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Sentinel 04-22-22

By Mark Gutglueck
The U.S. Department of Justice last week agreed to return $1,062,176.36 in revenue from several licensed marijuana-related commercial business operating in San Bernardino County seized from the Empyreal Logistics armored transport company in what federal officials now concede was a “rogue” operation run out of the San Bernardino County Sheriff’s Department.
Despite federal law enforcement officials considering marijuana an illegal Schedule I drug indistinguishable from heroin and cocaine and the willingness of federal prosecutors to use civil forfeiture statutes to confiscate the proceeds from the sale of marijuana in states that have legalized its use for medicinal or intoxicative purposes, the action and statements of San Bernardino County Deputy Sheriff Jonathan Franco and another publicly unidentified deputy caught on an audio recording so unnerved federal prosecutors that they have elected against participating with the sheriff’s department in a cooperative effort to dissuade cannabis entrepreneurs from plying their trade in San Bernardino County.
Previously, the U.S. Attorney’s Office, the FBI, the Drug Enforcement Agency and the San Bernardino County Sheriff’s Department have cooperated in applying the U.S. Department of Justice’s authority to confiscate money generated by the drug trade. According to the U.S. Justice Department, through forfeiture statues that allow the proceeds from illegal activity to be seized by the government by means of the equitable sharing program, the San Bernardino County Sheriff’s Department’s participation in the Inland Regional Narcotics Enforcement Team, which is dedicated to stemming the trafficking of drugs in Southern California, enables it to receive up to 80 percent of the proceeds recovered from civil forfeitures. The Inland Regional Narcotics Enforcement Team, which is known by its acronym IRNET, has received slightly less than $18 million in equitable sharing funds since 2016.
The sheriff’s department had sought to inveigle the U.S. Justice Department into using the seizure authority under the auspices of the U.S. Department of Justice’s equitable sharing program relating to civil forfeitures against Empyreal Logistics. Based upon a multitude of factors, administrators within the U.S. Justice Department in Riverside and Los Angeles concluded that it would be best to distance itself from the San Bernardino County Sheriff’s Department and IRNET, which is spearheaded by the sheriff’s department and involves or coordinates with several federal and state investigative agencies including the Riverside County Sheriff’s Department, the Ontario Police Department, the Riverside Police Department, the Bureau of Narcotic Enforcement, the federal Drug Enforcement Agency and the FBI.
Federal prosecutors grew concerned that the motives of elements within the sheriff’s department in making the monetary seizures were tainted, and might compromise the reputation and effectiveness of other anti-drug task forces with which IRNET networks, such as Southern California Drug Task Force, also known as HIDTA Group 50; the California Multi-Jurisdiction Methamphetamine Enforcement Team, known by its acronym CALMMET; the Regional Methamphetamine Task Force, known by its acronym RMTF; and a Drug Enforcement Agency task force based in Riverside.
The misadventure involving the $1,062,176.36 seized began on November 16, 2021 when Deputy Franco made a freeway traffic stop of an Empyreal Logistics vehicle on the I-15 Freeway near Barstow for what Franco said was “following too closely behind a tractor-trailer.” Empyreal Logistics carries quantities of money for its clients, usually between a place of business involved in cash transactions and banks. According to Franco, when he learned through his exchange with the operator of the armored car that the vehicle was carrying the proceeds from cannabis-related commercial enterprises, he initiated action that led to the department’s seizure of the $712,176.36 that was at that point being transported. The vehicle’s driver used his company-issued cell phone to put Franco in communication with Empyreal Logistics corporate officials who identified the businesses the company was transporting money for and those companies’ state licensure and business permits, together with global position data for the vehicle that would allow the deputies to verify the legitimacy of the operation. That telephonic exchange, however, did not dissuade Franco and his department colleagues from proceeding with the seizure of the money. Based upon the exchange the deputies had with the driver, they obtained a warrant to confiscate the money.
Twenty-three days later, on December 9, 2021, Franco made another stop of the same vehicle while it was traveling on the freeway, this time, the deputy said, because the driver had “slightly exceeded the speed limit and prematurely activated his turn signal.”
“You don’t remember me, do you?” Franco said, in greeting the driver on December 9. “I remember you.”
A crew of other deputies accompanied Franco on that date. One of them told the driver they were going to take the money he was carrying and that they had a right to it because it was the ill-gotten gains of the drug trade. Inside the armored van, the deputies tallied the money, which totaled approximately $350,000. While the money was being counted, one of the deputies remarked, rather dejectedly, “This is, uh, more small,” a reference to the amount of money on board the vehicle being roughly half of what had been seized on November 16. Upon completing the counting of the money, one of the deputies said he had believed the haul would be “a million or two.” One of his colleagues replied, “At least we got over a million,” referring to the combined totals of the November 16 and December 9 traffic stops.
The deputies made an effort to obscure what they were doing, covering the vehicle’s video cameras, and confiscating the driver’s personal and company phone/communication devices.
Unbeknownst to the deputies, there was a running audio recording system inside the vehicle.
There is evidence to suggest that the December 9 traffic stop was planned ahead of time. That clashes with Franco’s report. No warrant was obtained for the December 9 seizure.
Initially, the FBI and the U.S. Justice Department expressed enthusiasm about engaging in an equitable sharing arrangement with the sheriff’s department for the civil forfeiture of the money taken from Empyreal.
On January 6, 2022 the sheriff’s department made a third traffic stop of an Empyreal armored vehicle. It turned out, however, that the money carried that time consisted of rolled coins from a non-cannabis-related business. That money, a far lesser amount than was present at the previous two traffic stops, was not seized. During the January 6 stop, one of the deputies acknowledged to the driver that Empyreal was being targeted for enforcement action by the sheriff’s department for “political” reasons.
