what the Local Agency Formation Commission was doing with regard to one of their local institutions and their control over the funding for a key element of service long considered to be an inherent part of the responsibility of local government, the vast majority of residents in those communities, unaware, apathetic, uncaring or uninformed about the pending county takeover of their local fire department, did nothing to prevent their community’s annexation into County Fire Protection Zone 5.
Only in the well-heeled unincorporated 2.619-square mile community of San Antonio Heights was there significant active resistance to the annexation. San Antonio Heights, since it was not a part of any city, was already provided with fire service by the county fire department. In seeking to accommodate the Upland City Council’s request that it consider that city’s annexation into County Fire Protection Zone 5, the Local Agency Formation Commission had rolled San Antonio Heights into the mix with Upland, with which San Antonio Heights is contiguous, such that both the city and its neighbor were part of the same annexation proposal. San Antonio Heights residents took stock of the consideration that the annexation would change nothing for them service-wise,  and would not improve the level of care the community would receive while imposing on them an annual $150 per parcel assessment they had never paid before. Indeed, so animated about what was going to be imposed upon them, a large number of the residents of San Antonio Heights protested mightily. Aided by the consideration that the community is a relatively compact one with a population of 3,371 of whom 1,561 were registered to vote, before the one-month protest period had run contact was made with virtually all of the residents and landowners by those militating against the annexation. Consequently, a number well above the 50 percent plus one threshold to reject the Fire Protection Zone 5 takeover manifested in San Antonio Heights, and those residents and landowners registered letters of protest accordingly. Because, however, the San Antonio Heights annexation was bundled together with the annexation of Upland, and because fewer than 2 percent of the landowners and voters in 74,000 population Upland lodged letters of protest, the annexation was allowed to occur. Thereafter, a group of San Antonio Heights Residents banded together as the San Antonio Heights Homeowners Association and filed suit against the annexation of their community into Fire Protection Zone 5. Ultimately, Judge David Cohn in February 2019 ruled in favor of the San Antonio Heights Homeowners Association in the case it had brought against the City of Upland, the County of San Bernardino and the San Bernardino County Local Agency Formation Commission, excusing the totality of San Antonio Heights from being annexed into Fire Protection Zone 5 and each of its property owners having to pay the $150 parcel tax.
Prior to that, however, the county had engaged in the countywide unincorporated property annexation ploy, not only outmaneuvering San Antonio Heights residents but essentially requiring that every property owner living outside of the county’s 24 incorporated municipalities pay the annual $157.26 per parcel tax, which was subject to a 3 percent annual inflation increase.
County officials, having seen how easily the expansion of County Fire Protection Zone 5 could be effectuated, the experience with San Antonio Heights not outstanding, calculated that it could replicate the expansion to cover 95 percent of the county’s land mass. The county had an incentive for doing so in that it needed to close a gap in the San Bernardino County Fire Protection District’s budget. Senior county leadership reasoned such a scheme could be carried off without voter approval by again utilizing the protest procedure. Accordingly, county officials simply overlaid all unicorporated land in the county with Fire Protection Zone 5. The total of proceeds to be realized from the Fire Protection Zone 5 expansion would yield a $26.9 million increase to County Fire’s coffers – with the potential to increase at three percent per year indefinitely.
Last summer, the Red Brennan Group, which is composed of several individuals who were associated with the late tax reduction and government reform advocate Kiernan Brennan, together with three residents of the unincorporated county area agreeing to sponsor an initiative –  Charles Pruitt, Rick Sayers, and David Jarvi – informed the county and gave legal notice of intention to circulate a petition to put a ballot measure before the county’s voters in its unincorporated area seeking the repeal of the special tax associated with Fire Protection Zone 5.
In doing so, the Red Brennan Group’s attorney, Aaron Burden, sent a letter to San Bernardino County Registrar of Voters Bob Page, seeking guidance from him on how many valid signatures the petition gatherers would need to collect to qualify the tax repeal measure for the ballot. In lieu of Page responding, Chief Assistant County Counsel Penny Alexander-Kelley, writing on behalf of County Counsel Michelle Blakemore, told Burden in a letter dated August 23, 2019, that the group would need to collect at least 26,183 signatures to force the repeal vote onto the ballot. “Your specific question is: ‘What is the number of valid signatures required to qualify the initiatives that were submitted to your office on August 16, 2019?’” Alexander-Kelley wrote. “The registrar of voters’ records indicate that the Red Brennan Group submitted two initiatives on August 16, 2019 both related to the special tax and San Bernardino County Fire Protection Zone FP-5. Elections Code section 931 O(a) provides that the number of signatures required for an initiative petition is ‘not less in number than 10 percent of the voters in the district, if the total number of registered voters is less than 500,000 ….’ as is true for the San Bernardino County Fire Protection District. Further, section 931 O(b) provides that the number of registered voters referenced in subd. (a) shall be calculated as of the time of the last report of registration by the county elections official to the Secretary of State made before publication or posting of the notice of intention to circulate initiative petition. According to the paperwork submitted to the registrar of voters, the notices of intent to circulate were published on August 15, 2019. Therefore, the “last report” to the Secretary of State prior to that date of publication was on February 10, 2019. The registrar of voters advises that the number of registered voters for the Fire Protection District as of that date was 261,831, therefore the number of valid signatures required for each initiative petition is 26,183.”
