If you hover and click on the blue portal below, you can draw up onto your computer screen an electronic replica of the December 31 edition of the San Bernardino County Sentinel.
By Mark Gutglueck
A jury this week convicted Robert Rodriguez, one of Victorville City Councilwoman Blanca Gomez’s primary political supporters, of two of the six misdemeanor counts that were originally lodged against him last month when he and Gomez were charged with having created public disturbances in June and July. Three of those charges were dismissed prior to the jury being tasked to determine his culpability, while Rodriguez was acquitted on one of the remaining counts.
Rodriguez’s trial was hurriedly commenced on December 2, after the prosecution, despite enumerating and providing detail with regard to the charges in a complaint completed on October 28 and filed with the court on November 1, failed to prepare itself for the proceedings and was caught flatfooted when Rodriguez did not waive his right to a speedy trial. Those proceedings, featuring as their main tableau a narrative provided by Deputy District Attorney Jason Wilkinson in which Rodriguez was cast as an inveterate troublemaker, from their outset were considered by virtually all involved as a dry run for the eventual prosecution of Gomez.
Despite solemn pronouncements from Wilkinson and other members of the combined Victorville/San Bernardino County governmental and legal establishments that the district attorney’s office is earnestly seeking to bring two miscreants to the bar of justice, the cases against Gomez and Rodriguez contain an undeniably political element that even Wilkinson eventually alluded to in his statements to the jury.
Wilkinson, as measured by the jury’s two verdicts in his favor on the three charges they at last considered, succeeded in demonizing Rodriguez as an incendiary agent provocateur constantly seeking to incite chaos and disorder, whether out of a deep-seated personality flaw or misguided devotion to promoting Gomez’s political reach. Simultaneously, nonetheless, the prosecutor put on display the degree to which Victorville municipal officials at odds with Gomez, elements within the sheriff’s department and his boss, District Attorney Jason Anderson, are gunning to bring the curtain down on Gomez’s tenure as a viable politician.
Indeed, as the trial progressed a perception grew that Rodriguez, fiercely loyal to Gomez and assisted in some degree by his attorney, Deputy Public Defender Matthew Canty, was intent on pursuing a defense that was angled less at acquitting himself of the charges lodged against him but rather exposing the double standard that those who wield the gavel of public authority employ in maintaining their positions of public trust and the degree to which the lawgivers in San Bernardino County – the county’s largest law enforcement agency and the prosecutor’s office – are willing to go to ward off challenges to the county’s dominating political class which controls the public treasury from which those entities’ budgetary allowances are made. In this regard, Rodriguez seemed intent on and in some ways succeeded in illustrating that in formulating the case against him, both the arresting agency in this case, the San Bernardino County Sheriff’s Department, and the prosecution – the district attorney’s office and Wilkinson – were seeking to gloss over and as best they could shield from the scrutiny of both the jury and the public action by one of Gomez’s chief political rival’s closest associates, that being the husband of Gomez’s political nemesis, Victorville Mayor Debra Jones, that was not much different than Rodriguez’s and which did not result in arrest or prosecution.
The case against Rodriguez stemmed from his action on three separate occasions – June 2, July 6 and July 20 of this year – while he was in Gomez’s presence.
The June 2 incident took place on the premises of the Panera Bread bakery-café at 11838 Armargosa Road in Victorville while both Gomez and Rodriguez were customers there. Rodriguez, somewhat ill-advisedly, began vaping. When he was asked by an employee to step out of the café because vaping was not allowed indoors, things grew confrontational, resulting in sheriff’s deputies being summoned. While the deputies were yet en route, a dispute over Gomez’s efforts to use her cell phone to video what was occurring erupted. The situation devolved from there when deputies arrived on the scene and alleged that both Gomez and Rodriguez were “trespassing” on the Panera Bread property, and came to the conclusion that Gomez’s efforts to use her cell phone to videorecord Panera Bread manager Maria Weatherbie, who had been involved in seeking to have Rodriguez desist in vaping, was tantamount to “battery.” The deputies requested that Rodriguez step outside the café. Rodriguez did so, refusing to provide the officers with his identification when it was requested. He was handcuffed and detained, put into a sheriff’s department vehicle for a time but taken out of the car and un-handcuffed after deputies determined who he was. Meanwhile, Gomez phoned Victorville Sheriff’s Station Captain John Wickum to complain about the treatment she and Rodriguez had been subjected to. Both Gomez and Rodriguez were cited but not taken into custody.
During the July 6 Victorville City Council meeting, a fracas broke out when city officials became warily regardful of Rodriguez, and Mayor Debra Jones called for the San Bernardino County Sheriff’s deputies, who were on standby to maintain order at the council meeting, to take action, to which Rodriguez reacted vocally and loudly. As a consequence, he was forcefully removed from the council chambers by the deputies on the scene.
On July 20, the city council was meeting once again, and had progressed to a discussion relating to employing interpreters to facilitate the participation of Spanish-speaking residents at city meetings. Rodriguez was wearing a hat and what appeared to be a ski mask while sitting near Jones’ husband, Ernest Jones, in the gallery within the council chamber. Rodriguez was using a device to video-record the meeting. The circumstance was complicated by the consideration that Ernest Jones was also, apparently, recording the meeting, which was remarked upon by City Attorney Andre de Bortnowsky. When Rodriguez trained the camera he was holding on her husband, the mayor objected, and in her capacity as the meeting’s presiding officer, ordered Rodriguez to discontinue recording. Gomez interjected that both Rodriguez and Ernest Jones were recording. Gomez, who had herself set up a camera on the dais and was livestreaming the meeting to her Instagram account, noted that she had recorded Ernest Jones using his camera to videorecord the meeting. As Rodriguez continued to record, Mayor Jones ordered the San Bernardino County Sheriff’s deputies who were present at the meeting to seize Rodriguez’ phone to determine if he had been recording, and then ordered him removed from the meeting chamber. When Gomez left her place at the council dais to move into the gallery, an altercation with deputies took place, and both she and Rodriguez were arrested, even as Gomez and Rodriguez continued to record the goings-on with their handheld devices.
Rodriguez was incarcerated and his phone was confiscated. Gomez, who suffered an anxiety attack after she was handcuffed, was taken to a hospital. Her phone was also confiscated. Upon the phone being returned to her, she learned that while it was in the possession of the sheriff’s department deputies had deleted the videos from the device and went into her Instagram account and deleted the videos there as well.
San Bernardino County Sheriff’s Detective Tyler McGee shortly thereafter obtained a search warrant from San Bernardino County Superior Court Judge Kyle Brodie to search the homes of Gomez and Rodriguez. On July 23, sheriff’s deputies and detectives served those search warrants. At Gomez’s home, she was not present, and the officers encountered only two of the nine residents there. Holding those residents, the home’s owner and his brother, at gunpoint, they seized a Nokia cell phone, an Apple watch, a Samsung Galaxy, a Samsung computer, a black/red USB drive, three iPads, a California driver license, a silver Apple laptop, three iPhone S series cell phones, four other iPhones, an Acer Chromebook, a Macbook Air, a Lenovo laptop, a white iPhone, a wallet with Robert Rodriguez’s California driver license, a black iPhone, Sky devices and a Microsoft laptop.
Rodriguez was at that point being held, and has remained in custody since, on a “flash incarceration” under Penal Code § 3455, which pertains to his having violated the terms of his post release community supervision requirement for parole he was granted relating to a prior criminal conviction. He was not at his residence when the sheriff’s department’s officers on July 23 served the search warrant there and seized items.
By the time of the three incidents involving Gomez, Rodriguez and the sheriff’s department in June and July, the tension between Gomez and the Victorville political and legal establishment had been building for nearly five years.