On January 14, 2022 Empyreal, represented by the Arlington, Virginia-based Institute for Justice, sued the U.S. Government; the U.S. Department of Justice; Attorney General Merrick Garland; the FBI; FBI Director Christopher Wray; Kristi Koons Johnson, the special agent in charge of the Los Angeles Office of the FBI; Anne Milgram, the administrator of the Drug Enforcement Agency; and San Bernardino County Sheriff Shannon Dicus. The suit was filed in U.S. District Court in Riverside, and sought a declaration from the court that Dicus and his department and the federal defendants had had acted beyond the scope of their power and had violated Empyreal’s 14th Amendment rights and to prevent the defendants from doing the same in the future as well as to have the sheriff’s department and the federal defendants cover Empyreal’s costs arising from the seizures, which include the reimbursements they made to their clients of the money seized and the costs Empyreal had sustained as a result of the seizures and filing suit. The case was assigned to Judge John W. Holcomb. On March 16, the Institute For Justice and the Roseville-based law firm of Koeller, Nebeker, Carlson & Haluck filed a first amended complaint, redrafting the allegations and pleadings in the January 11 suit.
In defending the action of his department, Sheriff Dicus asserted “80 percent of marijuana at dispensaries was grown illegally. I am confident when these claims make it to court, they will collide with the facts. My deputies are professional, and I am confident we will prevail.”
Pressure mounted on the FBI in the aftermath of the January 14 legal filing when, according to an individual knowledgeable about the Los Angeles FBI office’s inner workings, someone “dimed out” the San Bernardino County Sheriff’s Department, that is, informed agents about certain irregularities with regard to the department’s actions pertaining to cannabis-related businesses in San Bernardino County. Those irregularities involve a protection racket that has allowed marijuana entrepreneurs connected to several of the county’s politicians – including ones based in Adelanto and Needles – to function in the open while the sheriff’s department has targeted its competitors, among which are Empyreal’s clients. The FBI has information suggesting the sheriff’s department took action against Empyreal and Empyreal’s clients because those clients were “interfering” with businesses kicking back a percentage of its marijuana sales proceeds to politicians and public officials connected to the sheriff’s department. FBI agents were also confronted with demonstrably false statements from members of the San Bernardino County Sheriff’s Department, members of which did not realize Empyreal had audio recordings of deputies’ verbal exchanges while they were in and around the armored vehicles the department had stopped.
The U.S. Department of Justice on April 13 said it will return approximately $1.1 million in money law enforcement officers had seized from Empyreal.
As a result of the settlement with the U.S. Department of Justice, Empyreal Logistics has agreed to dismiss the defendants from its federal lawsuit. Empyreal’s legal claims in that action against the San Bernardino County Sheriff’s Department, which seeks the discontinuation of what the Institute for Justice and the law firm of Koeller, Nebeker, Carlson & Haluck characterize as “highway robbery” targeting Empyreal, remain before the court.

The City of Fontana has reached a settlement on the lawsuit filed against it last summer by the California Attorney General’s Office which alleged municipal officials had violated the California Environmental Quality Act with their approval of a nearly 206,000-square-foot warehouse adjacent to Jurupa Hills High School.
Local environmental activists said they hoped conditions imposed upon the city as part of the settlement will reverse the city’s longstanding trend of unbridled logistics-related development in the 42.4-square mile city.
Since Acquanetta Warren was elevated to the position of mayor in 2010, Fontana has embraced warehouse development. Citing Fontana’s location along the 10, 210 and 215 freeways and the Union Pacific/Santa Fe/Burlington Northern railroad line and its general position within Southern California, which involves large port facilities in San Pedro and Long Beach that land massive amounts of merchandise from manufacturers in Asia brought across the Pacific Ocean by ship, she says her city is a logical host for warehouses and distribution centers. She has argued that given the largely blue collar populace of Fontana and the consideration that approaching 30 percent of the parents of children attending Fontana schools either do not speak, or lack proficiency in, the English language, the best that can be done for a significant percentage of those who graduate from or drop out of Fontana’s high schools is to provide them with jobs such as those available in warehouses, which do not demand skilled laborers. Between 2016 and 2021, Fontana had approved more than 30 warehouses totaling approximately 16 million square feet in southern Fontana alone.
An increasingly vocal element of the community has decried the relatively poor pay and benefits provided to those who work in the logistics facilities, the large diesel-powered semi-trucks that are part of those operations with their unhealthy exhaust emissions, together with the bane of traffic gridlock they create. As more and more land locally is being consumed by such uses, some began years ago to second guess the wisdom of allotting so much property in the city for that type of development and question whether warehouses constitute the highest and best use of available land. In the face of that, Warren maintained that the building of warehouses constitutes easy “economic advancement” for the Fontana community, which allows those with capital to acquire or tie up property and quickly convert the land into warehouses consisting of tilt-up buildings, thereby generating fast money and investment in the local economy. As a consequence, Warren is referred to, derisively by her detractors and admiringly by her supporters, as Warehouse Warren.
On April 20, 2021, the city took up another in a string of such development proposals, one offered by Michael Weber and his Irvine-based company, Duke Realty, to consolidate seven parcels into a single parcel of approximately 8.61 acres at the southwest corner of Slover Avenue and Oleander Avenue, upon which a proposed 205,949-square foot warehouse featuring 22 truck docks, 40 truck parking spaces, and 95 standard parking spaces was to be built. The Fontana City Council entrusted to the city’s planning commission land use authority with regard to the project, and the planning commission approved it.
That approval included passage of the project’s design review and its tentative parcel map.
In providing the project with its environmental certification, the planning commission signed off on a mitigated negative declaration, without it being subject to a comprehensive environmental impact report, despite the size, intensity and complexity of the project.
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 either the planning commission or 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.
Elizabeth Sena, a Fontana resident, appealed the project approval to the Fontana City Council.
According to Sena, the proliferation of warehouses in Fontana generally and the Weber/Duke Realty warehouse project specifically are contrary to the interests of the Fontana community. In a multitude of political and geographical contexts, according to Sena, there were “racial and ethnic disparities” in terms of those who bear the brunt of the negative consequences of warehouse development. She maintained that elsewhere, as is the case in Fontana, African-Americans, Hispanics and Asians more than the white population have the close proximity of warehouses, including their negative health consequences, imposed upon them by virtue of those onerous uses being located in or proximate to their residential neighborhoods.
In her appeal of the Weber/Duke Realty warehouse proposal, Sena cited “blatant disregard for the safety of our community” and “environmental redlining” that was “harming our kids.”
Warren responded, asserting “I think we have taken every effort legally to keep people safe.”
