Pursuant to direction yet to be given by San Antonio Regional Hospital’s board of directors, the corporate leadership of the medical facility will likely follow through on the effort begun in 2018 to appropriate 12 percent of Upland’s Memorial Park that is adjacent to its campus for use as a parking lot to accommodate its burgeoning parking burden. That takeover has lain dormant for nearly 22 months, while legal and political sparring took place which resulted in no fewer than six of Upland’s institutional leaders being shown the door or leaving of their own accord because of the controversy the yet-to-be-consummated parkland sale generated, not to mention city residents’ removal of the three of the city’s four council members who supported the sale who were up for voter approval in the last election cycle.
This time around, it appears that the hospital will seek to form a community consensus at the ballot box to effectuate the purchase, which those who opposed the sale have advocated be done all along.
On one level, San Antonio Hospital finds itself in this position not because of failure but rather success.
In 2011 Harris Koenig was named San Antonio Community Hospital’s CEO and president. Immediately thereupon, Koenig and the hospital’s board of directors embarked on transforming the institution from a community hospital into a regional institution. Using financing that consisted in large measure of $125,000,000 in certificates of participation issued using the City of Upland’s bonding authority, the hospital underwent six years of construction and renovations. That construction involved a series of planned expansion stages which increased the number of beds at the institution from 271 to over 400, saw the addition of the $160 million four-story Vineyard Tower at 999 San Bernardino Road, as well as another $30 million, 60,000-square-foot structure at 1100 San Bernardino Road, upped the number of stations in the hospital’s emergency room from 34 to 52, and created and outfitted 12 more intensive care units.
In a remarkable misjudgment, neither the hospital nor the city’s community development division had foreseen or taken stock of the degree to which the hospital room expansion and its accompanying increase in not only patients but visiting family members and friends would result in overwhelming the hospital’s existing provisions for parking. Indeed, when the city in 2015 updated its general plan after the hospital expansion had progressed for four years, still no heed had been given to the way in which the enlarging of the hospital’s footprint to that point had consumed some of the previously existing parking spaces, nor the likelihood that by the time the renovations were completed that more space for parking would be needed. Then-Upland Community Development Director Jeff Zwack had failed to ensure that arrangements for enhanced parking availability was included in the application/plans approved by the City of Upland for any of the hospital projects as required by law. Within two months of the completion of the hospital’s final expansion phase in 2017, the problems were manifest. At that point, Zwack huddled with interim City Manager Marty Thouvenell, Assistant City Manager Jeannette Vagnozzi, City Attorney Jim Markman and subsequently incoming City Manager Bill Manis, who began with the city in January 2018 as Thouvenell transitioned into the status of the city’s senior management consultant. Together they sought to find some way to assist the hospital. All five officials were sensitive to San Antonio Hospital’s status as the city’s major institution and largest employer, and they considered accommodating its needs to be paramount.
Penultimately, the five, together with Doug Story, who had been promoted to the capacity of Upland’s recreation manager in the September/October 2017 timeframe, devised a plan that would in a relatively short period end their status as City of Upland employees.
Stealthily, on March 26, 2018, after having given the community a mere 72 hours notice, Manis, Thouvenell, Markman, Vagnozzi and Story presented and recommended to the city council a proposal that called for the city selling to the hospital 4.631 acres of the southwestern portion of Memorial Park, which contains a baseball field that is actively used by the city’s youth sports leagues.
In compliance with that recommendation, the city council with remarkably little deliberation that night voted 3-to-1 to approve a purchase and sale agreement between the hospital and the city, with San Antonio Hospital committing to paying $906,931.55 per acre, or a total of $4.2 million, to acquire the 4.631 acres. Mayor Debbie Stone and then-council members Gino Filippi and Carol Timm went along with making the sale. Councilwoman Janice Elliott opposed it. Then-Councilman Sid Robinson, who normally voted in lockstep with Stone, Filippi and Timm, was not present at the meeting.
In approving the sale, the city council authorized City Attorney James Markman to undertake a so-called validation proceeding intended to foreclose any procedural or future legal challenge to the sale. In its validation action filed with the court, the city invited anyone opposed to the sale to lodge a protest. A challenge to the validation had to be filed within 60 days. Once the court validated the sale, any future lawsuits contesting the sale would be barred. The calculation by those favoring the sale was that no one would go to the expense of hiring an attorney to make an answer to the validation petition.
The validation procedure was directed to the courtroom of Superior Court Judge David Cohn in San Bernardino. To the chagrin of city and hospital officials, Marjorie Mikels, an attorney living in the city, as well as the Inland Oversight Committee represented by Cory Briggs, an attorney based in both Upland and San Diego, filed answers to the validation action. Those responses took issue with the sale on multiple grounds, among which was that the city selling off a slice of the park – in particular the one sold by the council on March 26, 2018, which included the long extant and actively used baseball field – is tantamount to abandoning public property. Such abandonments, under state law, cannot be effectuated without a vote of the citizens residing in the jurisdiction that owns that property.
Faced with not one but two challenges to the sale he had not anticipated, City Attorney Markman sought to convince Judge Cohn that the city council, acting on its own authority, was within its rights to sell off city land. In response to the argument that a municipality’s abandonment of property it owned and was putting to beneficial public use had to be subjected to a vote, Markman asserted that selling the property did not constitute an abandonment.
Ultimately, some 14 months after the sale of the park property was approved by the city council, on May 29, 2019, Judge Cohn, after hearing the responses to the city’s filing, dismissed its petition for validation. Judge Cohn’s ruling cleared the way for anyone with standing – meaning essentially any city resident – to file a lawsuit challenging the sale.
Before 2018 had fully run, several of those who had been involved in the park sale had paid a severe price and the others were headed toward a rendezvous with destiny.
In June of that year, Zwack abruptly retired as the city’s development services director. In September 2018, Manis resigned as city manager after a tenure of less than nine months, effective November 1, 2018. Councilman Sid Robinson’s status in Upland had largely been based upon his involvement in the city’s youth sports leagues. Suddenly, his voting record which was virtually indistinguishable from those of Mayor Stone and council members Filippi and Timm created a gulf between him and his natural constituency, given Stone’s, Filippi’s and Timm’s support of eradicating one of the city’s baseball diamonds. He announced he would not seek election that November. When that election was held, Filippi and Timm, who had become the object of a large number of voters’ wrath in part due to their March 28 vote to sell off 12 percent of Memorial Park, were voted out of office, while Councilwoman Janice Elliott, who had opposed the parkland sale, emerged victorious in her effort to gain election in the city’s newly created Second District, as the city held its first by-district election.
Roughly a month after the election, seeing the writing on the wall, Thovenell resigned his position as the city’s managerial consultant.
Jeannette Vagnozzi, who had been promoted to acting city manager upon the announcement of Manis’s resignation and then was elevated to the position of city manager by the lame duck city council without Elliott’s support in November 2018,  and City Attorney Jim Markman, who had been almost as much as Zwack an architect of the parkland sale, managed to survive the close of 2018. But by May of 2019, Vagnozzi was chased out of Upland, essentially fired by the city council as city manager.
That same month, Judge Cohn’s ruling had dismissed the validation action the city had filed to keep the sale of the park property from being challenged, at which point Markman found himself under siege as well. Not only was his legal expertise and judgment subject to question, it was painfully obvious that his militating on behalf of the hospital in its effort to obtain the park property for a parking lot was out of step with a sizable cross section of the most civically-active residents of the city. In October 2019, as the city council was making preparations to terminate him, Markman resigned as city attorney, and was replaced by Stephen Flower, a member of Markman’s law firm, as interim city attorney.
A month before Markman’s forced departure, San Antonio Hospital CEO and President Harris Koenig had been fired by the San Antonio Hospital Board of Directors. While the six-year-long expansion of the hospital that had begun shortly after Koening had been named the president and CEO of San Antonio Hospital in June 2011 modernized, upgraded and improved the hospital, the hospital’s earnings from 2016 onward had not been proportional to the investment that had been made to accomplish those improvements. A factor was the plain inconvenience both old and new patients and their families had to endure in simply finding a place to park when seeking to use the hospital. Consequently, some individuals who have been treated at the hospital over the last several years, reluctant to have to deal with the torturous effort to find a place to park, are now going elsewhere in search of medical care.