Gomez was elected to the Victorville City Council in 2016. Nearly from the outset of her tenure in office, she clashed with her fellow and sister officeholders. Gomez had an imperfect understanding of the limited reach of local governmental authority and its protocols, no mastery of parliamentary procedure, and she was out of step with not only the political orientation but the governance precepts of the other officials she was serving with. The situation was exacerbated by Gomez’s efforts to extend her limited oversight as a city official to advocacy of immigrant rights and social issues that are beyond the scope of her elected position, but which she maintains she is at liberty to actively embrace. Her antagonistic and contentious style often involves provocative acts, as when she draped herself in a Mexican flag during a council meeting, and this has further alienated her from her elected colleagues. In her crusade against what she considers to be large-scale societal injustice, she frequently takes recourse in accusing those resisting her efforts of having racist motivation. As a Democrat, her approach has not been well received within the Republican-dominated political establishment in both San Bernardino County and Victorville.
Moreover, Victorville was a particularly poor venue for such a crusade as that being waged by Gomez, one based on the proposition that Hispanics have been historically and universally oppressed by the white population in California and elsewhere in the United States, and that the oppression must be stemmed. In the 24 years before Gomez was first elected, Victorville had demonstrated itself as having a governmental structure that was among the most racially diverse not just in San Bernardino County but throughout the state, and a community where the long somnolent Latino political giant had first awoken. During the last decade of the 20th Century – from 1990 to 1999 – and the first 17 years of the 21st Century – from 2000 through 2016 – Victorville was the second most politically stable of the 24 municipalities in San Bernardino County, as there was very little turnover of the members of its city council, with 16 people having served on the council during those 26 years ending in November 2016. Six of those 16 council members were people of color. Five of those – Felix Diaz, Rodolfo Cabriales, Angela Valles, Gloria Garcia and Eric Negrete – were Hispanic. Of those five Hispanic council members, four were Republicans. Roughly 70 percent of California’s Hispanic voters identified as Democrats, with another approximate 10 percent registering no political affiliation or membership with the American Independent, Peace & Freedom, Green, Libertarian or other more obscure political parties. Only about 20 percent of California’s Latino voting population are Republicans. Nevertheless, in Victorville, a sizable element of the Hispanic community embraced Republicanism and its ideals, reciprocated by the collective community’s election of Latinos into positions of municipal governance.
With Gomez’s election to the council in 2016, three-fifths of the city council was Hispanic – herself, Mayor Gloria Garcia and Councilman Eric Negrete. In 2018, another Hispanic, Rita Ramirez, would supplant Negrete on the council, such that at that point, seven of the council’s members over a period of 26 years had been or were Latino. Two years later, in 2020, when Gomez was reelected, Garcia was voted out of office, replaced by another Latina, Liz Becerra. Also victorious in the 2020 race was Leslie Irving, an African-American. In this way, at present over the last 30 years, eight of 21 or 38.1 percent of Victorville City Council members have been Hispanic and 10 of 21 or 47.6 percent of the Victorville City Council members over those three decades have been people of color.
Those statistics render generally unsupportable the position Gomez has taken that the Hispanic population in Victorville has been disenfranchised. Gomez’s persistent accusations that Victorville’s political and governmental structure is a hotbed of racism has proven galling to the vast majority of those who have inhabited the city’s political and governmental establishment. Moreover, among virtually all of the Latinos who have achieved elective office in Victorville to become part of that establishment, Gomez’s public comportment is perceived as embarrassing and counterproductive.
Complicating the situation in general is that the position to which she was elected – the Victorville City Council – is a panel of relatively modest authority in comparison to Gomez’s grand political objectives, one that is dedicated to overseeing municipal government in Victorville, with its most notable reach being the ultimate authority on local land use decisions and having last say with regard to the city’s budget. Gomez’s focus was elsewhere, as she was intent on promoting the interests of Hispanics and crusading against the injustices – within the legal system, economically and at large – she was convinced were being perpetrated against disadvantaged minorities by the white establishment.
Gloria Garcia was mayor when Gomez first assumed her position on the council. Within the first three months after Gomez was sworn in, both Garcia and Councilman Eric Negrete had repeated confrontations with Gomez on issues of both substance and form. Gomez’s lack of knowledge and respect for parliamentary protocol formed the basis of multiple heated exchanges with the mayor. There were occasions where Garcia called upon deputies with the sheriff’s department, who served in the capacity of sergeants-at-arms during council meetings, to forcibly remove Gomez from the council dais and the meeting chamber.
Elected to the Victorville City Council in 2018 along with Rita Ramirez, a Democrat, was Debra Jones, a devout Republican. On some issues, Ramirez was in consonance with Gomez, and Ramirez’s presence on the council to a degree reduced Gomez’s isolation. In the 2020 election, in which a total of 22 candidates competed, the voters returned Gomez to office, while turning Garcia out. Also elected in 2020 were Leslie Irving, a Democrat, and Becerra, a Republican.
In December 2020, for the first time in more than a generation, the Democrats, after the new members of the council were sworn in, were in ascendancy on the Victorville City Council, holding a 3-to-2 numerical advantage over the rival Republicans. That would have seemed to bode well for Gomez, who at that point was the senior member of the council in terms of tenure. The tradition in Victorville, which does not have a directly elected mayor, is that the mayoralty is rotated among the council members, with the honorific gravitating to that person with sufficient experience on the panel who has not yet served in the mayoral capacity. Thus, in December 2020 the heir apparent as mayor was Gomez. Nevertheless, Jones was able to capitalize on Gomez’s by-then burnished reputation as an establishment outsider to outmaneuver her, garnering the support of her sister Republican Becerra and brokering a deal with Irving to provide her with the vice mayor’s position, known as mayor pro tem, in exchange for her vote to make Jones mayor.
Despite the consideration that the Democrats have a substantial 27,489 or 44.2 percent to 14,620 or 23.5 percent voter registration advantage among Victorville’s 62,226 voters, the Democrats’ ascendancy on the Victorville City council did not last long. Ramirez had injured her foot in a December 2019 fall in which internal bruising occurred but initially went undetected. Her condition worsened, and she was forced to undergo a series of foot and then lower leg amputations in early 2020 and had thereafter been brought by her grown son to the family’s vacation home in Twentynine Palms to recover. Based upon Ramirez’s failure to attend an extended number of council meetings, she was voted off the council in March of this year, on a 3-to-2 vote, with Jones, Becerra and Irving prevailing and Ramirez and Gomez dissenting. Since that time, the council has remained at four-fifths strength, as Republicans Jones and Becerra are not willing to accept any Democrat Irving and Gomez would support and Irving and Gomez are unwilling to put into office any Republican whom Jones and Becerra might support.
It is within that context that the arrest, prosecution and trial of Rodriguez took place and under which the pending trial of Gomez looms.
Regardless of the low esteem Gomez is held in by her council colleagues, her message has nevertheless resonated with a cross section of the community, which redounded to her 2020 reelection to the council. She has a coterie of supporters who can be counted upon to turn out at public events and meetings, close ranks with her and fend off the occasional attacks vectored at her from her opponents or those who have taken umbrage at the way she conducts herself. Among those in Gomez’s praetorian guard is Rodriguez, who had become, by early this year, a mainstay at city council meetings.
Like Garcia before her, Jones as mayor has had a testy relationship with Gomez.
One of Jones’ primary political supporters, Robert Harriman, pursued but failed in an attempt undertaken more than two years ago to recall Gomez from office.
Jones has acceded to the position of leadership of the Victorville political/governmental establishment, which has been Republican in nature with little deviation since the city’s 1962 founding. Despite the Democrats’ growing voter registration advantage both in Victorville and San Bernardino County in general, the Republicans have maintained the upper political hand by boosting the turnout of Republican voters to rates approaching three times that achieved by their Democratic counterparts, backroom deal making with Democrats who manage to get into office and co-opting ambitious Latino and African-American politicians and officeholders. The Republicans have simultaneously sold their advocacy of “conservative values” to a good cross section of the Hispanic and African-American population in Victorville, in an effort to convince them that the Republican approach to public safety and economic growth is in their interest. Jones, as Victorville mayor and a rising star in High Desert politics, is on good terms with the San Bernardino County Board of Supervisors, which consists of four Republicans and a single Democrat. In the same way the board of supervisors is, Jones is committed to promoting the GOP ideal of spurring development and economic growth, supporting law enforcement and being tough on crime.