Mayor Warren and her three allies on the council, John Roberts, Phil Cothran, Jr. and Peter Garcia, sidestepped the opposition that Sena raised, and the voices of protest that joined with hers, consisting of Carlos Tinoc, Tina Tinoc, Sunny Renteria, Julian Rambila, Julia Avina, Gabriela Mendez, Brian Culdy, Rosa Culdy, Yolanda Rivera, Jasmine Cunningham, Veronica Perez, Eddie Lopez, Ben Vasquez, Paul Salazar, Debrah Seldon, Cynthia Gonzalez, Alejandra Collazo, Andrew Noriega, Annelle Torres, Rebecca Gonzalez and Jose Valdez
The council, in a 4-to-1 vote, with Warren, Roberts, Cothran and Garcia prevailing and Councilman Jesse Sandoval dissenting, on June 22, 2021 denied the appeal, upholding the planning commission’s decision to let Weber/Duke Realty proceed with the project.
On July 23, 2021, California Attorney General Robert Bonta filed a lawsuit against the City of Fontana, challenging its approval of the project. In the lawsuit, Attorney General Bonta argued that the city’s limited environmental review of the project and its failure to appropriately analyze, disclose, and mitigate the project’s environmental impacts violated the California Environmental Quality Act. The Sierra Club separately filed a lawsuit against the project.
“Under the California Environmental Quality Act, the City of Fontana is required to implement all feasible mitigation measures to reduce harmful air pollution and other significant environmental impacts of the Slover and Oleander Warehouse project,” Bonta said. “Plain and simple: Everyone has the right to breathe clean air where they live and where they work. I am committed to standing up for communities who live at the intersection of poverty and pollution. Fontana residents shouldn’t have to choose between economic development and clean air. They deserve both. Unfortunately, the City of Fontana cut corners when it approved the Slover and Oleander warehouse project. We’re going to court to compel the city to go back and take a hard look at the environmental impacts of this project – and do all it can to mitigate the potential harms to local residents and workers – before moving forward.”
According to Bonta, “The Slover and Oleander warehouse project will be constructed in a low-income south Fontana neighborhood that suffers from some of the highest pollution levels in all of California. Over 20 warehouses have already been built within a mile of the project site, in an area that encompasses two public high schools and serves as home to hundreds of Californians. Collectively, these warehouses generate thousands of daily heavy-duty diesel truck trips. As a result, local residents and workers suffer from some of the highest exposures statewide to fine particulate matter, which are inhalable microscopic particles that travel deep into human lungs and are linked to increased risk of premature death, cardiovascular disease, lung cancer, and asthma attacks. They are also heavily exposed to ozone and toxic chemicals that can cause a wide array of other concerning health problems.”
In the aftermath of the California Attorney General’s Office’s civil action, Fontana and Warren remained defiant, asserting that the policy of pursuing economic rejuvenation through warehouse development was sound socially, financially and environmentally.
On July 6, 2021, the Fontana Planning Commission granted Manhattan-Beach-based 9th Street Partners permission to proceed with a warehouse building totaling 92,433 square feet to be developed on a 4.07-acre site located on the northwest corner of Valley Boulevard and Catawba Avenue at 15894 Valley Boulevard. Janet Meza, who lives with her family in a home adjacent to the Valley Boulevard Catawba Avenue project site, and Sena, along with the Center for Community Action and Environmental Justice in conjunction with the South Fontana Concerned Citizens Coalition, filed an appeal of the planning commission’s approval of the project. That appeal stated that an environmental impact report was not completed for the project and the California Environmental Quality Act exemption the city used does not apply to it. The appeal asserted that the air pollution generated by the project would be particularly harmful to children living and growing up in proximity to the warehouse.
On September 28, the Fontana City Council upheld the planning commission and denied the appeal.
Posturing by the city in which officials held that the effort to generate economic development was not only a responsible but prudent land use principle continued while pretrial legal sparring was ongoing between the attorney general’s office and lawyers for the Sierra Club on the plaintiffs’ side and Fontana City Attorney Ruben Duran representing the council and Warren over the next several months. Meanwhile, Warren and the three members of her ruling coalition, councilmen Roberts, Cothran and Garcia, were beset with criticism for their reception of substantial political donations from proponents of warehouse projects, those being either the owners of the property upon which the warehouses were to be or have been built and the development companies constructing them. A growing number of residents suggested the majority of the city’s leadership allowed its judgment to be influenced by money provided to it, such that the welfare of Fontana’s elected officials’ constituents was a secondary consideration.
On Monday, April 18, Bonta announced what he referred to as “an innovative settlement” with the City of Fontana which he said will serve “to protect vulnerable communities  from pollution associated with industrial development where they live, work, and go to school. Today’s settlement, once entered by the court, will resolve allegations that the City of Fontana violated the California Environmental Quality Act in approving the Slover and Oleander warehouse project in south Fontana.”
Under the terms of the settlement, Duke Realty will be required to adopt substantial mitigation measures to minimize the impacts of the project to the surrounding community. Additionally, Bonta disclosed, the Fontana City Council’s adoption last week of an ordinance setting stringent environmental standards for all future warehouse development in Fontana was part of the settlement.
The settlement requires the City of Fontana to adopt what Bonta characterized as “the most stringent warehouse ordinance in the state,” which embodies dozens of newly-imposed requirements for warehouse projects within Fontana City Limits, extending to site designs to keep trucks away from sensitive sites such as schools, hospitals, and day care facilities, the promotion of zero-emission vehicles for on-site operations, landscaped buffers, installation of solar panels to meet 100 percent of energy needs for larger warehouse projects, and use of environmentally friendly building materials.
The settlement also requires the developer, Duke Realty, to mitigate the Slover and Oleander warehouse project’s environmental impacts on the surrounding community. Mitigation measures include design changes and other protections for nearby residents, as well as reduced emissions from equipment used during construction and operation. Duke Realty will also establish a $210,000 community benefit fund that will be used to enhance landscaping buffers at Jurupa Hills High School, which abuts the project, and to purchase and distribute a five-year supply of high-quality air filters to up to 1,750 households in the surrounding community.