Accordingly, the Red Brennan Group undertook its signature-gathering effort after having made all of the required filings and legal notifications. In the course of the more-than-five-month campaign, it has compiled petitions to which over 34,000 signatures of individuals believed to be registered voters in the county living entirely within unincorporated areas have been affixed.
In the meantime, acting upon a tip provided by Red Brennan Group employee Solomon Barks, the organization contacted the Howard Jarvis Taxpayers Association for assistance. After making an analysis of the August 23, 2019 Blakemore/Alexander-Kelley letter, Laura Dougherty, senior staff attorney for the Howard Jarvis Taxpayers Association, determined that the county’s lawyers had misinterpreted one key portion of the law relating to qualifying a tax imposition repeal for the ballot and had ignored entirely another key provision of the law.
In a letter dated January 28, 2020 Dougherty wrote “regarding an August 23, 2019 letter from your office to Aaron Burden at The Red Brennan Group… You answered a question on behalf of Bob Page, the registrar of voters for San Bernardino County. Mr. Burden asked, ‘What is the number of valid signatures required to qualify the initiatives that were submitted to your office on August 16, 2019?’ Your answer to Mr. Burden was 10% of registered voters per Elections Code § 9310, or in your case, 26,183 signatures. While this is generally the calculation for district initiatives, it is not the case here. The Red Brennan Group’s initiatives ‘affect local taxes, assessments, fees and charges.’ Thus, the applicable law is Proposition 218 at Article XIII C § 3 of the California Constitution: Initiative Power for Local Taxes, Assessments, Fees and Charges. Notwithstanding any other provision of this Constitution, including, but not limited to, Sections 8 and 9 of Article II, the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge. The power of initiative to affect local taxes, assessments, fees and charges shall be applicable to all local governments and neither the Legislature nor any local government charter shall impose a signature requirement higher than that applicable to statewide statutory initiatives.”
Dougherty’s letter continues, “Therefore, the local government must abide by the signature requirement applicable to statewide statutory initiatives.”
Dougherty added, “This is found in Elections Code § 9035: An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by registered voters equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the voters for all candidates for Governor at the last gubernatorial election preceding the issuance of the circulating title and summary for the initiative measure by the Attorney General.”
Dougherty concluded, “Accordingly, please recalculate the number of signatures needed for The Red Brennan Group. The correct calculation is 5% of the voters in the district who voted in the last gubernatorial election.”
In an email dated February 3, the office of San Bernardino County Counsel acknowledged the analysis provided by the Howard Jarvis Taxpayers Association was correct. In a February 5 email to Burden, San Bernardino County Registrar of Voters Bob Page stated his office “…is currently working to calculate a number of required signatures for…” the initiative.
In the November 2018 election, during which the race for governor was held, 546,041 voters throughout San Bernardino County, including ones living within incorporated cities and in the county’s unincorporated areas, participated.  Of those 73,526 resided outside the county’s incorporated cities and within the unincorporated areas of the county, where Fire Protection Zone 5 has been overlaid. Had the standard of five percent of the 73,526 voters from the county’s unincorporated areas participating in the November 2018 vote been applied, the actual number of signatures necessary to qualify the measure for the ballot would have been 3,677 such endorsements provided by voters residing in the county’s unincorporated area.
The Red Brennan Group conservatively estimates the actual signature requirement to qualify the initiative is approximately 7,800 valid signatures.
While the determination/admission by both county counsel and the registrar of voters office that the number of signatures needed to qualify the measure for the ballot was far below the 26,183 figure quoted in August, that acknowledgment came too late to prevent the Red Brennan Group’s expenditure of well beyond double the funds and resources necessary to qualify the tax rescission measure for the November 2020 ballot.
Next week, after having made copies of all of the petitions and the signatures affixed to them, the Red Brennan Group will hand over the signed petitions containing all 34,000-plus signatures to the registrar of voters office.
It appears by setting the bar at something more than seven times as high it was legally permitted to for the Red Brennan Group’s signature gathering effort, the county was hoping to prevent those activists from succeeding with their cause. Instead, it appears the county has touched a nerve among its residents. Though generally not particularly concerned with the details of local government, residents of the county’s far-flung unincorporated areas have now become, as a consequence of the Red Brennan Groups activities, concerned about maintaining their rights under the California Constitution.
Tom Murphy, the spokesman for The Red Brennan Group said, “We are grateful to our experienced line employee that pointed us to the potential discrepancy in the signature requirement provided by the county. We are also grateful the Howard Jarvis Taxpayers Association brought its vast expertise to the table to advocate for the taxpayers in San Bernardino County. If you will, our organization’s dog in this fight is simply ensuring San Bernardino County’s citizens retain their constitutional right to approve taxes via a direct vote by the people. What the county bureaucracy is currently doing via the Fire Protection Zone 5 special tax is unconscionable. Expanding a special tax without a two-thirds vote of the electorate is a clear violation of the law. Elected supervisors should never have allowed this concept to see the light of day. We trust the county will qualify the initiative and place it on the November 2020 ballot.”
Blakemore, as county counsel, is paid $248,452.61 in annual salary, $22,089.86 in add-ons, along with $137,809.47 in benefits for an annual total compensation package of $408,351.94.
Alexander-Kelley is provided with a $187,500.51 salary augmented by $23,089.59 in further pay topped with $103,034.20 in benefits for, and thus is paid $313,624.30 in total annual compensation.
-Mark Gutglueck