10:21 PM PDT on Wednesday, June 30, 2010

The Press-Enterprise

A San Bernardino County Superior Court judge declared a mistrial Wednesday in the criminal corruption case against Rancho Cucamonga Councilman Rex Gutierrez after a jury deadlocked on a verdict.

In a brief comment as he left the courtroom, Deputy District Attorney John Goritz said the office plans to retry Gutierrez.

“We remain confident in our case, and we’re looking forward to the retrial,” Goritz said.

Jurors deliberated three days before telling Judge Duke Rouse that they were at an impasse and unable to agree on three felony charges against Gutierrez.

He faces two counts of grand theft and one count of filing a false claim. Rouse dismissed a fourth count, embezzlement of public funds, on Thursday.

The forewoman told Rouse the jury voted 9-3, 8-4, and 7-5 on the three counts but on his instructions did not reveal the vote for each specific count and which way they leaned.

Gutierrez, 50, sat with his hands clasped in front of him and a small smile after Rouse declared a mistrial. He and his attorney, James Reiss, left the courtroom shortly afterward.

Reiss said later by telephone that Gutierrez felt relieved and vindicated, in part, but disappointed that he would face trial again.

“He’s going to stand tall and he’s going to stare them in the eye again and say, ‘You know what, we’re going to plead not guilty,’ ” he said.

The judge set a court date for next Wednesday to determine the next steps in the case and possibly set a date for a retrial.

Outside the courtroom, two jurors said a majority of them favored conviction on three counts.

“I thought it was pretty straightforward, myself,” said one juror who said she voted in favor of conviction.

She declined to give her name.

Another juror, Ryan Johns, a San Bernardino resident, said he also favored conviction.

“The majority of us did feel there was a conspiracy, but the question was how it was tied together,” he said.

Gutierrez’s trial was the first following a two-year district attorney’s investigation of the assessor’s office under former Assessor Bill Postmus.

Gutierrez and Postmus are among five former assessor’s officials facing charges.

Prosecutors alleged that Postmus gave Gutierrez his $65,000-a-year job as intergovernmental relations officer in March 2007 because of the political influence of Rancho Cucamonga developer Jeff Burum, whose projects Gutierrez supported on the City Council.

Gutierrez is accused of defrauding county taxpayers for 22 months by turning in time cards for a full day’s work though he was often absent conducting city business.

The councilman said the appointment came legitimately and he was allowed to work a flexible schedule.

Gutierrez moved over to the county Economic Development Agency in January 2009 but was fired five months later when the allegations about him surfaced in a county investigative report.

Burum has not been charged and has denied he influenced Postmus’ decision to hire Gutierrez.

He invoked his Fifth Amendment protection against self-incrimination when called to testify.

Richard Grenell, a Burum spokesman, said in an e-mail statement that the mistrial cast serious doubts about the justification for the investigation.

“This whole investigation is a witch hunt — a politically driven effort to look for far-fetched crimes of conspiracy that in truth never happened,” he said.

Over six days of testimony during the two-week trial, co-workers and supervisors testified Gutierrez often came in late, left early and was heard and seen doing city business.

A district attorney’s investigator testified that Gutierrez’s city expense forms showed him at city events for days he claimed he was in the office or called in sick.

Adam Aleman, a former assistant assessor under/ Postmus, testified that as Gutierrez’s supervisor, he had little control over him because Postmus did not want to displease Burum.

Reiss made Aleman’s credibility an issue in the trial, noting that he had also been charged in the investigation and testified as part of a plea deal with prosecutors.

During his day-and-a-half on the stand, Gutierrez testified that he got the job on his merits and made up his time by working at home.

He also faced tough questioning from Goritz about whether he knowingly lied on his time cards.

Johns said jurors felt Gutierrez was not always believable when confronted with inconsistencies.

“He couldn’t come out with a straight answer,” he said.

For those favoring acquittal, the fact that supervisors’ reviewed and approved Gutierrez’s time cards was a key issue, Johns said.

“That was his authorization to pretty much go to these city meetings,” he said, describing those jurors’ view.

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