Simultaneously, the South Coast Air Quality Management District announced a revamped process for analyzing cumulative air quality impacts from such projects. The attorney general’s lawsuit challenged the City of Fontana’s reliance on the South Coast Air Quality Management District’s existing guidance in its approval of the Slover and Oleander warehouse project. Going forward, the South Coast Air Quality Management District is to consider existing burdens associated with nearby pollution sources and, where warranted, quantify for the first time cumulative air quality impacts and the effects on human health. This new standard will involve the South Coast Air Quality Management District in considering the impacts of concentrating polluting land uses, like warehouse projects, in disadvantaged areas, thereby encouraging local governments to site future projects in areas where they will have the least impact on human health.
“For years, warehouse development in Fontana went unchecked, and it’s our most vulnerable communities that have paid the price,” said Bonta. “Today’s settlement demonstrates how innovative solutions can be used to address environmental injustices, without hindering development. When we build, we must build responsibly. Most importantly, the impacts of this settlement are not limited to mitigating the impacts of a single project. As a result of our lawsuit, the City of Fontana has adopted the most stringent environmental standards in California for new warehouse projects. This ordinance should serve as a model for other local governments across the state to build upon. We must ensure that future development does not repeat past mistakes.”
“For over a decade, Sierra Club volunteers have been challenging warehouse developments throughout San Bernardino and Riverside Counties, resulting in mitigations and community benefits, including three previous lawsuits in Fontana,” said Mary Ann Ruiz, chairwoman of the Sierra Club San Gorgonio Chapter. “The difference this time was the voice of the community, led by Liz Sena and the South Fontana Concerned Citizens Coalition, gaining the attention of Attorney General Bonta. We appreciate the partnership and leadership of the AG’s office in reaching this agreement to improve the project and set a standard for all future projects in Fontana.”
“For years, Fontana residents have voiced their concerns regarding the rise of air pollution associated with the increase of warehouse development but have been disregarded,” said Sena, a south Fontana resident and founder of the South Fontana Concerned Citizens Coalition. “And for this reason, the South Fontana Concerned Citizens Coalition recognizes Attorney General Bonta’s leadership and partnership in filing a lawsuit against the City of Fontana. The settlement is the first of its kind, and will help protect us by minimizing the impact of future warehouses surrounding our community, where our families live, learn, and work.”
It is not clear whether the terms of the settlement apply to the 9th Street Partners warehouse project at the northwest corner of Valley Boulevard and Catawba Avenue, as it was approved by the planning commission and upheld on an appeal to the city council prior to the settlement being reached.
-Mark Gutglueck

A ruling by California’s Second District Court of Appeal with regard to the Department of Motor Vehicle’s process for adjudicating the appeals of license revocations of those arrested but not yet convicted of driving while intoxicated has thrown open the door for redressing the way in which many municipalities in San Bernardino County abridge the rights of those accused of various code enforcement violations.
Questions have long existed about the fundamental fairness and constitutionality of the way in which local governments accuse residents and businesses and cite them for various infractions or violations of city codes and thereafter set about verifying those accusations, determining the guilt or responsibility of those cited and then subject the accused to demands for an abatement and punishment including fines and even confiscation of property as a consequence of the government’s enforcement action.
In the vast majority of cases, those cited and accused simply comply with the imposition of the governmental authority applied to them. In some cases, citizens will contest the matters in the forum provided by the government, wherein again, the vast majority of those cases are adjudicated in favor of the government. In the majority of those cases, the residents relent, accepting the outcomes of such adjudication processes. In an extremely slender number of those cases, however, a very few intrepid residents willing to go to the bother and expense of doing so have removed the matter to a higher court, generally speaking a federal court, in which the constitutionality of the code enforcement process is made an issue through the allegation that the citizen’s Fourth Amendment rights to freedom from unreasonable seizures or enforcement, Fifth Amendment right to due process and Fourteenth Amendment right to due process and equal protection have been violated. In a substantial number of those cases, federal courts have moved toward a determination that the code enforcement regimes that cities use are unconstitutional. This has uniformly resulted in cities then abruptly moving to settle those matters outside of court, in virtually every case with a large cash payout, to prevent the federal court from entering a judgment that would set a precedent by which municipal code enforcement processes in general could be challenged and overturned.
The constitutional flaw in the processes municipalities use consists of the manner in which cities seek to cut corners, take shortcuts and reduce their costs with regard to prosecuting those accused of violating city codes. In essence, the cities employ, either directly or under contract, an individual who serves as a code compliance officer, who is authorized to represent the city in making its case against the alleged code violator and who simultaneously serves as the hearing officer on the matter, which essentially melds the functions of prosecutor and judge into one individual.
A case in point which illustrates the thin constitutional ice many local governments are skating on is that of the code enforcement case of the City of Hesperia vs. Esther Duran and Janet Duran, which subsequently turned into the federal case of Esther Duran and Janet Duran vs. the City of Hesperia.
In 2004 Janet Duran, an ambulance driver, took up the cause of doomed horses, including wild mustangs run to ground by cowboys in Nevada and Arizona and ones being sold by their owners at auction for as little as $5, $10, or $15 a head, ostensibly to buyers interested in using them for dogfood. She persuaded her mother, Esther Duran, to shelter some of those horses on property the elder Duran owned on Redwood Avenue in Hesperia.
The Redwood property prior to city incorporation was zoned for agricultural use. The post-incorporation zoning was agricultural-residential and the Durans were permitted under the city’s code to have up to six horses on the property per its acreage.
On January 13, 2010, a team of Hesperia city employees that included two code enforcement officers, four armed sheriff’s department deputies in flak jackets and two animal control officers descended on the Duran property. One of the code enforcement officers served Esther Duran with papers and the team then seized three horses and five dogs, one of which was a stray whose owner the Durans were seeking to locate. Both Esther and Janet were cited and slapped with a total of $129,000 in fees, which upon the city’s processing protocol were ratcheted up into liens against the property. Those liens resulted in Esther Duran’s mortgage increasing from $1,400 to $4,700 per month.
Unwilling to take the city’s action lying down, the Durans hired Upland-based attorney Louis Fazzi to represent them.