Perhaps the strongest indication that Jones is a rock-solid manifestation of the Victorville Republican establishment was the 2021-2022 budget passed by the city council in her first mayoral administration last May, which boosted the city’s commitment to law enforcement in the form of its contract with the San Bernardino County Sheriff’s Department for police services by 15 percent over the previous year, from $29,574,517 to $34,129,863.
There is strong evidence to suggest that in the immediate aftermath of the July 20 arrests of Gomez and Rodriguez, Mayor Jones met with San Bernardino County’s Republican district attorney, Jason Anderson, after city officials learned that the basis for the arrests – videotaping a council meeting – would not suffice as grounds for a prosecution. Together with Harriman, who is likewise a stalwart within the Victorville Republican establishment, Jones reportedly pressed Anderson to have his prosecutors come up with some other rationale for prosecuting Gomez and her sidekick Rodriguez, getting convictions, and taking Gomez down a peg or two if not outright ending her trouble-making political career altogether.
Anderson assigned one of the office’s most accomplished prosecutors, Supervising Deputy District Attorney Britt Imes, who has a considerable, indeed enviable, track record in prosecuting and achieving convictions on major cases in the county, including murder, multiple murder and gang racketeering, to zero in on Gomez and Rodriguez. After three months, on October 28, Imes finished his draft of a complaint against Gomez and Rodriguez. On November 1, Imes filed that complaint, which charged Gomez with one misdemeanor count of violating PC148(a)1, resisting, obstructing or delaying of a peace officer and one misdemeanor count of violating PC242 – battery, both stemming from an incident on the premises of the Panera Bread bakery-café on June 2 and with two misdemeanor counts of violating PC148(a)1 – resisting, obstructing or delaying of a peace officer and one count of PC403 – disturbance of a public meeting, relating to her action on July 20. Rodriguez was charged with six misdemeanors alleged to have occurred in connection with the June 2, July 6 and July 20 events. He was nicked with being in violation of PC148(a)1 – misdemeanor resisting, obstructing or delaying a peace officer and one count of violating PC602(m) – trespassing with regard to the June 2 incident. He was charged with a single count of violating PC403 – misdemeanor disturbance of a public meeting growing out of what occurred at the July 6 meeting. He was further accused of violating PC148(a)1 – resisting, obstructing or delaying a peace officer, violating PC403 – disturbance of a public meeting and violating PC182(a)1 conspiracy to commit a crime in regard to the events of July 20.
The prosecution of Gomez and Rodriguez was a classic pitting of a group of coordinated, sophisticated, enabled, powerful and well-heeled government insiders against two pathetically naive perennial outsiders, whose command of protocol and the law is so poor as to be virtually nonexistent. It was clear that the arrest of Rodriguez in July, his continued incarceration and the filing of charges against both him and Gomez in November threw them both back on their heels. For that reason, perhaps, the prosecution itself convulsed when Rodriguez did not, as it was assumed he would, waive his right to a speedy trial. Thus, the court and the prosecution were faced with the need to begin his trial no later than December 1. When the trial had not begun by that date, Rodriguez’s attorney, Matthew Canty, prepared a Penal Code 1382 motion to have the charges dismissed.
On December 2, the matter was abruptly moved into the courtroom of Judge Kawika Smith, a longstanding defense attorney employed by the San Bernardino County Public Defender’s Office who had been appointed to the Superior Court by Governor Gavin Newsom in July and who had been sworn in in August. Judge Smith was under extreme pressure to demonstrate that as a jurist he has not carried over any of his pro-criminal defendant leanings.
The district attorney’s office had to scramble, and Imes appeared for the prosecution in Judge Smith’s courtroom on December 2, even though another deputy district attorney, Jason Wilkinson, was supposed to be prosecuting the case. Wilkinson was unavailable, as he was engaged elsewhere.
Hastily, a pool of jurors that had been called to the courtroom as a potential jury on another matter were sent to Judge Smith’s courtroom to serve as the jury in Rodriguez’s trial. Voir dire, the questioning of the jurors began, but was not completed by the end of the day. The reassignment of the jurors to the Rodriguez case was notable in that the San Bernardino County Superior Court and the district attorney’s office had earlier this year successfully resisted efforts by defendants to force their rights to speedy trials to be honored, including a defendant charged with murder and three felony enhancements who was twice denied a speedy trial on the grounds that the emergency precipitated by the COVID-19 pandemic justified precluding the impaneling of a jury and utilizing a courtroom to hear that case. Legal observers were astounded to learn that both the court and the district attorney’s office put a higher priority on a case involving six relatively minor misdemeanors than a murder case.
The jurors were ordered to return the following day. Nevertheless, in court on December 3 the jurors were sent home, and only procedural issues were discussed by the judge and attorneys.
On December 6, the jury returned and was accompanied by a second jury panel. Outside their presence, Judge Smith acceded to arguments made by the prosecution and denied the defense motion to dismiss the case because Rodriguez had been denied his right to a speedy trial. A procedural error occurred while both jury panels were present in the courtroom and their members were exposed to statements prejudicial to Rodriguez. Judge Smith dismissed both jury panels.
On December 8 a third potential jury panel was present for voir dire. Ultimately, due to unspecified considerations, that potential jury panel in its entirely was dismissed.
Later that day a fourth potential jury panel was brought in. After questioning, the considering of confidential information and the dismissal of one potential juror, a jury was selected, consisting of five white men, three African-American men, three Hispanic women and an Asian woman, along with two alternate or back-up jurors, an African-American woman and a Hispanic woman.
The following day, the trial began with opening statements, followed by the prosecution initiating putting on its case.
By the end of the trial, three of the original charges against Rodriguez – two counts of resisting, obstructing or delaying a peace officer and conspiracy to commit a crime – were dismissed with the assonance of the prosecution.
Multiple witness testified, including Maria Weatherby, the manager at the Victorville Panera Bread bakery-café; Mayor Jones supporter and Gomez recall proponent Robert Harriman, who was present at the city council meetings and had interaction with Rodriguez; Victorville Code Enforcement Officer Jorge Duran, who was present at the city council meetings and whom Rodriguez “shadowed”; Victorville City Attorney Andre deBortnowsky; and Mayor Jones.
There were glitches, irregularities and notable exchanges during the trial, to the point that the court imposed a blackout on information relating to the case. The prosecution failed to turn over evidence it possessed, once possessed, had seized or destroyed, which Canty considered key to the defense, including the video footage of the contretemps at the July 20 meeting the sheriff’s department offloaded from Gomez’s phone and then erased. Judge Smith made a finding that the prosecution in fact withheld evidence. He did not, however, grant Canty’s motion to dismiss the case against Rodriguez. There were suggestions, insinuations or accusations that Mayor Jones and deBortnowsky lied under oath and that Wilkinson suborned perjury. When questioned whether she had spoken with District Attorney Anderson or anyone from the district attorney’s office about remedying the arrests for videotaping and bootstrapping the charges into something upon which convictions could be obtained, Jones testified that “didn’t ring a bell.” deBortnowsky, who during the July 20 meeting stated that both Rodriguez and Ernest Jones were videotaping the proceedings, was unwilling to say anything on the witness stand implicating anyone other than Gomez or Rodriguez. In his rulings, Judge Smith did not make any definitive findings with regard to the perjury and suborning perjury accusations.
In his closing arguments, Wilkinson said that Rodriguez had a history of disrupting public meetings in Victorville, and had previously been expelled from meetings in 2018 and 2020.
Wilkinson said that “at both the July 6 and July 20 meeting [city officials] were absolutely required to take an unscheduled recess to reestablish order” because of Rodriguez’s interference in the proceedings.
At the July 20 meeting, Wilkinson said, Rodriguez victimized both Duran and Harriman.
“He followed Mr. Duran, leaning over him and peering at him,” Wilkinson said.