After Judge Cohn’s ruling in May 2019, those yet hoping that the city might be prevailed upon to let go of some of the park acreage so the parking structure could be built turned to Recreation Director Doug Story in a last ditch effort to formulate some way to have the city’s residents hold still for a reduction in the Memorial Park acreage. Story at that point threw together an application for $8.5 million in Proposition 68 park development/improvement grant money from the State of California. Story’s request was that the city be given the $8.5 million, the most any governmental jurisdiction could receive under the auspices of Proposition 68, to refurbish or replace Memorial Park’s playground equipment, add a water splash pad, an amphitheater and an artificial turf multi-sports competition field, augment the park with walking and exercise trails, a basketball court and a garden of native plants with trees and plants hospitable toward bees, hummingbirds and the like. In this way, Story hoped, Upland’s citizenry would ignore that accompanying the park enhancements would be the reduction of the 38.5 acre park by 4.631 acres.
When certain residents last fall asked him how it was that he could be so confident that the city was going to receive any grant money at all based on Upland proving the Memorial Park environs was an “economically disadvantaged” area and other competitive criteria, Story evinced impatience with the questions, brooking no suggestion that the state would turn the city’s supplication for the grant down. He was equally dismissive of any insinuation that the city might get less than the $8.5 million he had applied for. Abruptly, amid reports that someone had “dimed the city out” by calling state officials to inform them that the city did not meet specific criteria in the formula the state applies for determining a governmental jurisdiction’s eligibility to receive the Proposition 68 grant money, Story departed Upland to take up another position with the City of Beaumont. One of those grant eligibility criteria is that the city have a “deficit” of parkland such that its total park area is less than three acres per 1,000 people in the city overall. Another requirement is that that those living within Memorial Park’s “service area” be documented as having an average per-household annual income of less than $51,000.
With Story’s departure, he joined Koenig. Robinson, Filippi, Timm, Manis, Thouvenell, Vagnozzi, Zwack  and Markman as casualties of the city’s not-fully-thought-out March 2018 ploy to sacrifice a portion of Memorial Park to solve San Antonio Hospital’s parking issues. The only participant in that debacle that yet remains in position is Mayor Debbie Stone. She will be up for election in November.
When Judge Cohn made his ruling in May 2019, hospital officials appeared to have resigned themselves to the necessity of subjecting the sale of the property to a citywide vote. It earlier appeared that balloting would take place in conjunction with the March 2020 California Primary election. City and hospital officials put that on hold, however, hoping that Story’s gambit in getting the Proposition 68 money might placate Upland’s citizenry to the point that the sale of the 4.631 acres to the hospital could take place without any further objection, resistance or effective obstruction. With that having apparently failed, there were reports this week that city officials and the hospital are once again looking toward holding that vote, this time in November.
An issue that has gotten little public discussion is the possibility of reducing the acreage the hospital will need to meet its parking demand by building up rather than out. In 2018, Zwack had indicated that the hospital would be using some of the park acreage it was to obtain to construct a parking structure. Since before Zwack’s departure, however, discussion has been in terms of a parking lot rather than a structure. According to sources the Sentinel deems reliable, San Antonio Hospital considers it more propitious to acquire adequate property to accommodate the parking it needs than to accrue the expense of building a parking structure. At present, the hospital’s parking space deficit at peak usage is approaching 250 parking stalls. By purchasing the 4.631 acres, upon which 96 parking spaces plus driving lanes per acre can be established, the hospital can meet its current need and any future need projected into the foreseeable future. However, a one-acre four-story parking structure that included roof parking would accommodate 410 parking spaces, when subtraction of usable parking space to allow for ramps is figured in. Such a structure could be constructed on an acre of ground now used as the hospital’s parking lot. Subtracting the current 96 spaces located on that acre from the 410 parking stalls the structure would provide would give the hospital a net gain of 314 parking spots, adequate to meet its current needs and those likely to develop over the next decade.
Like Koenig before him, the hospital’s current acting CEO, John Chapman does not appear to be favorably inclined to converting the hospital’s existing surface grade parking lot to a parking structure. Rather, word is that the hospital is considering defraying the cost not only of a citywide vote on the parkland sale in November, but a public information campaign to convince the electorate that San Antonio Hospital’s place and stature within the Upland community as well as the lifesaving and health-enhancing service it provides merits the citizenry’s support in carrying out its medical mission. Chapman was traveling this week, and was therefore not available to speak with the Sentinel.
Cathy Rebman, San Antonio Hospital’s vice president for business development and community outreach, did say however that “San Antonio Regional Hospital is reviewing the potential park purchase. Any decision to proceed with a ballot initiative would require approval by the hospital’s board of trustees. More information can be provided after the board of trustees makes a decision about next steps regarding the park purchase.”
-Mark Gutglueck

On Tuesday, January 21, more than a year after his trial in the 2010 murders of the McStay family began, Charles, “Chase” Merritt following a series of interminable delays was handed a death sentence, which included being consigned to life without the possibility of parole for the killing of his business partner and three sentences of death for the murders of his business partner’s wife and two children.
Before pronouncing sentence, Judge Michael A. Smith first denied a motion by Merritt’s attorney, filed that morning, calling for the judge to remove himself from the case based on what was alleged to have been his bias in the case.
Merritt’s sentencing was originally scheduled four days previously, for the morning of January 17, Friday of last week. But his attorney, Raj Maline, had filed a motion for a new trial based on prosecutorial misconduct in the weeks prior to that hearing and on Friday morning had augmented that filing with another, one that sought a new trial based on ineffectiveness of counsel by Maline’s one-time law partner, James McGee, who had represented Merritt in conjunction with Maline and McGee’s associate, Jacob Guerard, during the nearly six-month long trial that was staged before the jury from January until June of 2019.
On June 10, 2019, the jury had returned guilty verdicts in the killing of Joseph McStay, his wife Summer McStay and the couple’s two sons, four-year-old Gianni and three-year-old Joseph, Jr. On June 24, 2019 the jury recommended sentences of life without the possibility of parole for the killing of Josrph McStay and the death penalty in the killing of the Summer, Gianni and Joseph, Jr.
Thus the near capacity crowd that had assembled on January 17 in Department 1, the largest courtroom at the 11-story San Bernardino Justice Center, had to wait patiently throughout the earliest part of the morning while Judge Smith read the 91-page brief that accompanied Maline’s latest motion, and then sit patiently while Maline presented an oral argument in favor of the motion for a new trial based on prosecutorial misconduct that extended itself into the noon hour. After an abbreviated lunch break, the courtroom spectators returned, at 1 p.m., upon which they learned as the proceedings picked up once more that Merritt wanted to fire Maline on the spot. There ensued what could only have been a very intense exchange between Maline, Merritt and Judge Smith in the latter’s chambers. After this further delay, all three returned to the courtroom and Judge Smith denied Merritt’s motion, whereupon Maline reassumed the attitude of a defense attorney dedicated to his client, putting his former law partner, Jim McGee, with whom he had represented Merritt during the marathon five-month-and-three-week-long trial proceedings last year, on the witness stand and subjecting him to a round of questioning that was angled toward suggesting that McGee had been remiss in failing to fully explore the degree to which the prosecution and one of its witnesses, FBI agent Kevin Boles, had misrepresented the technical precision of cell phone data relating the cell phone Merritt was using in 2010. The prosecution alleged, and Boles testified, information gleaned from Merritt’s cell phone activity suggested that Merritt was at the McStay home in Fallbrook on the night of February 4, 2010, when the victims disappeared and when the prosecution maintains they were murdered. Merritt’s cell phone data was further used to place him on December 6, 2010 in an area of the High Desert proximate to where the bodies of the family were later discovered to have been crudely interred in two shallow graves near a wash not far from a rarely used dirt road used for utility line maintenance.