Fazzi brought several principles to bear which the city had in the past routinely overlooked in its enforcement efforts, including compliance with the city’s own codes, which actually allowed for the presence of up to three more horses than the Durans had on the property on January 13, 2010 and up to five dogs, as well as the right to due process. The city’s response was to seek a series of delays, which had the effect of increasing the Durans’ legal costs while the underlying issue – the return of their animals – remained unresolved.
Despite the cost, the Durans did not simply duck out of the fight. Fazzi persisted on their behalf, successfully removing the matter to federal court. Still, the city told the court the Durans were maintaining a substandard property and that the animals for that reason should not be returned to them. Fazzi maintained that the property was up to code and in compliance in all regards. In March 2012, a court-appointed independent inspector went over the Redwood property with a fine-tooth comb, concluding the property was indeed up to code.
In April 2012, U.S. District Court Judge John E. McDermott ruled that the city’s action against the Durans was improper and that their animals would have to be returned to them. Fazzi immediately brought a motion to have McDermott consider whether the entire process the Durans had been subjected to was unconstitutional.
While McDermott’s ruling was pending, the city offered the Durans a $200,000 settlement. The tendering of that offer, and the Durans’ acceptance of it, put the matter to rest, preventing a potentially precedent-setting ruling that would prohibit the city from continuing to employ the same tactics against other city residents.
Moreover, had Judge McDermott entered a judgment against Hesperia in the Durans’ case, that ruling could have been used by virtually any citizen within the jurisdiction of the United States District Court for the Central District of California, including all of San Bernardino County, to contest the authority being used by cities in carrying out their code enforcement function.
Since no precedent was set, cities have continued to use their authority in ways that Constitutional law experts say is unlawful.
Now, however, in a California court rather than a federal one, a case has progressed to the point where a decision rendered carries with it, unless it is appealed to the California Supreme Court and reversed, of preventing cities or any governmental entities in California from issuing administrative citations, as is the case with code enforcement actions, and then subjecting the individual cited to a processing and adjudication of that citation in front of a hearing officer or judge who is one and the same as the individual processing or prosecuting the case.
Upon a driver in California being arrested for driving while intoxicated, the Department of Motor Vehicles upon being notified of the arrest suspends the arrestee’s license. If the person arrested chooses to do so, he/she can within ten days request a hearing from the Department of Motor Vehicles to contest the suspension. The Department of Motor Vehicles in such cases makes a presumption that the suspension is justified on the basis of the arrest and, an examination of Department of Motor Vehicles records shows, rejects well in excess of 95 percent of the suspension challenges. In virtually all of the hearings for those challenges, the Department of Motor Vehicles utilizes a department employee to simultaneously act as the department’s “prosecutor” while conducting the suspension hearing as the “judge.”
In 2014 the California Driving Under the Influence Lawyers Association, led by Riverside-based attorney Stephen R. Mandell, brought a taxpayer action against the California Department of Motor Vehicles and Department of Motor Vehicles Director Jean Shiomoto, alleging the hearings the department holds to determine whether automatic suspension of a driver’s license is warranted do not provide the drivers alleged to have engaged in impaired driving with due process under the California and United States Constitutions. The California Driving Under the Influence Lawyers Association alleged that by having the hearing officers simultaneously act as advocates for the Department of Motor Vehicles and as the triers of fact deprived the accused of a neutral hearing officer or unbiased judge.
The Department of Motor Vehicles asserted that the California Driving Under the Influence Lawyers Association did not have taxpayer standing to assert its claims.
The court, in the person of Los Angeles Superior Court Judge Rita Miller, granted the Department of Motor Vehicles’ motion for summary judgment on that basis. Judge Miller did not address the substance of California Driving Under the Influence Lawyers Association’s claims. The California Driving Under the Influence Lawyers Association appealed Judge Miller’s ruling, and in March 2018 the Second District Court of Appeal reversed her, finding that the California Driving Under the Influence Lawyers Association indeed had standing and remanded the case to the trial court for further proceedings.
The case was thereafter considered by Judge Holly Fujie. Upon considering the matter, Judge Fujie ruled in favor of the Department of Motor Vehicles on its contention that the California Driving Under the Influence Lawyers Association assertion of the right to pursue a civil action for deprivation of rights under United States Code § 1983 was inapplicable. Judge Fujie did, however, rule in favor of the California Driving Under the Influence Lawyers Association with regard to due process protections in the California Constitution and its assertion that California’s Code of Civil Procedure section 526a grants a taxpayer the right to bring an action to restrain or prevent an illegal expenditure of public money. The upshot was that Judge Fujie ruled that the Department of Motor Vehicles could not use an individual designated to carry out the prosecutorial function in intoxicated driving license suspension hearings from also serving as the judge or hearing officer.
Gratified with the ruling that the Department of Motor Vehicles could not use a prosecutor as a hearing officer under state law, Mandell and the California Driving Under the Influence Lawyers Association nevertheless appealed Judge Fujie’s finding that federal law, primarily United States Code § 1983, did not similarly allow for a challenge of the Department of Motor Vehicles’ use of a prosecutor to serve as a hearing officer in the same case.
Last Friday, April 15, 2022, the Second District Court of Appeal upheld that element of Judge Fujie’s ruling holding that under California law and the California Constitution drivers accused of driving under the influence are entitled to a hearing officer separate from the individual making the case against them. It reversed her on the question of whether federal law, in particular United States Code § 1983, could be brought to bear in forcing the Department of Motor Vehicles to employ separate prosecutors and hearing officers in such hearings.
“Combining the roles of advocate and adjudicator in a single person employed by the DMV violates due process under the Fourteenth Amendment and the California constitution,” according to the Second District Court of Appeal. “The hearing is adversarial, and the hearing officer’s role involves both advocating on behalf of the DMV and acting as factfinder. The California Driving Under the Influence Lawyers Association contends the Department of Motor Vehicle’s ‘administrative per se’ hearing structure violates the California and federal due process rights of drivers by combining the advocacy and adjudicatory roles into a single Department of Motor Vehicles employee. We agree.”
According to the Second District Court of Appeal, other “courts have held procedural fairness requires some internal separation between advocates and decision makers to preserve neutrality. By definition, an advocate is a partisan for a particular client or point of view. The role is inconsistent with true objectivity, a constitutionally necessary characteristic of an adjudicator.”