Rodriguez was not engaged in constitutionally protected free speech in doing so, Wilkinson insisted. “That is not an expressive action,” Wilkinson said. Rodriguez was being “disruptive and continued to record,” Wilkinson said, after he was told to discontinue doing so.
“It is not the recording itself which is disruptive, but the method that is truly disruptive,” Wilkinson asserted.
Wilkinson said that in reaction to Rodriguez, “Duran tried to move away,” but that Rodriguez “shadowed him for 40 minutes.” Wilkinson said that when Duran moved away from Rodriguez, Rodriguez “followed him around.” Duran was “shushing” Rodriquez, that is, urging him to be quiet, in an effort to discourage him from interrupting the meeting, Wilkinson said. Duran was, Wilkinson said, “asking him to stop, but the defendant failed to do so.”
Rodriguez was similarly harassing Harriman, Wilkinson said.
Rodriguez’s interaction with Duran and Harriman prevented them from observing the meeting and participating in it, Wilkinson said.
Rodriguez was motivated in his actions by “a longstanding issue between the mayor and Ms. Gomez,” Wilkinson said, and told the jury the defendant bedeviled the mayor’s husband, Ernest Jones, as well.
“The husband of the mayor was his next target,” Wilkinson said, relating how Rodriguez “sat by him on July 20, putting the camera in the face of Mr. Jones.”
Wilkinson said each victim thought Rodriguez’s conduct was bothersome.
“These were politically motivated intentional disruptions,” Wilkinson said. “He stopped the deliberations of government officials. He interfered with and stopped the meeting.”
Wilkinson said officials asked Rodriguez to desist. “He knew he was not in compliance with the request,” Wilkinson said.
While engaged in that disruption on July 20, Wilkinson said, Rodriguez was “covering up his identity with a ski mask.”
Wilkinson told the jury that the July 6 meeting also had to be stopped because of Rodriguez’s antics.
During the June 2 incident at the Panera Bread bakery & café, Wilkinson said that Rodriguez intentionally interfered with business operations by vaping and obstructing employees in their ability to carry on business with their customers. “He mocked a customer for snitching on him,” Wilkinson said. “He took an intimidating and aggressive posture. He refused to leave after he was contacted. He was aggressive toward Panera Bread management and caused her to focus her attention away from running the restaurant.”
Canty in his closing statement said that Mayor Jones’ testimony showed that the actions taken against Rodriguez at the July 6 and July 20 council meetings and Gomez at the July 20 council meeting, including the arrests, established that Rodriguez was not engaged in criminal activity and that city officials’ and the deputies’ action boiled down to the city’s attempt at “avoiding the appearance of impropriety.” Jones acknowledged, Canty said, that the action by the city and the deputies on July 20, was to “get a certain outcome,” which was the arrest and eventual prosecution of Gomez and Rodriguez. This translated into what had happened to Rodriguez being, Canty said, “a set-up.”
On the witness stand, Canty said, Mayor Jones had acknowledged that over the course of the entire ordeal, she had “changed her story,” having initially called for and justifying Rodriguez’s arrest as being done to curtail his recording of the meeting and then “going back after the fact” to say the arrest was made because of a violation of Penal Code Section 403, pertaining to disturbing a public meeting. Surviving evidence showed, Canty said, that Mayor Jones’ husband was himself recording the meeting and that “He pointed his camera right back at Mr. Rodriguez.”
Canty said that after the arrests on July 20 which were predicated on Rodriguez videotaping the meeting, Mayor Jones and her political supporter, Robert Harriman, came to recognize that accusing and establishing that Rodriguez had videotaped the meeting would not suffice in getting a conviction, and they therefore initiated a lobbying campaign with District Attorney Jason Anderson to utilize some other grounds – which ultimately turned out to be interrupting a public meeting Penal Code 403 charge – to justify the arrest and proceed with a prosecution.
Canty cited evidence of an exchange between Jones and Harriman on July 21 that contained the phrase “I hope the DA doesn’t show weakness,” to establish they were putting pressure on Anderson to file charges against Rodriguez and Gomez.
When Jones was questioned under oath, Canty said, she perjured herself.
“She could not remember if she had talked to the DA,” Canty said. “‘Doesn’t ring a bell,’ she said. You don’t forget talking to the DA about bringing charges against your political rival for five years. ‘Doesn’t ring a bell’ sounds like a lie to me. Based on the things she stated on the witness stand, she doesn’t have any credibility at all.”
Canty told the jury that under Section 54953.5 of the Brown Act, California’s open public meeting law, all citizens have a right to videorecord public meetings. To be convicted of a Penal Code Section 403 violation, someone must have an intent to disrupt a public meeting, he said. Rodriguez had no such intent, and no intent could be proven, Canty said, because Rodriguez had the right to record and “thought he could record because of Section 54953.5.”
The district attorney’s office had floundered about, while furiously militating to come up with a way of complying with Jones’ and Harriman’s request to redeem Rodriguez’s wrongful arrest on a meeting videotaping charge by substituting some charges that would suffice as grounds for justifying the arrest, Canty said. That was proven out, Canty said, by the consideration that “Charges were not filed until October 28,” consisting of, he said, “conspiracy to commit an interruption of a public meeting.” Ultimately, that charge was dropped, and the only allegation left was the disturbing of a public meeting.
Canty, latching onto the concept of conspiracy, immediately pivoted from a defense of Rodriguez to attacking the government.
“The conspiracy in this case rests with the government,” he said. “There was no conspiracy to interrupt a meeting.”
He then focused on the inability of the sheriff’s department, the city and the prosecution, which had possession of Gomez’s and Rodriguez’s cell phones and the data contained therein, to show evidence of such a plot to interrupt the July 20 meeting. Rather, Canty said, the sheriff’s department eradicated the evidence, which, if it had remained intact in Gomez’s and Rodriguez’s possession, would have been used at trial to vindicate Rodriguez.
“Getting a [search] warrant was part of a conspiracy,” Canty said. “A warrant is supposed to turn up evidence, not destroy it.”
Arresting Rodriguez and Gomez, taking their cell phones, searching their homes and seizing their possessions was not intended to prove a crime and ultimately produced no evidence that any crime was committed, Canty said. Rather, he intoned, “The search warrants… the only purpose of that was to send a message that ‘We’re not going to put up with what you are doing at public meetings anymore.’”
Canty said any exchanges Rodriguez had with Harriman and Duran at the meeting were expressions of his opinion and were protected by his right to free speech. That either Harriman or Duran disagreed with what he said or that one or both of them found those statements upsetting did not qualify as disturbing the peace, Canty said. The law prohibits disturbing the public peace, Canty said, not “disturbing the peace of an individual.”
That Rodriguez was not disturbing the peace was demonstrated by his not having raised his voice during the meetings, as one of the deputies present had testified that Rodriguez’s volume was somewhere “between a whisper and a mutter,” Canty said.
If indeed there was a disturbance of the public peace at the July 6 and July 20 meetings, Canty said, it was Gomez and Jones who were the perpetrators, with both having gotten animated over “silly stuff going on in the meeting. Both started yelling things. My client didn’t have anything to do with a disruption of the meeting. It was a rivalry between Councilwoman Gomez and Ms. Jones.”
With regard to the June 2 incident at the Panera Bread bakery-café, Canty said Rodriguez was not guilty of trespassing in a public place as charged, because under Penal Code Section 602, an individual must be asked to leave and refuse to do so before he is considered to be trespassing.
One of the deputies on the scene, Canty said, testified that Rodriquez agreed to leave the Panera Bread bakery-café roughly ten seconds after he was asked to do so.
Canty said that the prosecution had failed to disclose audio and video evidence in a timely manner as part of a political show trial.
“This is the People V. Robert Rodriguez not V. Blanca Gomez,” a visual display Canty placed on an overhead screen in the courtroom read. The entire contretemps was a manifestation of a “longstanding dispute between the mayor and Councilwoman Gomez, Canty said. He then closed with, “Return a not guilty verdict and tell them this charade does not have your support.”
In his rebuttal to Canty, Wilkinson said, “The evidence does not show a government conspiracy.”