Following that testimony, Judge Smith ruled on both of the motions for a new trial, dismissing them. By that point, the hour had reached five of the clock, an almost unheard-of extension of the business day at the courthouse, particularly on Friday. With many of the McStays’ extended-family members in the court clamoring for the judge to continue the hearing into the evening and render sentence that night, Judge Smith said he was constrained from imposing on court staff to remain that long after hours, but he did consent to allowing Joseph McStay’s adoptive stepfather, Patrick McStay, the opportunity to make his victim witness statement before he was scheduled to take a return flight to Texas the following day.
What remained as a substantial crowd involving both McStay and Merritt family members, sheriff’s department officers involved in the investigation of the McStay family deaths and a sizable media contingent was again the courtroom Tuesday morning following the Martin Luther King Holiday extended weekend. With the crowd anticipating that the hearing would very rapidly move to the crux of the hearing, they were again met with the delay Maline’s motion to disqualify Judge Smith entailed, which again required that he repair to his chambers to read the entirety of the motion and analyze it from both a factual and legal standpoint. That done, Smith returned to the bench, where he took up Maline’s motion to disqualify the court and prevent it from ruling on the remaining issues.
“The only issue that the court can rule on at this point with regard to the motion to disqualify the court is whether or not the motion is timely filed,” Smith said. “Under CCP [Code of Civil Procedure] Section 170.3 C1 the court does have the authority to strike such a motion if it is not timely filed. If it is timely filed, then the procedure is that the court will file a written statement in opposition or denying the allegation within five days. That then goes to the judicial council, who would then appoint another judge to rule on the motion. So, that would obviously take some time. The only other thing, the only issue this court can rule on now is whether or not the motion to recuse or disqualify this court from the remaining motions is timely filed. In that regard, the section 170.3 C1 and California Supreme Court case of People vs. Scott state that the motion to disqualify a judge must be filed at the earliest practical opportunity once the grounds for the motion are discovered or known by counsel. Here the primary allegation alleged to disqualify the court are the fact that the court allowed counsel to meet with the jurors in the jury room after the jurors had returned the final verdict in the penalty phase and the court was also present for that, and then when the bailiff notified the court that the McStay family wished to come in and thank the jurors the court allowed the McStay family to come in and thank the jurors. Mr. Maline complained about the atmosphere that existed during the time that jurors and the McStay family and the court were present. So, the question is whether the motion at this point is timely. Clearly, it is not timely. That occurred seven months ago. All of that was known to the defense literally from the time it occurred. Although Mr. McGee and Mr. Maline were not present, defense investigators, Alexandra Hailey, and Mr. McGee’s second counsel was also present so they were certainly apprised of whatever occurred at that point in time. Since then, as I said, seven months have transpired, and during that seven-month period Mr. Maline requested additional time to file motions for a new trial. At least one of the motions for a continuance was granted. Subsequent motions were denied. Mr. Maline then filed motions for a new trial. We spent an entire day discussing and ultimately ruling on some of those motions. Then, apparently, Mr. Maline alleges he was unhappy with how the court ruled on the motions and the manner in which the court ruled on the motions. He alleges that as an additional grounds for disqualifying the court. Obviously, counsel’s disagreement with the court’s ruling on the motions and the manner in which the court ruled on the motions is not a ground to disqualify the court. So, those allegations can be stricken as not constituting grounds for disqualification. The fact that seven months had elapsed from the time that the primary allegations counsel now alleges as disqualification had elapsed and that counsel in the interim had requested continuances, actually filed motions for a new trial and participated in a day-long hearing on motions for a new trial clearly indicate that counsel did not file the motion to disqualify the court at the earliest practical opportunity once council was aware of those events. So, the court based upon that strikes the motion to disqualify on the grounds that it is not timely. Suffice it to say that if we were to reach the merits of the issue, the court would file a written statement denying the nature of the allegations and explaining in the court’s view what did in fact and did not occur during the meeting in which the jurors, prosecution attorneys and the McStay family were present. The defense counsel of course was invited to be present for that. I think the record indicates the court’s comments at the time were if the jurors wished to speak with the attorneys, the attorneys would be available shortly and that’s when the attorneys had the opportunity to go back and talk with the jurors. Since the court is striking the motion for disqualification on the grounds of timeliness, this is not the appropriate time or manner to address the issues alleged in the motion, so the court will not do so at this time.”
Smith made note that in conjunction with another of Maline’s motion for a new trial based on the cumulative misconduct of the prosecution team ruing the trial, Maline had provided him with a notebook with six exhibits, including videos of certain elements of the proceedings. Judge Smith said he would not view those exhibits but consented to them being designated as exhibits and becoming part of the record to be considered by the appellate court.
Objections to those alleged instances of misconduct were not brought up in their immediate aftermath during trial. In response to Maline’s assertion in his motion that the defense had not made issue of that alleged misconduct at the time of the trial because Judge Smith had denied earlier motions relating to the defense’s allegations of prosecutorial misconduct and McGee and Maline thus believed the judge would not rule in favor of the defense if it had lodged such complaints during the trial, Judge Smith said was not a justification for filing an untimely motion relating to such matters at this late of a stage.
In response to Maline’s assertion that he had been insensitive to prosecutorial misconduct as evinced in his rejection, last Friday, of the defense’s motion for a new trial based on prosecutorial misconduct, Judge Smith said he had reviewed the transcript of the trial notes with regard to prior defense motions relating to allegations of prosecutorial misconduct. “I am satisfied after reviewing all of those that, number one, there was no prosecutorial misconduct, number two, there was no prejudice in reviewing the totality of all of the alleged instances of misconduct, [and it] did not rise to the level of prejudice to the defendant. As I indicated during the trial and as I indicated on Friday, it is my experience that when counsel conduct themselves inappropriately, that does not aid them or their case but is to their detriment in the jury’s view, and I expressed that to counsel during the course of the trial. In any event, the court finds there was no misconduct. There was no prejudice to the defendant as a result of any of the complained misconduct by counsel, and therefore the motion for a new trial on the grounds of prosecutorial misconduct and the cumulative effect of the totality of the prosecutors’ conduct is also denied.”
With the motions for a new trial denied the court then took up the automatic motion to modify the sentence to life without the possibility of parole.
Maline said his arguments were made without conceding guilt as it was yet the defense’s position Merritt had not committed the crimes, so there was no plea of mitigation to lessen the sentence. He did say, however, “We would still like the court to consider the insufficiency of the evidence because at the end of the day, there is no evidence linking Mr. Merritt to these brutal murders. The fact remains the February 4 circumstance of events  cannot be explained with Mr. Merritt as the perpetrator in any way, shape or form. In whatever mental gymnastics one wants to undergo, it would exclude Mr. Merritt as the perpetrator.”
Maline reminded the court that it was the defense’s contention that Merritt was not at the McStay home in Fallbrook on the evening of February 4, 2010, but even if one accepted the prosecution’s assertion that it was Merritt’s truck driving away from the home at 7:47 p.m. that night, there was yet documentable proof that there had been activity on computers inside the McStay family home involving the family in the 31 minutes after that, which oversets the prosecution’s theory of Merritt’s guilt as it stands. Maline said the prosecution had engaged in a “lot of name calling in the trial,” particularly in seeking to prejudice the jury against his client by drawing attention to his proclivity for gambling  “That dominated and had an effect on an already-receptive jury,” Maline said, “who of course – who would blame them – want to give justice to the [McStay] family, who had waited so long. But if you look at the evidence, there’s nothing there. Whatever the prosecution said about any given fact or any given circumstance, it was taken out of context. This led to the atmosphere in which the jury could find Mr. Merritt guilty, when you talk about greed, when you talk about all of the nonsensical things they did. How do you counteract something when they are just name-calling? You can’t do it. And that’s the atmosphere that permeated the trial.”
Supervising Deputy District Attorney Britt Imes countered Maline.
“The one thing that is clear on the merits, the defense’s position is to impugn not only the credibility of the jury now but also the court, and that is not a basis to reduce the verdict,” Imes said.