The Second District Court of Appeal went on to state, “Although procedural fairness does not prohibit the combination of the advocacy and adjudicatory functions within a single administrative agency, tasking the same individual with both roles violates the minimum constitutional standards of due process. The irreconcilable conflict between advocating for the agency on one hand, and being an impartial decisionmaker on the other, presents a ‘particular combination of circumstances creating an unacceptable risk of bias.’”
The Second District Court of Appeal’s ruling, though contexed with regard to an adjudication process involving the Department of Motor Vehicles, has a wider latitude of applicability. Having been entered into the books within the state court and standing as a precedent achieved in appellate court, it can now be cited by an enterprising attorney advocating on behalf of a client being subjected to a code enforcement process which likewise involves a hearing officer overseeing the case against an alleged violator who is also prosecuting the case against that defendant.
While the precedent stands at the moment, the possibility remains that another appeal to a higher authority, in this case the California Supreme Court, will be made in an attempt to prevent that precedent from being etched in legal concrete.
Gary Wenkle Smith, a San Bernardino-based defense attorney, said such an appeal is more than likely.
Smith agreed that the Second District Court of Appeal’s ruling on the California Driving Under the Influence Lawyers Association case sets a precedent.
“I think that is a precedent,” Smith said. “But it will last only until it is appealed further, which is probable. If this ruling stands, it will require the DMV to go to great lengths to restructure their system. For hearings, they will need to hire, or at least employ, different people to serve as the hearing officers.”
In his view, Smith said, the Department of Motor Vehicles’ hearing process was due for reform.
“Those hearing officers who are their enforcement advocates are not lawyers,” he said. “That is an issue. They don’t have in-depth legal knowledge, knowledge or expertise as to probable cause and what constitutes probable cause. You have to get to the point of probable cause to be able to force the driver to submit to a blood test. There can be questions, legitimate questions, as to whether probable cause existed. If the person putting on the case needs that evidence, the blood test, to come in to make a case against an accused impaired driver, how would you expect him to fairly consider whether probable cause existed for the blood sample to be taken? What are the chances that the prosecutor, who is relying on that evidence, will make an honest finding as to whether that evidence, if it was illegally or unconstitutionally obtained, should be excluded?”
The system of justice and the state’s administrative processes should not be a simple mill that everyone gets run through, Smith said.
“Under the Constitution and our way of government, defendants have rights,” Smith said. “That’s what the Fourth Amendment guarantees us. That is not something to be taken lightly. The hearing officer should not be the same person who is trying the case. The hearing officer should not be someone who has a close relationship with whoever is trying the case. If you are prosecuting someone, you are not unbiased. The Court of Appeal is absolutely correct. When you have the same person prosecuting someone and running the proceedings, that is a biased hearing. The fairness of a hearing is a Constitutional issue. With this ruling, it is going to cost the State of California and its taxpayers a lot of money to fix a system that is biased. To me, that is a worthwhile investment. But you can bet the DMV is going to appeal this.”
-Mark Gutglueck

Marqel Cockrell, the 20-year-old co-owner of the Sole Addicts shoe store at the Mall of Victor Valley in Victorville who opened fire on two shoplifters and wounded a 9-year-old girl in the process on April 13, has been returned to San Bernardino County to face three felony charges and two felony enhancements in the incident.
Cockrell, a 2020 graduate of Excelsior Charter Academy in Victorville who was lauded as hardworking young entrepreneur, in less than a fortnight has seen his life circumstance slide sideways following a moment of reckless reaction to himself being victimized.
Around 6:26 p.m. Cockrell was at work in Sole Addicts, which is located next to Solo Wear and near Macy’s, when he saw two customers steal merchandise. As he approached them, they fled. He gave chase and as they ran in a west-southwesterly direction down the mall corridor, he used a handgun to take aim and fire what is believed to have been four shots at them.
Ava Chruniak, 9, was standing in line to have her picture taken with an Easter bunny near a wide spot in that same corridor proximate to Stacy’s clothing store, Famous Footwear and Barnes & Noble. Reportedly, she suffered three wounds, two of them in her right arm.
“Cockrell’s shots missed the shoplifters and instead hit the 9-year-old female victim,” according to the San Bernardino County Sheriff’s Department, which serves as the contract Victorville Police Department.
A call reporting gunfire at the mall went out at approximately 6:30 p.m.
Ava was with her mother, brother, sister and a cousin. They scurried after the shots were fired. An employee at Stacy’s clothing store ushered them into that shop and locked the door behind them. They hid in the storage room at the back of the store. Because Ava was bleeding, her mother and the storekeeper covered her arm with towels, primarily to keep her, her brother and her cousin from panicking at the sight.
An arriving paramedic team ministered to the girl, and she was then airlifted to Loma Linda University Medical Center.
Young Chruniak suffered what were essentially two flesh wounds to her right forearm and a third to her upper arm, which fractured her humerus.
At least eight sheriff’s vehicles responded to the mall, which was shuttered. With the mall’s stores locked down and customers sheltered inside, deputies searched for the shooter. Initially, it was believed that the shots had been fired in the course of an armed robbery. Within 45 minutes, however, deputies had learned that it was Cockrell who was responsible for the shooting.
Cockrell had left the mall almost immediately, before the first of the responding officers had arrived. He drove straightaway north and ultimately northeast on the Interstate 15 Freeway to Nevada. Upon his reaching the California/Nevada border, a license plate reader alerted the Nevada Highway Patrol of his approximate whereabouts and his heading. He was stopped less than two minutes later and arrested by the Nevada Highway Patrol at about 9 p.m. in Primm, Nevada, just across the state line in Clark County.
Cockrell, 20, appeared in Las Vegas Justice Court before Senior Judge James Bixler on Thursday, April 14. He waived extradition to California.
At Loma Linda University Medical Center, surgery on Ana Chruniak had to be delayed because of the need for her humerus, the bone in her upper arm, to set and heal. She was outfitted with a brace rather than a cast. She was released from the hospital on April 14, the same day Cockrell waived extradition. Ana must return for surgery next month. There remains a possibility she will not recover full use of her arm.