That the district attorney’s office did not immediately move forward with the case as it was initially framed by the sheriff’s office after the July 20 arrests and rather readjusted the charges away from an emphasis on his having videotaped the meeting to a disturbance of the meeting was not an indication that the district attorney’s office and the city were plotting against Rodriguez, Wilkinson maintained. He said the prosecutor’s office normally revisits the issues surrounding a circumstance and interviews and re-interviews victims and witnesses before drafting a criminal complaint and filing it. “We repeatedly look back at what happened and take action,” he said.
“Taken in its totality, this case has been properly charged,” Wilkinson told the jury.
While stopping short of denying that Mayor Jones and Harriman had lobbied District Attorney Anderson to follow through with a prosecution, Wilkinson said no proof had been marshaled that such lobbying actually occurred. “There’s no evidence anyone spoke to the DA’s office about modifying the charges,” Wilkinson said.
The case for Rodriguez having disrupted the two public meetings did not come down to a single action, Wilkinson said. The defendant’s intent and culpability were established, he said, through the “totality of interruptions.”
Wilkinson, while sidestepping Canty’s accusations and insinuations relating to suborning perjury, perjury on the part of prosecution witnesses, the sheriff’s department’s destruction of evidence and the prosecution’s failure to provide both incriminating and exonerating evidence to the defense, said the seizure of Gomez’s and Rodriguez’s cell phones and the multiple items at their residences pursuant to the search warrant obtained after their arrests was justified, even though no relevant evidence was churned up.
“Just because it can’t be found doesn’t mean it doesn’t exist,” Wilkinson said.
The jury, after more than a day of deliberations returned verdicts of guilty on the trespassing count, not guilty on disrupting the July 6 meeting and guilty on disrupting the July 20 meeting.
A San Bernardino nonprofit club has learned the hard way that even in the face of California’s marijuana liberalization, state officials have yet to consent to the blending of intoxicants in a commercial context.
Arrowhead Elks Lodge, which has existed since 1959 and had a liquor license from almost the time it started, has now lost its right to serve alcohol, based upon its premises, located at 1073 North Mount Vernon Avenue, having been used for promotional events for marijuana, marijuana-based products and cannabis-based palliatives.
Arrowhead Elks was once affiliated with the national organization known as the Improved Benevolent Protective Order of Elks of the World, Inc., though that is no longer so.
Arrowhead Elks was the holder of a Type 51 Club license, which is a retail license issued to a nonprofit entity, authorizing sale of beer, wine and liquor to club members and their guests for on-premises consumption only.
The Arrowhead Elks Club intermittently uses its lodge in San Bernardino for its own purposes, but also regularly rents the premises out for other purposes.
Beginning in 2018 the Arrowhead Elks Lodge premises were leased out to various vendors selling marijuana and cannabis-derived products. On two occasions, August 15, 2018 and April 25, 2019, police served search warrants on the grounds of the Elks Lodge and impounded substantial amounts of cannabis products, as well as other evidence indicating that cannabis was being sold on the premises.
In June 2019, the California Department of Alcoholic Beverage Control issued an accusation seeking to revoke Arrowhead Elks’ alcohol sales license based on unlawful possession and sale of cannabis at the lodge.
According to the California Department of Alcoholic Beverage Control, on at least two occasions, those being August 15, 2018 and April 25, 2019, “Arrowhead Elks had knowingly permitted the sale, or negotiations for sale, of controlled substances or dangerous drugs at its premises in violation of section 24200.5 of California’s Business and Professions Code and its various subdivisions, which impose a general duty on licensed entities to maintain a lawful establishment, and for the licensee to be reasonably diligent in anticipation of possible unlawful activity, and to instruct employees accordingly.”
According to the Department of Alcoholic Beverage Control, Arrowhead Elks had knowingly permitted on its premises possession of a controlled substance for purposes of sale, in violation of Health and Safety Code section 11359.
A hearing on the matter was held before an administrative law judge. Testimony was taken from two officers of the Arrowhead Elks, those being its “house chairman” and its “exalted ruler and president.” Evidence was provided that another officer of the Arrowhead Elks, its “leading knight and vice president,” had hired a security guard for the events and hired another person to put up and take down tables for vendors to use; that Arrowhead Elks had charged cannabis vendors $150 for vending space, plus $100 for “permit purposes,” even though no permits were obtained; and evidence that a particular cannabis event promoter who goes by the name “Lyfe” or “McLyfe” attended a membership meeting of the Arrowhead Elks in August 2017, at which an upcoming “Lyfeevent in January 2018” was discussed.
Arrowhead Elks’ house chairman testified that he, under the “guidance” of the organization’s exalted ruler, was responsible for leasing out the organization’s premises for various events, including cannabis events organized by promoters. The exalted ruler testified that he knew “cannabis events” were being held at Arrowhead Elks’ Lodge. He also testified that he personally ensured that during those cannabis events, including on August 15, 2018 and April 25, 2019, all alcohol was removed from the lodge’s bar and put into a locked “alcohol closet,” to which he had the only key.
The administrative law judge recommended that all counts of the accusation be sustained and that Arrowhead Elks’ license be revoked. The administrative law judge found that Arrowhead Elks “was fully aware that it was renting out the licensed premises to promoters and vendors for cannabis sales events.”
The Department of Alcoholic Beverage Control adopted the administrative law judge’s proposed decision in full. The Elks’ Lodge appealed the decision, whereupon the Alcoholic Beverage Control Appeals Board heard the matter and reversed the department’s decision. In making its reversal, the appeals board found that the decision as to the cannabis related counts was not supported by substantial evidence.
The Department of Alcoholic Beverage Control in turn disputed the findings of its own Alcoholic Beverage Control Appeals Board, removing the issues involved to the California State Court of Appeal, Fourth Appellate District Division Two in Riverside. The matter was heard by a panel consisting of judges Michael Raphael, Carol Codrington and Marsha Slough.
“The department contends that its decision to revoke Arrowhead Elks’s license was supported by substantial evidence, so the appeals board’s finding to the contrary should be annulled. We agree,” the decision, penned by Judge Raphael and endorsed by Judge Codrington and Judge Slough states. “There is also no reasonable dispute that Arrowhead Elks knew that the cannabis sales events were being held at its premises.”
The appeals court panel’s decision continues, “Additionally, there is no question that the cannabis sales events that took place at Arrowhead Elks’s premises were unlawful. Cannabis remains a controlled substance under California law, despite the passage of Proposition 64, which legalized its recreational use. The commercial sale of cannabis is regulated under the Medicinal and Adult-Use Cannabis Regulation and Safety Act. It is not possible to be licensed to sell cannabis at a premises also licensed for the sale of alcohol. A temporary cannabis event license shall not be issued for a premises that is licensed for the sale of alcohol or tobacco. Premises licensed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act ‘shall not be in a location that requires persons to pass through a business that sells alcohol . . . to access the licensed premises’ and premises licensed under the Medicinal and Adult-Use Cannabis Regulation and Safety Act ‘shall not be in a location that requires persons to pass through the licensed premises to access a business that sells alcohol.’ A licensee [under the Alcoholic Beverage Control Act] shall not, at its licensed premises, sell, offer, or provide cannabis or cannabis products. Although Arrowhead Elks’s house chairman testified that the promoters showed him and the leading knight their ‘license’ for the events, he was either mistaken about the scope of the permissions the promoters had obtained, or he was not telling the truth.”
According to the ruling, Arrowhead Elks’ argument that the evidence to sustain the department’s ruling was insufficient because there is no evidence that Arrowhead Elks “kn[ew] that the licensed premises were to be used in an unlawful manner” and whether commercial cannabis sales are unlawful “becomes complicated” in light of the Medicinal and Adult-Use Cannabis Regulation and Safety Act, both failed. “[T]here is nothing complicated about whether temporary cannabis sales events such as those at issue here could be licensed to take place at a location that is already licensed to sell alcohol,” Judge Raphael wrote. “The Alcoholic Beverage Control Act, under which Arrowhead Elks’s liquor license was issued, states plainly that ‘[a] licensee shall not, at its licensed premises, sell, offer, or provide cannabis or cannabis products.’ The Medicinal and Adult-Use Cannabis Regulation and Safety Act implementing regulations state equally plainly: ‘A temporary cannabis event license shall not be issued for a premises that is licensed for the sale of alcohol or tobacco.’ Arrowhead Elks, as the holder of a liquor license, is responsible for familiarizing itself with the law relating to use of its licensed premises and operating those premises in accordance with the law.”