Imes then sought to make an issue of Merritt not having     confessed to the crimes or having acknowledged, despite his conviction, that he was the perpetrator.
“I think the court can also take into consideration the defendant’s lack of remorse,” Imes said. “I think that has been abundant and apparent from the day one of this investigation, through his attitude to investigators in interviews, his statements to investigators, his statements to the family through today.”
Imes called the conclusion the jury had come to “a deliberative verdict,” citing in doing so that that the jurors had recommended that the judge mete out life without the possibility of parole for the killing of Joseph McStay  and the death penalty in the deaths of his wife and two children.
Judge Smith said, “The standard that the court is required to utilize in reviewing a verdict of death by a jury in considering the statutory motion to reduce that verdict to life imprisonment without the possibility of parole is that the court must independently examine and weigh the evidence regarding the aggravating and mitigating circumstances and then the judge must make an independent judgment as to whether or not the totality of the weight of that evidence supports the jury’s verdict of death. The court does not render its own or de novo penalty decision. The court has independently examined and weighed the evidence… as it relates to the aggravating and mitigating factors.”
Judge Smith then summarized the evidence relating to factors in aggravation and in mitigation he considered most significant.
Judge Smith addressed Maline’s characterization of the evidence against Merritt as “flat out false or out of context.” The judge said there indeed  was a conflict in the evidence presented by the prosecution and the defense. “The prosecution evidence says one thing” Judge Smith said. “The defense evidence says that evidence is wrong, it is taken out of context, it’s false, here’s why it’s false. That creates a conflict in the evidence. The jurors had the opportunity to see the arguments on both sides to evaluate those conflicts in the evidence, and the jury resolved that conflict against the defense and in favor of the prosecution. In the court’s independent judgment, after weighing all of the evidence, the court’s independent judgment was and is that substantial evidence supports the jury’s verdict in resolving those conflicts in the evidence. With regard to the motion to modify the verdict, the court has independently examined and weighed the evidence of aggravating and mitigating circumstances.”
Judge Smith said that in considering the circumstances of the crime, “The extremely aggravated nature of the crime certainly carries significant weight.”
If Merritt had killed Joseph McStay alone, the judge said the application of penalty would not have been death. “What  makes the circumstances here more aggravated is that the defendant went to the victims’ home where he knew Joseph’s wife and young children were and any confrontation there would result in both Summer and the children being present. The additional killing of not only Summer but two children is extremely aggravating. There really isn’t much that can be more aggravating than the intentional murder of two children and the manner in which that was done.”
Judge Smith said the extremity of the violence added to the aggravating circumstances of the crime. Moreover, Judge Smith said, Merritt inflicted tremendous suffering on the McStay family’s survivors.
Merritt, Judge Smith said “knew he had a brother, knew he had a mother. He knew the loss that would be created for the family.”
There was a further aggravating factor in that, Judge Smith said, the “victims were vulnerable” and they knew and trusted him and had no reason to expect violence on his part.
The judge did cite some factors in mitigation, including that he had not history of violence and that he had been, at least intermittently, a good father, and possessed a “creative streak” and “positive work ethic.”
Judge Smith said Merritt’s close and strong relationship with his daughter “reflects positively on Mr. Merritt and the values she attributed to him.”
Judge Smith said in a circumstantial case there is always some room for lingering doubt.
“The court will acknowledge there is a possibility of lingering doubt and that is a mitigating factor to take into consideration in determining the appropriate penalty,” Judge Smith said. “The court does not consider that a strong mitigating factor or attach significant weight to it.”
Judge Smith rejected Imes’ assertion that Merritt’s failure to admit his guilt or express contrition for the crime of which he stands convicted was a factor in aggravation.
“The prosecution argues lack of remorse is an aggravating factor,” Judge Smith said. “The court does not consider lack of remorse in this case to be an aggravating factor. The defendant’s position throughout the trial is he is not the person who committed the crime. So, a defendant asserting his innocence I don’t think can be considered a factor in aggravation. The court does not consider lack of remorse where the defendant is steadfast in his assertion he is not the responsible party to be a circumstance in aggravation.”
In sizing up the formula he was applying in his evaluation, Judge Smith said, “In order to sustain a verdict of death, the aggravating factors must outweigh the mitigating factors, and the aggravating factors must be so substantial in comparison to the mitigating factors that death rather than life in prison without the possibility of parole is the appropriate sentence. The jury so found that with regard to the murder of Summer, Gianni and Joseph, Jr. that the aggravating factors did outweigh the mitigating factors, and that the aggravating factors were so substantial in comparison to the mitigating factors that death was the appropriate verdict for those three offenses. After independently examining and weighing all of the evidence of all of the aggravating and mitigating circumstances, it is the independent judgment of this court that the totality of the weight of the aggravating evidence overwhelmingly supports the jury’s verdict of death.”
Judge Smith reasoned “the extreme violence and savagery of the killings, particularly of two small children, far outweigh the totality of all of the mitigating evidence. For those reasons, the motion to reduce the jury’s penalty verdict of death as to the murders of Summer, Gianni and Joseph, Jr. to life in prison without the possibility of parole is denied.”
The court heard victim-witness statements. While each of the six spoke, Merritt, who was seated at the defense table facing the front of the courtroom, turned his chair to face, as best as the narrow confines between the defense table and the prosecution table behind it allowed, those speaking.
Tracy Russell, Summer McStay’s sister, in her statement navigated between statements to Merritt directly addressing him and to the court. She said that the “trial has been excruciatingly painful.” She and her family, Russell said are “scarred for life,” and that “for almost ten years our family has already been given a life sentence of death over again.  Never again in our lives will we hear their voices. Never will we see their smiles. Our children won’t grow up together. My sister walked with a purpose and passion. She was brave, smart, funny and, yes, territorial. She is none of the horrible things she was made out to be over all these years. It kills me in my soul we will never have them in our lives again. You took their lives so violently. You sit there with no remorse or accountability. There is no justification or comprehension for what you have done. Your actions have devastated and destroyed my mother. You have sentenced her to a life of grief. You left my beautiful nephew Jonah fatherless. There is a hole in his heart that none of us will ever be able to fill. He still hasn’t admitted what he has done. He hides behind attorneys. Knowing what I do will hurt me for the rest of my life.”
Susan Blake, Joseph McStay’s mother called Merritt a “despicable, evil monster… a lowlife coward and baby killer. You deserve the verdict the jury came to.” She said she was grateful to the prosecution team and the jurors “that worked so hard to put you behind bars.”
Summer McStay’s first husband, Albert Lagara addressed the court, directing many of his comments toward Merritt after thanking the jury and reminiscing about his ex-wife and recollecting what he felt when he first learned of the family’s disappearance and deaths.
Lagara at several junctures taunted Merritt. “Divine intervention is beautiful, Chase,” he said. Lagara alluded to testimony at trial indicating that Summer McStay had taken a dislike to Merritt from soon after she met him.“Her judge of character was spot on,” Lagara said, “as it was back when we were young.” He then repeated, “Her judge of character was spot on when she met you, Chase, Charles. I guess she didn’t like you, right? I don’t believe she was mean-spirited. She had a need to keep people at arm’s length.”
Lagara said, “When I thought of what to say to you, I thought about being vulgar to you, but you would expect that. You would just sit there looking at me like you were watching TV, still disconnected from what you have done. Then I thought, because of my heart, that I would kill you with kindness, and make a statement that I forgive you. But I’m not able to do that. I don’t forgive you. So, instead I want to psychologically mess you up. Human beings compartmentalize trauma, and I want to wake up that suppression in you. Every time you hear a sound in prison, or in a movie, that is similar to the sounds you made that day when you murdered the family, I hope it rings loud in your ears, and that those sounds haunt you, Chase. I want those sounds to trigger a memory to the point that you are unable to suppress it.”