That reality and the consideration that one of the bullets fired by Cockrell missed her cousin’s head by no more than two inches has left Ana’s father, Charles Chruniak, Jr., upset, putting it mildly.
“Nobody in their right state of mind would run out in a crowded mall and pop shots,” he told the Los Angeles CBS affiliate.
Cockrell is now in custody at the High Desert Detention Center in Adelanto, the same city where his home is located. His bail, which was originally set at $1.3 million, now stands at $250,000.
He was arraigned on Monday, April 20 before Judge Arthur Benner II. He has been charged with five felonies: PC245(a)(2) assault with a firearm; PC12022.5(a) use of a firearm; PC12022.7(a) personal Infliction of great bodily injury; PC246.3(a) willful discharge of a firearm with gross negligence; PC25850(a) carrying a loaded and unregistered handgun on one’s person or in a vehicle. He pleaded not guilty to all of the charges.
A little more than two years ago, Cockrell was yet in high school, where he was a point guard on the basketball team that played in the California Interscholastic Federation Southern Section 2020 Boys’ Basketball Championships Division 5AA Tournament.
By all accounts, Cockrell has been earnest in his entrepreneurial endeavors. Last year, in May 2021, he utilized his status as a sole proprietor with an unspecified enterprise located in Adelanto to obtain a coronavirus-related $20,666 Paycheck Protection Program loan through Benworth Capital backed by the Small Business Administration.
Both shoplifters who precipitated the incident remain at large.
-Mark Gutglueck

The City of Needles has joined with the building momentum in three other cities in the county as well as at the level of county government in imposing further restrictions on short-term or vacation residential rentals.
On April 12, the Needles City Council previewed and gave initial approval to an ordinance requiring those leasing or renting residential units for short durations to obtain a license.
Within the last decade, issues have cropped up in areas around the county that are frequented by vacationers, as mild to more serious conflicts have arisen between the residents of those more exotic locales and the people who temporarily flock to the mountains, picturesque desert districts or the shores of the county’s several lakes or the Colorado River.
The unincorporated communities of Mt. Baldy, Joshua Tree, Wrightwood, Crestline, Cedarpines Park, Lake Gregory, Lake Arrowhead, Blue Jay, Valley of Enchantment, Cedar Glen, Sky Forest, Twin Peaks, Arrow Bear, Big Bear City, Angeles Oaks, Forest Falls, Running Springs, Green Valley Lake, and the four incorporated municipalities of Big Bear Lake, Yucca Valley, Twentynine Palms and Needles have been for decades popular destinations for vacationers or those seeking to unwind for a weekend or do some skiing, waterskiing, camping or hiking. San Bernardino County was not immune to the AirBNB [air mattress bed and board] phenomenon in the early 2000s – in which the owner or a residence in a desirable location simply lays down air mattresses in a living room or den and rents that space out as a crash pad or motel room to those who are going to briefly visit that area. Accordingly, the number of short-term renters in many San Bernardino County communities mushroomed in the last decade-and-a-half. In recent years, cabins, rooms, units and even trailers have been made available for people to live in for relatively short and in some cases longer periods in rustic areas throughout the county. Those who permanently live in proximity to those vacation spots have grown increasingly vocal in complaining about these transitory nearby residents. On occasion, the comportment of some of those vacationers is not as civil as their temporary neighbors would prefer, particularly when alcohol or recreational drugs are involved. In some cases, quarters that are intended for a few people or a family or two is called upon to accommodate several dozen occupants. That brings with it issues such as noise, overburdened parking space and compliance with rudimentary laws. On infrequent occasions, a rave-like event manifests in a place ill-suited for it, and things in such circumstances have quickly raged out of hand.
In 2017, county government made a concerted effort to deal with the matter in the mountain communities. In 2019, the county moved to take up the issue directly and generally, not just in the mountains, but in desert communities, in particular ones along the Colorado River as well as those near, in and around Joshua Tree National Park, which includes Morongo Valley, Yucca Valley, Joshua Tree, and Twentynine Palms. The county imposed on short-term rentals renter identification/registration and on-site parking requirements, exterior and interior maintenance standards, along with a mandate that evacuation maps on all doors within each unit be posted. The county instituted fines of $100 on the rental units’ owners for a first violation of those protocols, a $200 fine for a second offense and a $500 fine for a third, as well as like penalties for disturbances at the units. In 2021, after those earlier efforts proved less than fully effective, the county upped its fines to more draconian terms, those being that offenses were no longer considered administrative but criminal, subject to penalties of $1,000 for the first offense, $2,000 for the second offense and $5,000 for the third offense falling within a 12-month period. Operating a short-term rental unit without a permit was subject to the same $1,000, $2,000 and $5,000 fines per violation per day.
In Yucca Valley, to offset the problems residents there endured in their encounters with insensitive short-term visitors, the town government in 2017 approved an ordinance that imposes on the owners of residences rented out as vacation homes a requirement that they apply for a $270 permit every two years and pay the same taxes applied to hotels. Permit fees are used to fund the cost of the town hiring a private company to monitor the properties, enforce codes and deal with complaints relating to the properties emanating from neighbors.
Big Bear Lake is the site of the most intensive controversy over short term rentals in San Bernardino County. As a ski resort in the winter and early spring and a location that attracts boaters, water-skiers, fisherman and other sportsmen from late spring into the fall, it attracts thousands upon thousands of short-term occupants annually. A substantial number of property owners in Big Bear Lake derive considerable income from catering to short-term residents. A substantial number of homeowners in the city have no financial interest in tourism, and many of those are less than appreciative of having to put up with a constant influx of highly unpredictable temporary neighbors of variable levels of gentility. They have importuned the Big Bear Lake City Council to institute rules and ordinances that will impose tough restrictions on rental units. The council majority responded by initiating a regulatory regime that involves licensing and fines on cabin owners on whose properties problems manifest, with the potential for revocation of those licenses if the nuisances persist on a given property. A contingent of city residents do not believe that City Hall has gone far enough with those measures, and they have continued to push for more vigorous regulation, including a cap on vacation rentals and an increase in the transitory occupancy tax – i.e., the city’s bed tax or hotel tax – from 8 percent to 12 percent, based on their argument that 35 percent of the calls for service from the fire department or sheriff’s department involve short-term rental properties and/or visitors to the city. In August 2021, the Big Bear Lake City Council voted 4-to-1 against a proposed cap on vacation rental permits. Council members said they wanted to give the regulations that exist an opportunity to work. If those do not achieve the desired results, they said they might then put more restrictive measures into place.
