This morning Superior Court Judge Duke D. Rouse dismissed one felony count against Rancho Cuamonga City Councilman and former Assessor employee Rex Gutierrez,

During preparation of jury instructions defense attorney Jim Reiss made a motion to dismiss count three of the complaint for Embezzlement by a Public Officer (Penal Code Section 424). Reiss argued Gutierrez’s duties and responsibilities did not subject him to penalty under the law.

Prosecutors argued Gutierrez had authority to approve his own payroll and also fell under the definition of a public officer. Prosecutors actually attempted to say that all public employees working in positions approved by the Board of Supervisors actually fall within the definition of  a “Public Officer” under California law, which simply isn’t the case.

After reading applicable case law, Rouse agreed with Reiss.

The dismissal leaves only two counts of Grand Theft related to alleged time card fraud and one count of Filing a False Claim related to a mileage reimbursement while. The charges stem from Gutierrez’s employment under Assessor Bill Postmus.

Opening argument is expected to commence this afternoon.