Banging the side of the lectern violently, Lagara said, “Come on, Chase! Aren’t you tired, man? Aren’t you tired? Just stop all the appeals, all the shenanigans. Don’t worry. Your fate will be way less tragic than that of the family you murdered. No one will cause you the physical pain you caused Joseph or Gianni or Joe, Jr. No one is going to beat you or break your jaw the way you beat Summer and broke her jaw, my ex-wife. No one is going to beat you. You will just slip into unconsciousness. Be brave. Ask for forgiveness from the only entity that can give it to you, and that is God, Almighty.”
Michael McStay, Joseph McStay’s brother said, “November 13, 2013 left a mark. That was the day Sergeant [Ryan] Smith and Detective [Joseph] Steers told me they had found the box [i.e., bodies]. The jury has spoken and even though the darkness in this man tried to overcome my family, the light will always overcome the darkness.  My family – my mother – lost a son, a daughter-in-law and two grandsons. Having to watch my mother bury them [is] so unnatural. Not natural causes. There was intent here. It was disturbing, devastating. My nephew had to grow up without a father, though he had one heck of a stepdad. It didn’t just mark me that day. It marked my kids. They were stolen from us. This world was robbed of four beautiful souls. I looked up to my brother. I’ll never get another conversation with him. No more surfing. No more anything. This whole thing is a bad deal. I’m not a gambler, but this is a pretty poor exchange rate. We lost four beautiful souls for one to remain, a man that is heartless, that is the face of evil. He’s unrepentant. He lacks a conscience. He is conscience-deprived. He is unapologetic. He is merciless. He was a lifelong criminal, but I won’t waste any more time on him.”
Pointing to the four members of the jury that were present in the court room, Michael McStay said, “They have spoken,” and then appealed to Judge Smith, “I’m asking you not to reduce the sentence.”
Michael McStay’s wife, Ellen McStay, saying she was speaking as the wife of Michael McStay and as “an unashamed follower of Jesus,”  lamented “what could have been because of the choice you, Chase Merritt, made to brutally murder my husband’s family. We are forced to live in the continuous what-could-have-been state of loss.
There is really no way to explain the impact the horrendous violent crimes the murders of the family has had on our lives and lives of all of our family.”
She lamented “the gruesome and brutal details of the crimes you committed. It is not just a Netflix documentary to us. The details are shocking and nauseating to sit through.”
She said Merritt was a “coward. Being in your presence in this courtroom caused great anxiety for me. I’ve never been exposed to such an evil person in my presence. You brought evil into our world.”
Jonah McStay, Joseph McStay’s son by his previous marriage, told the court that he had “lived in the shadow of losing my father, stepmother [and] two little brothers. Sometimes just seeing another boy with their dad reminds me of the tremendous loss I have endured. I fight each and every day to mend the wounds left by someone who instead of healing, sought to destroy others for their own personal gain.”
For the first time in trial other than in response to questions that had been posed to him at times by the judge with regard to his assent to waivers or other procedural issues, Merritt spoke. Though audio recordings and video recordings of his statements during his interrogations by sheriff’s detectives from both the San Diego County and San Bernardino County sheriffs’ departments had been heard during the trial, his pre-sentencing statement provided his most extensive and direct participation in the proceedings that ended with his conviction and consignment to death. At times, his emotion nearly overcame him, and he was lachrymose during much of his oration, which consisted primarily of his reading from a narrative he had previously prepared, which he twice seemed to briefly depart from. Much of his statement consisted of remarks made directly to Susan Blake, Joseph McStay’s mother, and Michael McStay, Joseph McStay’s brother, both of whom testified at the trial.
“I would like to say I am so very sorry for Joseph’s, Summer’s, and Joseph Jr.’s family, and Gianni’s,” Merritt said. “No mother or dad should have to bear the pain of losing their son or daughter. No brother or sister should be deprived of their lifelong relationship with their sibling. Their family lost so much that is unmanageable. In this setting, in which the loved ones’ feelings in which they finally found justice, I’m conflicted in addressing the issues that I have to here. After hearing your statements and knowing you feel justice was done here, part of me wanted to just stay silent, at least for a while. The thing that is bringing you this solace is ending my life, ending my life for a crime I did not commit. I loved Joseph. He was a big part of my life, and my family’s life. I would never have hurt him in any way. I would never raise my hand to a woman or a child. I did not do this thing. I know you do not believe this, and that’s what kills me. But I believe if you were to look deep into what has happened here, in this courtroom in the last five years, you’d have to recognize that something, something is amiss, something is wrong. This prosecution team without any care whatsoever has used you and others to accomplish their goal. They convinced you I did this thing. I know that, and honestly, if I lost a son, brother or daughter, grandchildren to such a cowardly act and genuinely believed what the detectives and prosecutors were telling me, that we have the man who did it, I would likely do as you have.  But Miss Blake, Michael, the things you told the jury, they were untrue. They were not unconsequential. They helped get me convicted. I hope someday you can ask yourself, someday, the question: ‘Why would the prosecutor need these false statements from you if indeed they had the evidence proving my guilt?’ What you witnessed throughout this trial was fabricated. And, as I said, I can’t feel angry for your participation in my conviction. If I were in your shoes, I might have done the same. I do, however, have the utmost disdain for the people who put us all in this courtroom. This prosecution team without concern of the consequences systematically manipulated the evidence in this case to unrecognizable and malicious assault I never would have thought possible, and in doing so knew the person or people responsible for this heinous act are still free, all to simply get a win. Their theories throughout trial have been a target that moves opportunistically when confronted by contrary evidence, like when Mr. Imes [lead prosecutor Supervising Deputy District Attorney Britt Imes] stated, ‘I believe the family was murdered in the house and to not believe that you’d have to ignore the evidence.’ And the next day, the following day, Miss Rodriguez [Deputy District Attorney Melissa Rodriguez] stated, ‘We never said they were killed in that house.’ These prosecutors resorted to inflammatory rhetoric, brought out prejudicial and inadmissible statements in the guise of questions, suborned perjury, misled witnesses, including you, Michael [McStay], and you, Susan [Blake]. They did these things to keep consistently before the jury the assumption of damaging facts, which they knew could not be proven, which they knew were false. Then, of course, there’s the court, who let this misconduct permeate the trial. A judge who was so set on ending the trial, abdicated his role by telling counsel on both side he could not stop the trial and have hearings on misconduct because, ‘I’m going to… I’m going to let the next court deal with it.’ What is most troubling, however, is that after my penalty phase verdict was read, the judge still had to decide my fate as to whether I live or die, entered the jury’s chambers with Joseph and Summer’s family and had intimate contact with them. This, prior to deciding my fate in the motion for a new trial, as the 13th juror. Indeed the jury room was full of high-fives, hugs and congratulatory remarks. When I was told of this behavior, which included the court as well as prosecutors, it reminded me of a story I once read of a photographer who photographed soldiers flashing thumbs up behind a pile of their victims. As he looked on, he said, it was so jarring that for a few seconds he took it for a montage. But yet, there was something familiar about that scene. Then he remembered the last time he had seen a scene like that was in photographs of lynchings. I’m sure this is not the first time anyone or all of these prosecutors egregiously committed fraud upon this and other courts. They are professional liars and likely have been for the better part of their disreputable careers. Your Honor, there are no second acts. Do what is right. Give me the hearing I deserve. I can show you where this trial has failed. Allow me to show the family just what these prosecutors have done. What’s happened here is wrong. It’s taking me from my family, a family that does not deserve this. I may deserve a lot of things. I don’t deserve this. I did not do this. And as God is my witness, I will be back here and prove to everyone that is true.”
Judge Smith said that independently considering and weighing the evidence he had come to the same conclusion as the jury. Signaling that he was ready to pronounce sentence, Judge Smith asked Maline if there was any reason why he should not proceed.
Maline said, “It is our position that there is still legal cause as to why judgment should not be pronounced. Even though the court denied the motion, we still feel that this court should not be sentencing because there is a bias that was pointed out in our moving papers.”
Judge Smith disagreed, saying there was “no legal cause why judgment should not be pronounced.”
Judge Smith then proceeded.