The appellate panel found unconvincing Arrowhead Elks’ argument there was no evidence that “illegal drug sales or possession occurred while [it] was operating its club license, or when its members or corporate officers were present” and that, as a “social club,” it “operates on a temporary or intermittent basis and only when its members are present.”
Judges Raphael, Codrington and Slough stated, “The idea here is, essentially, since the alcohol was locked away and no club members were present during the cannabis sales events, Arrowhead Elks was not using its license at the time, so it should not be subject to discipline based on the activities of the nonmember promoters, vendors, and customers. Both the department and the appeals board rejected this line of argument, as do we. The prohibitions at issue are not triggered by whether the premises were open for the sale of alcohol at the time, but by whether the premises are licensed for the sale of alcohol, and whether Arrowhead Elks allowed those premises to be used in an unlawful manner.”
An incremental inroad against the graft and influence peddling besetting the Acquanetta Warren regime in Fontana was achieved earlier this month, when Fontana’s elected officials were essentially shamed by their recently-hired interim city manager into requiring that they and the candidates who will compete against them for elected office must file the campaign finance disclosure documents required by the Fair Political Practices Commission of all politicians in California electronically.
Previously, before Warren was elected to the post of mayor in 2010, the city clerk’s office in Fontana had an open access policy with regard to public documents, including campaign funding disclosure documents known as Form 460s, allowing the public to see and chart from whom Fontana’s elected officials – primarily the mayor and members of the city council – were receiving campaign donations and in which amounts. Within a relatively short timeframe, the city council in Fontana, led by Warren in her role as mayor, became immersed in a pay-to-play ethos under which business entities seeking city franchises, city contracts for goods or services, or approval for development projects within the city could trade political donations to Warren and other members of the council for votes in favor of granting those franchises, contracts or project approvals. To prevent the public from having easy access to the documentation that would indicate or prove that such quid pro quo arrangements – tantamount to outright bribery – were ongoing, Warren put pressure on the city clerk’s office to discontinue making the 460 forms available on the city’s website.
When those forms were submitted by the elected officials in an electronic format, the city clerk’s office could simply upload them onto the city’s website. To comply with Warren’s demand that the city discontinue making the 460 forms easily available to the public, the Fontana city clerk in 2011 informed council members and council candidates that her office would no longer accept campaign finance disclosure forms that were submitted electronically, and that the forms had to be submitted on paper. Since mounting the disclosure documents on the city’s website required that they first be scanned and converted into electronic form – a personnel-intensive and time-consuming process – the city clerk’s office was thereafter able to justify not having the mayor’s and the city council’s 460 forms available for perusal on the city’s website.
With the change in policy, it was no longer possible for members of the public or journalists or anyone inclined to check up on the motivations of the Fontana mayor or the members of the city council relative to their votes to do so anonymously or remotely from City Hall. To see any such documentation, the individual doing the inquiry was obliged to come into City Hall, identify himself or herself, and make a physical inspection of the documents at the city clerk’s counter, making himself or herself subject to being photographed or seen by the mayor or members of the council, as well as accompanying efforts to dissuade the individual from making an issue over what information had been gleaned or obtained. In response to some requests, claims were made that the paper documentation was not available or the personnel to serve as the intermediary in accessing it was not available, necessitating that the individual seeking it make a return trip at a specified time, again subjecting him or her to being seen or confronted by a member of the city council or the mayor.
On occasion, the city clerk’s office responded to email or telephonic requests, and would scan the documents requested, and provide the documentation in an electronic form as email attachments or post them to a private access page through the city’s internet server, and provide the link to the person making the inquiry. After a set number of days, the link would expire.
In some cases, the city clerk’s office, particularly in cases where the requested information was recognized as having implicated Warren and her council colleagues in out-and-out corruption of the political process, would accede to pressure from Warren and the council and simply ignore the requests.
In recent months, as the degree to which Warren and her council allies Pete Garcia, Phil Cothran Jr. and John Roberts have traded their votes for campaign cash has become more widely recognized, interim City Manager Shannon Yauchzee and City Clerk Tonia Lewis have realized that remaining complicit with Warren and the council in the pay-to-ply ethos that has gripped City Hall for a decade now will potentially harm their reputations. Lewis previously was able to distance herself from the decision to obstruct the public’s access to the 460s filed by the mayor and council members because in Fontana the deputy city clerk, who is appointed by the city manager and not answerable to the city clerk, is responsible for the day-to-day operations of the office, while also serving as the custodian of the official records of the City of Fontana. In Fontana, it is the deputy city clerk rather than the city clerk who manages the citywide records management program.
The two city managers in place previous to Yauchzee, Ken Hunt and Mark Denny, were highly beholden to Warren for their positions, salaries and benefits. They used their authority as city manager to prevent the deputy city clerk from embracing a policy of electronic filing of campaign reports to shield the mayor and council from unwanted scrutiny of their willingness to exchange money provided to them by their campaign donors for votes made in favor of those political backers.
At present, Warren has funds that are at least in excess of $350,000 in her campaign war chest and perhaps more than $500,000. The city clerk’s office is yet refusing to release that information.
Lewis was unavailable this week to say whether the requirement that the mayor and council file their 460 forms electronically will translate into the information contained in them being available, henceforward, on the city’s website.
The resolution for the ordinance amendment adopted by the city council on December 14 states, “The purpose of this ordinance is to require the filing of campaign disclosure statements and statements of economic interest by elected officials, candidates, staff, consultants or committees to be completed electronically. The city council enacts this ordinance in accordance with the authority granted to cities by state law. This ordinance is intended to supplement, and not conflict with, the Political Reform Act.”
Recent storms have exacerbated vehicular and even pedestrian access issues in a portion of the former Chino Agricultural Preserve which in recent years has undergone aggressive development into mostly residential subdivisions.
Kimball Avenue, a major east-west arterial into the newly established neighborhoods, was blocked off and closed several months ago to allow for utility connections to serve areas eastward to be installed along with storm drains, road widening and traffic signalization and other improvements.
That work was to be completed sometime this month.
On December 14, with the advent of the late autumn/winter storm season and the deluge that materialized that day, progress on those projects was suspended, and in some respects, set back.
The December 14 deluge flooded out several key areas within the city and the former preserve. City public works employees shut Bickmore Avenue between Euclid Avenue and Meadowhouse Avenue. Another main east-west means of transit, Pine Avenue, was blocked off between El Prado Road to Mill Creek.
This created a logjam at various points, making it virtually impossible to get directly into, or out of, certain neighborhoods.
Some residents found a way to go around or defeat the barriers but risked incurring a ticket involving a hefty $540 fine for doing so. In some cases, children, the infirm and elderly or pets were left stranded, unaccompanied and uncared-for at their homes while their parents, adult children and/or caretakers or owners were away and unable to get home.
The circumstance was fraught with danger. Inadequate drainage created a circumstance in which cold water was massing on several streets, rising to a level above the street curbs and spreading into front, side and sometimes back yards. This made negotiating cars on those streets, if not impossible, difficult. Meanwhile, young children, many of them cut off from their parents, were in danger of drowning or being run over by vehicles trying to wend their way through the nearly impassible streets. The police, using the threat of citation, hindered many parents being able to get into place in time to ensure their children’s safety.
There were places within the former Chino Ag Preserve development where access was literally fully cut off.
With this week’s downpour, the scenario from December 14 to December 16 was repeated.
