Prosecutors in the Colonies corruption case make their way to the courtroom on July 28 at San Bernardino Superior Court. )Micah Escamilla — staff photographer)

By Joe Nelson, The Sun
Posted: 08/06/14, 11:36 AM PDT | Updated: 8 hrs ago

SAN BERNARDINO >> A Superior Court judge on Wednesday ruled that the defendants in San Bernardino County’s Colonies corruption case can stand trial for bribery but dismissed some charges alleging conflict of interest, failure to report income and perjury.

In a blow to the defense, Judge Michael A. Smith ruled that there was sufficient evidence to prosecute Rancho Cucamonga developer Jeff Burum for allegedly aiding and abetting in a bribery scheme to bilk taxpayers out of $102 million in a November 2006 legal settlement between the county and Burum’s investor group, Colonies Partners LP.

But Smith also ruled that contributions to political action committees cannot be considered income, and therefore dismissed charges against former Assistant Assessor Jim Erwin, former county Supervisor Paul Biane and Mark Kirk, former chief of staff for county Supervisor Gary Ovitt, alleging perjury and tax fraud for failing to report $100,000 campaign contributions, which prosecutors allege were bribes, as income.

All four defendants deny any wrongdoing.

Smith also rejected a defense motion to dismiss charges of misappropriation of public funds against all four defendants, ruling that the Grand Jury findings support the charges. He dismissed conflict-of-interest charges against Burum and Erwin because they could not be considered public officials at the time of the alleged crimes.

Smith also rejected a defense motion to dismiss the case on grounds of prosecutor misconduct. Defense attorneys allege a search by district attorney’s investigators of the El Segundo-based private investigation firm Thomas Dale & Associates in January 2013 was an invasion of the defense camp that infringed upon the defendants’ attorney-client privilege.

The raid at the firm was in connection with a phone-hacking investigation involving Colonies key witness Bill Postmus, the former county assessor who was chairman of the Board of Supervisors in November 2006 when he voted in favor of the landmark Colonies settlement. Postmus has pleaded guilty to the charges and has agreed to assist prosecutors in exchange for leniency.

Smith determined that the search was in the public interest and lawful and that investigators utilized a special master during the search.

“There was no intent to harm the defendants or to gain any unfair advantage to gain any privileged information,” Smith said during Wednesday’s proceedings. He rejected the defense motion, determining there was “no harm or prejudice to defendant.”

The November 2006 settlement for $102 million ended more than five years of legal battles over land-use rights at the Colonies 434-acre commercial-residential development in Upland.

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