“For the offense of the first degree murder of Joseph McStay, pursuant to the jury’s penalty verdict of life in prison without the possibility of parole, the court will sentence Mr. Merritt to the sentence of life in prison without the possibility of parole for the murder of Joseph McStay,” Judge Smith pronounced, continuing, “The jury having found Mr. Merritt guilty of the first degree murder of Summer McStay and the first degree murder of Gianni McStay and the first degree murder of Joseph McStay, Jr., and the jury having found the special circumstances of multiple murder to be true as to each of the first degree murders as to Summer, Gianni and Joseph Jr., and the jury determining the appropriate penalty verdict to be death for each of the murders of Summer, Gianni and Joseph, Jr., and before having denied the motion to modify the verdict from death to life imprisonment without the possibility of parole, it is therefore the judgment and sentence of this court that for the first degree murder of Summer McStay and for the first degree murder of Gianni McStay and for the first degree murder of Joseph McStay, Jr. that the defendant, Charles Merritt, be sentenced to death, that the penalty be carried out in San Quentin State Prison in the manner then prescribed by law, and at a time to be fixed by this court in a subsequent order of execution after the defendant’s appeals are exhausted, all in accordance with Penal Code Section 3605.”
-Mark Gutglueck

J.R. Allgower is back as the chairman of the Yucaipa Planning Commission.
Allgower, a landowner, real estate broker, builder and developer, was originally appointed to the planning commission in 2013. He acceded to the chairmanship of the commission, but resigned from the panel in February 2017. He was replaced by Jack Masters but was subsequently reappointed to the commission by Councilman Bobby Duncan, reassuming a position on the commission in January 2019.
At the January 21, 2020 planning commission meeting, his fellow commissioners settled on appointing Allgower to serve as chairman a second time.  He was selected to replace Bart Brizzee as chairman.
Allgower did not seek the appointment, instead having seconded Commissioner Kathy Fellenz’s nomination of Brizzee to remain for a second term as chairman. Brizzee is an attorney, one who specializes in land use issues, and is employed with the San Bernardino County office of county counsel, in which capacity he advises the San Bernardino County Land Use Services Department. The move to perpetuate Brizzee as chairman, however, did not succeed when Brizzee did not support his own reappointment and no others beyond Allgower and Fellenz supported his reappointment, either.
Thereafter Commissioner Denise Work nominated Allgower to serve as chairman. Allgower prevailed in that vote 5-to-2, with commissioners Felenz and new commissioner Steven Shaw dissenting. After Fellenz made her second nomination of the night for Brizzee, this time for vice-chair, it passed 7-to-0.
The evening’s voting took place after Shaw was sworn in to replace former Commissioner Aron Wolf.
Councilman Bobby Duncan told the Sentinel that Allgower’s return to the position of planning commission chairman was independent from and unrelated to the recent reorganization of the city’s management, which included the revamping of the city’s planning division, entailing eliminating the position of director of community development and reallocating the position of associate planner to planning manager/city planner.
“Those were part of the reorganizations that go on from time to time,” Duncan said. “Two people from the city retired. The city lost those two individuals. They held pretty prominent positions. When a city manager loses that much experience, making some changes is understandable.”
Duncan said the city council had no influence over deciding who would serve as chairman of the planning commission, and that the decision on who would serve in that capacity was up that panel’s members.
“He he was appointed by his associates,” Duncan said of Allgower. “His colleagues on the planning commission appointed him back to the chair position. J.R. Allgower has been in the City of Yuciapa for 35 or 40 years and has been very active.  He is the president of the equestrian center, he is a member of the Lion’s Club and is involved in the local business community. He understands what is going on in Yuciapa. He is a good guy. He is an honest guy. He is just an all-around great guy altogether. That is why he was my choice for appointment to the planning commission.”
As to the suggestion that Yucaipa is on the cusp of a development frenzy and that Allgower’s ascendancy to the planning commission chairmanship is intended to advantage him and his business associates as a consequence of his orientation as a pro-development real estate agent who is himself involved in promoting various projects and undertaking others, Duncan said all of that is unrelated to the outside issues pressing the city toward an accommodation of more housing.
“Gavin Newsom, our newly elected governor, has dictated that we develop more housing for obvious reasons and has threatened that if we don’t have more housing the state will take away our authority to zone our own property,” Duncan said. “If we don’t do what we are being asked to do by the state of California, they will take away our land use authority. This is nothing personal against Yuciapa; it is every local jurisdiction in the state. We have been mandated to do more residential zoning. J.R. Algower didn’t come up with that mandate. From here out what we have to do is figure out how we can legitimately zone our property or decide how we are going to work with local property owners to help if we can, or encourage local property owners if we can, and approve their projects in a way that will follow the mandates coming down from the State of California.”
-Mark Gutglueck

For the second time in slightly over two years, the Chino City Council this week by a narrow margin shut the door on Borstein Enterprises in its effort to wring from the city density concessions in its proposal to develop what had formerly been agricultural property just outside the city limits in the remaining swath of unincorporated land between Chino and Montclair within Chino’s sphere of influence.
Borstein had sought previously and once more requested permission to residentially develop the property, which at one time was  a poultry and rabbit farm, at a higher density than is permitted in Chino’s general plan.
More than 25 months ago, Borstein had asked the Chino Planning Commission to consider its proposal to build 43 single-story, ranch-style homes and a neighborhood park on 13.46 acres lying within a pocket of unincorporated San Bernardino County adjacent to the City of Chino at the corner of Francis and Yorba avenues. The property is within Chino’s sphere of influence, and the county had deferred land use authority to the city with regard to it. Under Borstein’s application originally filed in 2016 and considered by the city in 2017, the 13.46-acre parcel was to be annexed into the city, which was necessary so the homes to be developed could connect with the city’s sewer system. Under the city’s general plan, the land is zoned R2, meaning that a maximum of two units per acre were allowed to be built there. Borstein’s request was that the city consent to a zone change that would allow 3.6 units per acre, what under the city’s zoning code is referred to as R4.5, which allows as many as 4.5 units per acre to be constructed on a single acre. Known as Chino Francis Estates, the proposed project is surrounded north, east, south and west by property developed to no more than two units per acre.
On December 4, 2017, the planning commission on a 3-to-2 vote recommended against allowing the project as proposed to proceed. Borstein then appealed that decision to the Chino City Council, which has the authority to second-guess the planning commission.
Under most conditions, the city council does not have the authority to deviate from land use restrictions contained in the general plan. A generation ago, Chino voters passed Measure M, which mandates that if a developer wants to proceed with a project of greater density than provided for in the city’s general plan or zoning codes, the city council does not have, on its own, the authority to accommodate the developer’s request. Rather, under Measure M a majority of voters throughout the city must give their consent for such a project to proceed.
In the case of the property Borstein has sought to develop, however, there is a loophole.
Measure M applies only to property that falls within what was the incorporated borders of the city when the measure was passed in 1988. Borstein’s executives were conscious that the city council as it existed in 2017 had a decidedly pro-development bent. Its five members in December 2017 were Mayor Eunice Ulloa, Tom Haughey, Earl Elrod, Gary George and Dr. Dr. Paul Rodriguez. Of those five, only Ulloa was a stickler for adhering to the guidelines – including those for density – within the city’s general plan. Thus, Borstein’s corporate officers believed they could induce the city council to reverse the planning commission’s decision.
When the matter came before the city council on December 19, 2017, the flow of events appeared to be moving in Borstein’s favor.
Nicholas Liguori, Chino’s director of community development, in a staff report relayed to the city council through city manager Matthew Ballantyne, recommended that the council “overrule the recommendation of the planning commission” and adopt a resolution stating that any environmental impacts from the project were either insubstantial or could and would be mitigated. Liguori further recommended that the council grant the appeal by Borstein Enterprises, doing business as Chino Francis Estates, LLC, such that the San Bernardino County Local Agency Formation Commission be requested to initiate the annexation process, that the tentative tract map be approved along with the site plan and the special conditional permit needed for the project to proceed, and that staff be directed “to negotiate with the County of San Bernardino to increase the amount of property tax retained by the city in non-island annexations.”