City officials have indicated that they are maneuvering now to limit the possibility that further heavy rain in January, February, March and April will turn out to be as problematic, and they have already begun to clear debris from storm drains to allow faster flow of water on Bickmore and Euclid avenues and eliminate sheet flow onto east-west streets with sandbagging.
It is hoped that Kimball Avenue will be reopened in full by the end of February. The project that resulted in its closure is to be completed by May. Until then, further rainstorms are likely to greatly inconvenience the 16,000 residents of the district that has risen up on the land of the former Chino Agricultural Preserve.
To the consternation of municipal governance observers in Southern California, Yucaipa city officials this month maintained their demonstrated pattern of utilizing the year-end holiday season to minimize residents’ resistance to or questioning of controversial or potentially problematic city action.
This year, on December 15, the Yucaipa planning commission approved an addition to an existing senior housing project on Third Street and signed off on an architectural review for a long-delayed project involving 22-single-family homes to be built by Pacific Horizons Homes that will be located west of Bryant Street and south of Sunnyside Drive.
The first project calls for 27 units to be built on what was variously represented as a .38-acre, a roughly .45- acre, a 1.03-acre or a 1.104-acre site, translating into a density of, variously once more, 71 units to the acre, 59 units to the acre or slightly over 26 units to the acre.
The second project is to offer an overall density of 3.87 units per acre, which is more in keeping with the intensity of land use traditionally associated with Yucaipa neighborhoods. Nevertheless, there were Yucaipa residents who told the Sentinel after the December 15 hearing that there were issues relating to the project and its placement, including impacts on adjacent and nearby properties that they wanted addressed before the project was given go-ahead. They said the city snuck the December consideration of the project past them.
According to Yucaipa Assistant Planner Christian Farmer, the city is providing Urban Housing Communities, LLC with a density bonus and granting it a conditional use permit to complete the final phase of what was originally permitted as an apartment complex limited to those 55 years of age or older, known as the Horizon Senior Housing Project on Third Street.
Farmer said the 77-unit senior housing project was first approved by the planning commission on June 17, 2009. The initial entitlement to build expired, however, and a new conditional permit was approved by the planning commission on December 3, 2014. The first phase of the project was completed, entailing the first 50 units and all of the complex’s resident amenities. Thereafter, the conditional use permit on the remaining 27 units expired.
The action before the planning commission on December 15 consisted of allowing Urban Housing Communities to pick up where the project had left off.
The project is to consist of a two-story, 32-foot tall building of approximately 20,000 square feet to accommodate 19,790 square feet of internal living space. That living space is to involve 23 one-bedroom units ranging from 665 square feet to 698 square feet along with four two-bedroom units of 1,026 square feet.
The city is granting Urban Housing Communities a housing density bonus consistent with state guidelines that allow for such incentives to encourage the construction of senior living units. In this case, Yucaipa has a minimum 750-square foot standard for one-bedroom units. That is being waived because Urban Housing Communities has agreed to reserve 30 percent of the units for low-income tenants and 15 percent of the units for very-low-income tenants.
At the meeting and in the documentation for the project, there was contradictory information with regard to the project’s parameters, which have led to some confusion as well as criticism with regard to the city rushing the project toward approval.
One item of confusion was the size of the project site. At one point, it was referenced as being .38 or an acre. There was a variant indication the project property was actually 1.104 acres. Another calculation was that the property being developed was .454 acres. Another held that the property in question totals 1.03 acres.
The parcel upon which the project is to be built is zoned multiple residential, which carries with it a requirement that each structure be built on a 7,200 square-foot minimum lot. As the parcel is at least .38 of an acre – that is 16,552.8 square feet – the project meets that criterion. Nevertheless, the eventual residents of the project will be crammed very closely together.
As the floor plans of the units total 19,790 square feet and the building consists of two stories, the building can cover an area of no less than 9,895 square feet, which is equal to .227 of an acre.
How large the lot is was not clear from the context of the documentation prepared for the meeting.
A reference to the project site said it was .38 acres. In his report on the project, Farmer stated “The building coverage is approximately 22 percent of the project site.” Elsewhere in the report, Farmer wrote, “the subject property is 5.02 acres in size.” There is no direct statement as to the precise building size or the lot size upon which the building is to be sited. One interpretation is that the entire Horizon Senior Housing Project, including all 77 residential quarters, the facility’s office, clubhouse and amenities, covers 5.02 acres. This would indicate the current project site is 1.104 acres. Another interpretation is that the 9,895-square foot footprint of the building is 22 percent of the project site, such that the lot being built upon is 44,977.27 square feet, roughly 1.032 acres.
Because of the holiday closure of city offices, Farmer is not available to make a clarification.
It is because municipal offices shut for the Christmas break that those monitoring city operations feel that placing issues where the public at large may have questions or objections to what is being proposed and approved is ill-advised.
It is not just city officials in San Bernardino County, Southern California and the Golden State but rather ones throughout the United States who have developed a time-tested stratagem of concealing from the public action that may prove controversial, problematic or embarrassing. That approach consists of hiding the action in plain sight by scheduling such matters for discussion during meetings falling right before or after major holidays, the classic manifestations of which are those just prior to Christmas or between Christmas and New Year’s Day.
Yucaipa has not been shy about using that legerdemain.
In December 2019, the Yucaipa City Council sold to an unspecified entity one week before Christmas and four days before the onset of Hanukkah 1.67 acres of public land originally donated to the Yucaipa community by Ruben and Lester Finkelstein with a deed restriction that it be utilized for public purposes. Though the Finkelstein brothers –the proprietors of the variegated Lester Ruben Corporations No. 1, No. 2, No. 3, the Finkelstein Foundry Supply Company, the Finkelstein Supply Company in Los Angeles and the L and R Cattle Company in Yucaipa – made the donation of the property in question, much of which was used for the creation of Crafton Hills College, prior to the incorporation of Yucaipa as a city, the property ultimately came under the ownership of the city with the original deed restrictions.
Bridge Development Partners, the real party in interest in the lawsuit brought by Upland Community First against the City of Upland challenging the April 2020 approval of the one-fifth of a million square foot warehouse/distribution center that was to be developed for Amazon, has appealed Judge David Cohn’s ruling upholding that challenge.
Upland Community First, the citizens interest group which raised multiple environmental issues in objecting to the project and prevailed on the single point of the inadequate assessment of the greenhouse gasses to be generated at the facility once it is inhabited by its presumed tenant, indicated it will file a cross appeal to match and counter Bridge Development’s objection to the court ruling. That cross appeal will seek to persuade the appellate court that not only should Judge Cohn’s finding be sustained with regard to inadequate quantification and mitigation for the excessive greenhouse gas emissions that will come about as a consequence of the truck traffic-intensive operations that will become a daily reality in western Upland if the on-line retail behemoth locates a distributorship there, but assert that Judge Cohn erred in not recognizing that the city failed to adequately consider other impacts from the project that require further mitigation.
On April 1, 2020, the Upland City Council, over the protests of 22 residents who went on record as being opposed to the warehouse/distribution center project during a remotely held city council meeting to consider the project, gave 4-to-1 approval of Bridge Development Partners’ request to construct a single 201,096-square foot facility involving 25 dock-high loading bays for 18-wheeler trucks, another 32 bays for delivery vans and trucks, along with 1,438 parking spaces around the building. The facility was slated for a 50-acre site in Upland north of Foothill Boulevard slightly east of Central Avenue and south of Cable Airport.
In approving the project proposal, the city council accepted the terms of a $17 million development agreement offered by Bridge Development Partners. Some city residents saw that as a show of generosity on Bridge Development’s part. Others, taking stock of the consideration that the city would realize no sales tax revenue from the project because of Amazon’s non-California-based internet sales model, felt that the deal was a bad one since the impacts of the Amazon operation, which would remain in place for at least 50 years per the ground lease Bridge Development had for the 50-acre site and perhaps a full century if the lease was renewed, would far exceed $17 million when wear and tear on the city’s roads and other infrastructure demands of the project were considered.