That prompted a contingent of city residents to band together under the aegis of an organization dubbed Big Bear Lake United to Limit Short Term Rentals. They set about gathering sufficient signatures on a petition calling for a ballot measure to be placed before the city’s voters during the November 2022 election asking whether a limit on the number of vacation rentals in the city should be imposed. On April 7 they turned over to Big Bear City Clerk Erica Stephenson those petitions, endorsed by what gatherers said was more than 750 signatures, enough to qualify the measure for inclusion on the ballot.
In Twentyine Palms, which lies proximate to the entrance of Joshua Tree National Park, residents there are increasingly fed up with strangers blowing into town, taking up a very short-term residence in their neighborhoods and partying loud and hard until dawn. They want city officials to do something about it. The city council turned to the planning commission for a recommendation. Three of the five members of the planning commission – Leslie Paahana, Jason Dickson and Max Walker – have indicated they are willing to limit to 12 percent – 696 – the number of the city’s 5,797 houses that can be utilized as short-term rentals. Another member of the planning commission, Jim Krushat, entertains the concept of limiting the rentals, but expressed a preference for a limitation closer to 20 percent or 1,159. Commissioner Greg Mendoza has said he does not think it is the city’s place to engage in such regulation and that the free market should determine who will rent short term or long term. The commission has not made an official recommendation to the council, which is to consider an ordinance that could limit the number of short-term rentals to as few as ten percent of the city’s housing stock – 579 – on May 10.
In Needles, residents like those elsewhere, have complained about the increasing number of AirBNBs and vacation homes and short-term condominium rentals and leases.
The ordinance the city council considered and gave a first reading to on April 12 would impose a $400 application and licensing fee on those who register their property for short-term rental use as temporary living quarters in the city on California’s east coast along the Colorado River.
The registration fee is intended to offset the cost of city staff carrying out a building and code inspection of the property to ascertain whether it is safe and in compliance with California residence codes and statues as well as the San Bernardino County Fire code.
In addition, the fee will go into a fund that is used toward the city’s contract with the sheriff’s department, which responds to resident complains regarding illegal fireworks, noise and excessive sound violations and illegal or other unpermitted activities within residential neighborhoods.
The ordinance includes provisions that would prohibit the rental units from being used to host commercial activities such as weddings, conferences, fraternity parties and corporate retreats. Furthermore, owners of the units would need to register the renters who stay there prior to allowing them to take occupancy of the unit. The property owners are required under the proposed ordinance to be available by telephone around the clock to address any issues or complaints that come up and further be available at all times to arrive and be physically present at the property within 30 minutes to respond and remedy complaints in the event a situation develops where that is necessary.
The council is scheduled to make a second reading of the ordinance on April 26. If the council again votes to ratify the ordinance at that time, it will go into effect 30 days later.
-Mark Gutglueck

The Center for Biological Diversity’s petition to have the western Joshua tree listed as a threatened species suffered a setback last month after a panel of scientists concluded available data does not conclusively demonstrate the plant’s habitat will fully disappear in the foreseeable future.
In October 2019, the environmental group made a request of the California Department of Fish and Wildlife that the western Joshua tree be listed as a threatened species under the California Endangered Species Act. The Fish and Game Commission is scheduled to make an ultimate decision on that request on June 16, 2022.
On April 13, the California Department of Fish & Wildlife released a report and recommendation completed in March which included a peer review of the available data relating to the Joshua tree assembled by Dr. Cameron Barrows of the University of California Riverside, Dr. Erica Fleishman of the Oregon Climate Change Research Institute, Dr. Timothy Krantz with the University of Redlands, Dr. Lynn Sweet with the University of California, Riverside and Dr. Jeremy B. Yoder from California State University Northridge.
Barrows, Fleishman, Krantz, Sweet and Yoder acknowledge the outlook for the plant, known by its scientific name Yucca brevifolia Engelm, is grim. “The population size and area occupied by [the] western Joshua tree have declined since European settlement largely due to habitat modification and destruction, a trend that has continued to the present,” the report states. “Primary threats to the species are climate change, development and other human activities, and wildfire. Available species distribution models suggest that areas predicted to be suitable for [the] western Joshua tree based on 20th Century climate data will decline substantially through the end of the 21st Century as a result of climate change, especially in the southern and lower elevational portions of its range.”
Nevertheless, the scientists said, “the department does not currently have information demonstrating that loss of areas with 20th Century suitable climate conditions will result in impacts on existing populations that are severe enough to threaten to eliminate the species from a significant portion of its range by the end of the 21st Century. The effects of development and other human activities will cause western Joshua tree habitat and populations to be lost, particularly in the southern part of the species’ range, but many populations within the range of the species are protected from development, suggesting that a significant portion of the species’ range will not be lost by development alone. Wildfire can also kill over half of western Joshua trees in areas that burn, and wildfire impacted approximately 2.5% of the species’ range in each of the last two decades, but wildfire does not appear to result in loss of range, only lowering of abundance within the species’ range.”
Barrows, Fleishman, Krantz, Sweet and Yoder said that “While the department recognizes the threats faced by the species, and the evidence presented in favor of the petitioned action, the scientific evidence that is currently possessed by the department does not demonstrate that populations of the species are negatively trending in a way that would lead the department to believe that the species is likely to be in serious danger of becoming extinct throughout all or a significant portion of its range in the foreseeable future. The department recommends that the commission find that the recommended action to list [the] western Joshua tree as a threatened species is not warranted.”
Brendan Cummings, the Center for Biological Diversity’s conservation director, decried the recommendation as one in which, “California wildlife officials just proposed open season on Joshua trees.” Inaction, Cummings said, will doom the species. “Before state protections took effect, developers were bulldozing these beautiful, fragile trees by the thousands to build roads, warehouses, power plants, strip malls and vacation rentals. If Joshua trees are to have any hope of surviving in a warming world, we have to stop the widespread killing of them.”