The size of 42 of the lots in the proposed project ranged from 8,090 square feet to 10,679 square feet, with a single lot at 16,227 square feet. The size of the homes, which were variously designed in hacienda ranch, California ranch and Spanish colonial styles, ranged from 2,820 square feet in a three-bedroom/2.5 bathroom model to 3,590 square feet in a 5 bedroom/4.5 bathroom model.
Elrod, however, was absent from the December 19, 2017 meeting. Because of previous city resident unrest with regard to the city council’s disregard for the provisions of Measure M as applied to land in the city’s sphere of influence outside the city limits that would subsequently be annexed into the city and involve property built to a greater density than exists in neighboring properties already in the city, George proved unwilling to support the increase in density Borstein was requesting, a significant departure from the pro-development attitude he was previously recognized as having evinced.
Rodriguez made a motion to approve the staff recommendation to overturn the planning commission’s denial of the project.
Haughey, curiously, did not second Rodriguez’s motion, anticipating that George would do so. When George did not, Rodriguez’s motion died for lack of a second.
Thereafter, Ulloa made an alternative motion to uphold the planning commission’s denial of the application. At that point, George seconded the motion, tacitly making a break with the pro-development wing of the city council. The vote on that motion ended in a 2-2 deadlock, with Ulloa and George voting in favor of it and Rodriguez and Haughey opposed.
For Borstein, Elrod’s absence that evening  thus proved crucial. With the council vote having ended in a tie and no majority vote to overturn it, the planning commission decision to deny the project remained operative.
Having waited a decent interim, Borstein revived its proposal. This time around, there were some relatively minor changes, one being that the property to be developed was shown as 13.35 acres rather than the 13.46 specified in 2017, and the number of homes to be built was reduced from 43 single story homes to 39 single story homes, together with an increase in the average lot size, an increase in the side yard setbacks on some of the lots to support recreational vehicle parking if desired by future homebuyers.
As it turned out, in thismost recent go, the planning commission, which on November 18, 2019 considered the revamped proposal, reversed itself from its 2017 decision, voting 4-to-3 in favor of the project.
The matter of the revamped Chino Francis Estates project thus came before the city council this week for approval as a legislative action relating to its prezoning and annexation, the approval of a general plan amendment required to allow the greater degree of density than is foreseen in the city’s general plan and an associated mitigated negative declaration. A mitigated negative declaration is the decision-making body’s official assertion that any negative impact on the local environs by the development will be mitigated by measures required pursuant to the project’s approval.
Since 2017, Elrod and George have left the council. They have been supplanted by Mark Hargrove and Marc Lucio.
Borstein indicated the 39 single-family, single-story homes featuring variously four or five bedrooms would be constructed on lots ranging from 8,130-square-feet to 16,920-square-feet, with an average square footage of 10,000-square-feet.
The project as proposed calls for a density of 3.2 homes per acre, but for the city to approve the project it had to up the existing zoning, which allows two units per acre, to the next level on the city’s density scale, which is 4.5 units per acre.
Borstein said the asking price on the models would range between $805,000 to $960,000. Borstein said the development would also entail a 14,953-square-foot private park recessed into one of the corners of the development.
More than three dozen residents living near the project, living both within the city limits and just outside them, held forth with regard to their perspective on the proposal. Some supported it. Others did not.
Supporters said the upscale homes would improve the area, and modernize it with sidewalks and curbs. They said just over three units to the acre would be preferable to the potential that higher density homes or apartment complexes could be built there to meet state mandates for affordable housing to be built in Chino.
Opponents of the project, including members of Protect Chino, a grassroots group advocating for livable neighborhoods, said the project would destroy the area’s quaint rural nature, increase traffic on surrounding streets, worsen flooding and encourage other developers to seek further density concessions from the city.
Councilman Hargrove expressed concern and discomfort over altering the standards of the general plan for the project. He indicated he did not believe there was yet indication of a consensus within the community to allow the change in density and change to the general plan that Borstein was requesting without hearing more input from the community.  Hargrove also expressed the misgiving that if the city were to grant the general plan amendment to approve the project, that would imply the zone uprating to 4.5 units to the acres. Thereafter, he indicated, Borstein might flip the property to another developer with the entitlement to build yet intact, and that developer might then insist on increasing the density to the maximum, that is, 4.5 units per acre. City staff said a new development proposal from a different developer would likely require a new approval process.
Councilman Haughey said the project stood on its own merit and Councilman Rodriguez, while referencing state mandates that cities approve “affordable” housing, suggested the city might get in Dutch with the state if it didn’t approve this housing project, ignoring the price tags on the homes.
Councilman Lucio questioned whether it wouldn’t make more sense and be more cost effective for the city to annex the entire area north of the city in one fell swoop to be able to deal with infrastructure issues in a coordinated fashion rather than in making piecemeal annexations.
In a 3-to-2 decision, with Ulloa, Hargrove and Lucio prevailing and Haughey and Rodriguez dissenting, the council voted to overturn the Chino Planning Commission’s recommendation for approval and reject city staff’s recommendation to let the Chino Francis Estates development proceed. Ulloa, Hargrove and Lucio enunciated their collective belief the city should stand by the standards in the Chino General Plan, and keep the two homes per acre designation for the property at Yorba and Francis avenues in place.
-Mark Gutglueck

The California Supreme Court has responded positively to a petition the San Bernardino County Office of County Counsel filed on January 17, asking that Third District Supervisor Dawn Rowe be allowed to remain in office while the Fourth District Court of Appeals makes a determination about the soundness of a San Benrnardino Superior Court Judge’s order that her current tenure in office be annulled.
Rowe is now involved in an election campaign to remain in the Third District supervisorial position to which she was appointed in December 2018, and from which she oversees that portion of the county encompassing Barstow, Johnson Valley, Twentynine Palms, Joshua Tree, Morongo Valley, Yucca Valley, Yuciapa, Big Bear and its surrounding eastern San Bernardino Mountains communities, Mentone, Oak Glen, Redlands, Loma Linda, Highland, east San Bernardino and  Grand Terrace. She is the odds-on favorite to win that race in which she is competing  against Kaisar Ahmed, Karen Ickes, Latron Lester and Eddie Tejeda. Available campaign finance documentation shows Rowe enjoys a sizable fundraising advantage over all of her opponents, with more than 33 times as much money to spend on her campaign than all of the others combined. As of earlier this month, she had $190,492.69 in her electioneering fund.  As of last week, Ickes had $1,000 at her disposal for her supervisorial run. Ahmed’s campaign filings two weeks ago gave no indication of how much money his campaign has on hand. Similarly, Lester’s filings show no money in his campaign account. Tejada, who is a city council member in Redlands, as of December 31, had $4,750 in his political war chest.
For most political observers it is a foregone conclusion that Rowe will be elected to serve as Third District supervisor this year in the term running from 2020 until 2024, with the only question being whether she will win outright during the presidential primary balloting on March 3 with a majority of the votes or whether she will need to head into a November run-off against whoever captures second place if she can’t accumulate 50 percent of the vote five-and-a-half weeks from now. Still, there remains a strong question as to whether she can legally hold claim to the Third District supervisor’s post at present. Her claim to that spot has been under challenge, since literally before her appointment.