From the time the project had been proposed, it was steeped in controversy. It was originally previewed to the community by Bridge Development’s corporate representatives in June 2019 as three buildings comprising 977,000 square feet.
Over the next several months, as objections to the scope of the proposal manifested, the tentative site plan was modified several times until in October 2019, a revamped conception of the project was presented, one that was reduced to a single structure of 276,250 square feet. When the environmental certification documentation for the project was posted on December 16, 2019, it came in the form of a mitigated negative declaration. In that documentation, the project was shown as a having been reduced once more to a 201,096-square-foot distribution center, with 1,438 parking spaces contained on the project grounds.
The city allowed the project to proceed toward approval without being subject to a comprehensive environmental impact report, which many Upland residents believed should have been carried out for a project of such size, intensity and complexity. Rather, the city elected to use a mitigated negative declaration to complete the environmental review process.
An environmental impact report is an involved study of the project site, the project proposal, the potential and actual impacts the project will have on the site and surrounding area in terms of all conceivable issues, including land use, water use, air quality, potential contamination, noise, traffic, and biological and cultural resources. It specifies in detail what measures can, will and must be carried out to offset those impacts. A mitigated negative declaration is a far less exacting size-up of the impacts of a project, by which the panel entrusted with the city’s ultimate land use authority, in this case the city council, issues a declaration that all adverse environmental impacts from the project will be mitigated, or offset, by the conditions of approval of the project imposed upon the developer.
A cross section of the city’s residents disputed the city council’s declaration that all impacts from the project had been adequately mitigated, based both on the magnitude of the project and the consideration that the city council lacked land use and environmental expertise. There were questions as well as to whether the zoning at the project site would allow a distribution facility to be established there.
Suspicion remained that the project would be subject to substantial expansion, without any further environmental analysis, perhaps to as large as the 977,000 square feet originally proposed, since 1,438 parking spaces is far in excess of what would normally be needed for a 201,096-square foot warehouse.
On February 12, 2020, the Upland Planning Commission voted 3-to-2 to recommend that the city council not approve project. Two weeks later, on February 26, 2020, the commission met again, and in a move unprecedented in Upland’s history, reversed itself, voting 4-to-2 to recommend that the city council approve the project, with two of the members who had voted against the project on February 12, Linden Brouse and Gary Schwary, changing their votes, while a commissioner not present previously, Alexander Novikov, registered his opposition to the undertaking.
Less than five weeks later, the city council recorded its 4-to-1 vote to approve the project.
Thereafter, a contingent of Upland citizens banded together, taking on the name Upland Community First. The group’s members retained attorney Cory Briggs, who then filed a petition for a writ of mandate, seeking from the court an order that the city revisit the environmental review process for the project, make a determination that the mitigated negative declaration was inadequate and require that a full-blown environmental impact report for the project be carried out before the project is allowed to proceed.
As a consequence of the Upland Community First legal filing, any action toward the completion of the project, including site grading, was suspended.
In the meantime, Bridge Development Partners seemingly recruited Bill Velto, who voted in April 2020 as a member of the city council to approve the project and who in November 2020 was elected Upland mayor, to serve as its agent in approaching members of Upland Community First in an effort to get that group to end its challenge of the project approval. To that end, Velto indicated via text messages that Bridge Development Partners had expressed a willingness to more than double the $17 million in project impact offsets the company had agreed to pay in the development agreement for the project approved in April 2020 to $40 million. That offer was conditional upon Upland Community First dropping its demand for a comprehensive environmental impact report and accepting an environmental review that would allow the project to proceed, without any of the changes that would typically be required by an environmental impact report. Upland Community First spurned those offers, insisting that the matter be resolved though the writ of mandate proceeding.
While ultimately, Judge Cohn, who considered the petition for a writ of mandate, entered a finding that the mitigated negative declaration the city council made to clear the way for the project to proceed was inadequate, he did so on relatively narrow grounds. His order was that the mitigated negative declaration with regard to the emission of greenhouse gasses had to be done over, but his order did not include a requirement that a full-blown environmental impact report had to be completed. The city could rather utilize the mitigated negative declaration process once more, as long as it did a more thorough assessment and cataloging of mitigations, he ruled.
Judge Cohn’s findings let stand the other portions of the environmental certification that were contained in the original mitigated negative declaration, and he sided with the city in rejecting Upland Community First’s contention that the mitigated negative declaration:
* underestimated traffic counts anticipated from the distribution center;
* misdefined the project as a high-cube parcel hub warehouse instead of classifying it as a fulfillment center;
* failed to recognize the project was in conflict with Upland’s general plan and zoning code;
* mistakenly allowed a distribution center to be built in an area zoned for commercial/industrial mixed-use;
* failed to recognize that the project was an impermissible use where it was located;
* inadequately defined the project;
* was improperly ratified during a meeting which was not publicly held but rather conducted remotely and electronically and therefore did not give Upland residents adequate opportunity to provide input with regard to the project.
Judge Cohn ruled that any conclusions Upland Community First’s members may have drawn based on the number of parking spaces included in the project plans were speculative.
The victory Upland Community First and its attorney, Briggs, notched proceeded from Judge Cohn’s acceptance of their assertion that the city had wrongfully used a greenhouse gas threshold of ten thousand metric tons of carbon dioxide equivalent in calculating emissions from the distribution facility on a yearly basis as a maximum allowable limit. Since the city had sought to use an inoperative maximum threshold for emissions, he said, the mitigated negative declaration was flawed, and had to be done over.
Greenhouse gasses are those such as carbon dioxide and chlorofluorocarbons, which create a “greenhouse” effect, that is, causing the atmosphere to increase in temperature through the constant absorption of infrared radiation.
“The failure to provide substantial evidence to justify the single quantitative method used as the greenhouse gas threshold of significance constitutes a prejudicial abuse of discretion,” Judge Cohn ruled. “The public and decision-makers have not been provided sufficient information necessary to understand the threshold or the data used in the analysis establishing the threshold and reason for the significant change in baseline emissions in the subsequent greenhouse gas analysis. Accordingly, the city’s approval of the mitigated negative declaration is set aside.”
Upon the city revisiting the greenhouse gasses analysis for the warehouse project, Judge Cohn said, it would have the discretion to choose an appropriate “threshold of significance” and to determine under that standard whether an environmental impact report is required, or it might reconduct a more comprehensive study and analysis and redraft the mitigated negative declaration accordingly, one that would presumably include a description of how the operations at the distribution facility would need to be altered to mitigate or offset the impacts/damages from the generation of greenhouse gasses there.
The defendant in the suit was the city. Bridge Development Partners had agreed to indemnify the city over any litigation it became involved in as a consequence of the project approval. The city, represented by Ginetta Giovinco, appeared purposed to comply with Judge Cohn’s order and intensify the environmental certification process and, ultimately, recertify the redrafted mitigated negative declaration.
It appears that Bridge Development Partners was dissatisfied with that approach, believing the city was not being aggressive enough in seeking to be vindicated in its April 2020 decision. In addition, Bridge Development Partners anticipates that Upland Community First would ultimately legally challenge the redraft of the mitigated negative declaration once it was completed, and it is no longer interested in playing patty cake with those who are opposed to the project. By issuing the appeal, Bridge Development Partners removes the matter from Judge Cohn’s courtroom to the California State Court of Appeal, Fourth Appellate District Division Two in Riverside, which has reversed Judge Cohn’s rulings on four separate occasions in the past.
Meanwhile, Upland Community First and Briggs, confident that the challenge of the greenhouse gas assessment as it was made in the original mitigated negative declaration will be upheld in Riverside, believe the appellate court can be convinced that Judge Cohn was not aggressive enough in holding the city to account for the inadequate impact offsets related to other issues laid out in the mitigated negative declaration for the project accepted in April 2020. Their intention is to convince the appellate court that the mitigated negative declaration format for addressing a project such as the Amazon warehouse/distribution center is inadequate to the task of assessing let alone redressing its impacts, and that more properly, an environmental impact study at the least should be done, and preferably, a comprehensive environmental impact report should be completed before the project is given go-ahead.