10:49 PM PDT on Wednesday, September 15, 2010

By IMRAN GHORI
The Press-Enterprise

A San Bernardino County judge tossed out more than half of the corruption charges against former Assistant Assessor Jim Erwin on technical grounds Wednesday, a ruling that his defense attorney described as a significant setback for prosecutors.

Erwin and former Assessor Bill Postmus are accused of conspiring through bribery and extortion to gain the county’s approval of a $102 million lawsuit settlement with Rancho Cucamonga developer Colonies Partners in November 2006.

Judge Duke Rouse granted an objection by Erwin’s attorneys to five of the nine felony counts against Erwin. He found that some of the charges against Erwin did not apply, because he was not a public official at the time of the settlement and the time to file charges had expired.

Rouse left the door open for state and local prosecutors to restore the charges by amending the criminal complaint at an Oct. 8 hearing.

Deputy District Attorney Lewis Cope said prosecutors intend to do so and don’t expect the ruling to hurt their case. He said prosecutors will look to the judge’s ruling and state law as they evaluate how to rewrite the charges.

“We’re not particularly concerned,” Cope said. “These are very technical issues that are easy to overcome. The net impact of the ruling in the end will not be very significant.”

Erwin’s attorney, Rajan Maline, disagreed.

“The heart of this case has been thrown out,” he said

In February, Erwin was charged with one count of conspiracy, two counts of bribing a legislator, two counts of bribery, two counts of extortion, one count of misuse of public funds, and one count of forgery.

With the Wednesday ruling, the two counts of bribery, two counts of extortion and one count of misuse of public funds were thrown out.

Postmus joined in seeking the demurral but Rouse kept all five charges relating to the Colonies case against him. He is charged with one count each of conspiracy, seeking a bribe, bribery, conflict of interest and misuse of public funds.

Erwin and Postmus have pleaded not guilty and Colonies has denied the allegations.

Rouse’s motion sustaining the demurral centered on two main points. One involved a three-year statute of limitations over the extortion and misuse of public funds charges and the other centered on a section of state law that allows for an extension in crimes involving public officials.

The Colonies settlement was approved in November 2006 and the charges filed in February of this year, three months past the statute of limitations.

Erwin’s attorney, Steve Harmon, said the extension of the statute of limitations to charge Erwin could not apply because he was not a public official at the time of the settlement.

At the time, Postmus was chairman of the Board of Supervisors and Erwin was a consultant for Colonies. Postmus took over as assessor in January 2007, bringing in Erwin as his assistant assessor.

Deputy Attorney General Emily Hanks argued the law states that he need not be a public official, “it merely requires the basis of the crime be public misconduct.”

But Rouse said the section of the code is clear in applying to public officials, appointees or employees.

“I really think you have a statute problem,” he said.

Maline said the ruling makes it unlikely that prosecutors can find a way to charge Erwin with the extortion and misuse of public funds charges.

“They’re gone,” he said. “They can never be brought back.”

Cope said he could not say whether all the charges would be restored.

On the two bribery charges, Maline argued that the complaint was flawed, because prosecutors failed to describe the specific actions by Erwin involving bribery that would allow him to prepare a proper defense.

Prosecutors conceded technical flaws with those two charges but called it a minor issue.

“We’re pretty confident we’re going to be able to go to court on the eighth of October with an amended complaint and fix this technical error,” Cope said.

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