The last undisputed holder of the Third District supervisor’s mantle was James Ramos, who was elected to the post in 2012 and then reelected to it in 2016. In 2018 Ramos successfully vied for the California Assembly in the 40th District. In seeking someone to serve out the two years remaining on Ramos’s term, the board of supervisors settled on Rowe. In so doing, it used a selection process that invited residents of the Third District who were registered to vote to apply, which attracted 48 qualified applicants. Without explaining or disclosing its criteria in doing so, the board then eliminated in one swoop 35 of the applicants, reducing the field to former Third District Supervisor Dennis Hansberger, Republican Central Committee Chairwoman Jan Leja, Loma Linda Councilman Ron Dailey, former San Bernardino Councilman Tobin Brinker, Barstow Mayor Julie Hackbarth-McIntyre, former Twentynine Palms Mayor James Bagley, former Yucca Valley Councilwoman Dawn Rowe, former Westlake Village Mayor Chris Mann, former Chino Councilman/current Big Bear Councilman William Jahn, then-San Bernardino Mayor Carey Davis, former Assemblyman/State Senator Bill Emmerson, former Congressional Candidate Sean Flynn and Loma Linda Mayor Rhodes Rigsby. Twelve of those 13 were Republicans, with Dailey being the only Democrat. That heightened the alarm level of several Democratic Party activists, who were already on alert to whatever powerplays the board – at that point dominated by Republicans Curt Hagman, Robert Lovingood and Janice Rutherford – were ready to pull off. After interviewing the 13 candidates they had initially selected, the supervisors then in private reduced the field to to five Republicans: Emmerson, Flynn, Jahn, Rigsby and Rowe. This was done without disclosing how the board had arrived at those five selections. This threw two Democratic party operatives, Ruth Musser-Lopez and Michael Gomez Daly into political DEFCON 1.
Musser-Lopez on the evening of December 11 fired off a letter to the board and County Counsel Michelle Blakemore through the clerk of the board, reiterating her objections in writing, and labeling it a “complaint.” In the letter, she asserted, “On December 10-11, 2018, you the members of the county board of supervisors in concert and individually violated the Ralph M. Brown Act specifically CA Gov. Code, § 54953.5 when you did cast preliminary votes secretly, without a process agreed upon by the public and without publicly disclosing the votes of the individual supervisors to the public.” She said that “the public was left out of the selection process, some applicants were not invited to address the board and were not allowed equal time, and due to the illegal polling, board members knew which applicants were ‘winning’ prior to their vote.” Musser-Lopez said this led to the board members “knowing in advance which applicants were preferred by the other members” and “wrongfully influencing their vote without public knowledge or intervention,” such that “a majority of the board” had been able to illegally “develop a collective concurrence as to action to be taken” and had furthermore engaged in private communications with one another through the use of secret ballots that were tantamount to a “serial meeting,” which is also outlawed by the Brown Act, which is California’s open public meeting law.
Musser-Lopez demanded that the board of supervisors cure the violation by voiding the December 11 vote and voiding “any other serial votes by members of the board of supervisors on December 10 and 11, 2018 and that to be voted on December 13, 2018 pertaining to the selection of a replacement supervisor for the 3rd District.”
The letter panicked the board of supervisors into canceling the interviews of Emmerson, Flynn, Jahn, Rigsby and Rowe scheduled for the morning of December 13, 2018. The board did, however, reconvene on December 18, 2018, at which time it picked up where it had previously left off, and conducted second interviews with Emmerson, Flynn, Jahn, Rigsby and Rowe. That same day, Michael Gomez Daly, acting as the executive director of the Democratic Party-affiliated political advocacy group I.E. United, sent the board of supervisors a letter requesting that the board rescind its previous action and reinitiate the process by interviewing all of the candidates. The board carried on with the process over Daly’s objection.
At the prompting of the only Democrat on the board, Josie Gonzales, the board also consented to hearing from Chris Carrillo, Ramos’s one-time deputy chief of staff who had applied for the post and whom the board had overlooked previously and who had not been among the 13 originally interviewed. The process, which was heavily stacked in favor of Rowe from the outset, concluded after the interviews with the six were completed. Lovingood immediately nominated Rowe.
Bowing to the inevitable, and realizing that Rowe’s selection was unstoppable and that she would need to work with her future colleague going forward, Gonzales joined with the remainder of the panel to make Rowe’s appointment unanimous.
After Rowe’s elevation, both Musser-Lopez and Daly, in his capacity as the executive director of I.E. United, an entity affiliated with the Democratic Party, filed separate lawsuits, claiming the board had not corrected the violations of the Brown Act before proceeding with its selection of Rowe, had engaged in a secretive voting process including serial meetings in the bypassing of 35 of the candidates, and had conducted what was supposed to be an inherently public process behind closed doors.
Ultimately, the lawsuits were routed to the courtroom of Judge Janet Frangie, herself a Democrat. Both suits were eventually set for trial before Frangie, who subsequently ruled in favor of the county to dismiss Musser-Lopez’s suit for not being timely filed.
Daly’s suit, however, remained alive and after months of legal wrangling between the county’s office of county counsel and Daly’s lawyers, Frangie ruled in favor of Daly, concluding, “1) The process by which Dawn Rowe was selected to the San Bernardino County Board of Supervisors violated the Ralph M Brown Act. 2) Respondents failed to cure and correct their violations of the Brown Act. 3) The appointment of Dawn Rowe as Third District Supervisor is null and void. Respondents and each of them shall rescind the appointment of Dawn Rowe as Third District supervisor. Pursuant to [the] board’s charter, the appointment of the Third District supervisor shall be made by the governor.”
Governor Gavin Newsom is a Democrat.
The county appealed Judge Frangie’s ruling to the Fourth District Court of Appeal.  In November, in response to requests that Rowe be barred from acting as supervisor while the appeal process is ongoing, the Fourth District Court of Appeal granted what in legal terms is called a “writ of supersedeas,” which imposed a stay on Judge Frangie’s finding that Rowe’s appointment was null and void as well as the resultant order that she be removed from office.
On Wednesday, January 8, the appellate court reversed its November decision that was permitting Rowe to continue in the role of supervisor.
The county then filed a petition with the Supreme Court on January 17, seeking clearance for Rowe to continue in the capacity of appointed supervisor while the appeal moves forward. Yesterday, Thursday, January 23, the California Supreme Court issued a directive that Judge Frangie’s order be placed on hold.
Thus, it appears that Rowe will yet hold, tenuously, the position of Third District supervisor when the March 3 election is held. This is of some consequence because the ballot describes her as the incumbent. If Judge Frangie’s ruling yet applied, Rowe’s political opponents would be able to assert, if she indeed prevails in March, that she was elected under false pretenses.
Rowe remaining in office holds further political significance. Upon assuming office, Rowe over the last week of 2018 and into January 2019 hired as her staff members three individuals – Suzette Swallow, Dillon Lesovsky and Matt Knox – who had been heavily involved in electioneering efforts for Republican candidates in the past. Word spread that Knox, as Rowe’s chief of staff, Lesovsky, as Rowe’s policy advisor, and Swallow, as Rowe’s communications director, were actually in place to ensure her election in 2020, as well as to work on behalf of other Republican candidates in the same election cycle, including Congressman Paul Cook, who is running for supervisor in the county’s First District, and 33rd District Assemblyman Jay Obernolte, who is running to replace Cook as Congressman in the 8th Congressional District. The status that Swallow, Lesovsky and Knox have as employees of Rowe’s office provides them with agency-to-agency privilege. Agency-to-agency privilege includes the free exchange of information between various levels of government, federal, state and local, often including information gleaned from law enforcement data bases. Such information can be useful for political operatives such as Swallow, Lesovsky and Knox in their political campaign work. While the sharing and use of such information for partisan political purposes is illegal, as is the use of government facilities and equipment, enforcement of those restrictions are difficult and highly unlikely given the power, autonomy and authority holders of elected office possess.
While the activity Swallow, Lesovsky and Knox are engaged in is known to the members of the board of supervisors as well as County Chief Executive Officer Gary McBride, Deputy Chief Executive Officer Leonard X. Hernandez, County Counel Mchelle Blakemore and other top county staff members, the will to counteract what is going on in that regard has yet to hit a critical level by which a move to stop it has taken place. Rowe’s prospect of prevailing in the supervisor’s race is a major factor discouraging county employees from taking action with regard to the matter.
There is nevertheless precedent in the county for law enforcement agencies stepping in to curtail such bold use of county facilities and governmental authority by powerful personages for electioneering purposes. In 2009, then-County Assessor Bill Postmus was arrested and eventually prosecuted for utilizing the assessor’s office for partisan political campaign efforts. Previous to being assessor, Postmus had been First District supervisor, including a two-year stint as the chairman of the board of supervisors. He was also the chairman of the San Bernardino County Republican Central Committee.
-Mark Gutglueck