People v. Biane , 58 Cal. 4th 381 ( 2013 )

Filed 12/23/13
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Appellant, )
) S207250
v. )
) Ct. App. E054422
PAUL ANTOINE BIANE et al., )
) San Bernardino County
Defendants and Respondents. ) Super. Ct. No. FSB1102102
___________________________________ )
)
MARK KIRK, )
)
Petitioner, )
)
v. )
)
THE SUPERIOR COURT OF ) Ct. App. E054735
SAN BERNARDINO COUNTY, )
)
Respondent; )
)
THE PEOPLE, )
)
Real Party in Interest. )
)
)
JAMES ERWIN, )
)
Petitioner, )
)
v. )
)
THE SUPERIOR COURT OF ) Ct. App. E054737
SAN BERNARDINO COUNTY, )
)
Respondent; )
1
)
THE PEOPLE, )
)
Real Party in Interest. )
)
)
JEFFREY BURUM, )
)
Petitioner, )
)
v. )
)
THE SUPERIOR COURT OF ) Ct. App. E054738
SAN BERNARDINO COUNTY, )
)
Respondent; )
)
THE PEOPLE, )
)
Real Party in Interest. )
)
An indictment charged defendants Jeffrey Burum and James Erwin with aiding
and abetting the receipt of bribes by members of the San Bernardino County Board of
Supervisors and with conspiring with those supervisors and others to have them accept
bribes in exchange for the supervisors‘ approval of a $102 million payment to settle
litigation between Burum‘s company and the County. The People intended to prove that
Burum (the payor of the bribes) and Erwin (acting as Burum‘s agent) used threats,
intimidation, and coercion to encourage the supervisors to accept the illegal payments.
The Court of Appeal sustained Burum‘s demurrer to four counts of bribery and the
related target crimes charged as part of the conspiracy on the ground that the payor of a
bribe, as a matter of law, cannot aid and abet the receipt of the same bribe or conspire to
commit that offense. The Court of Appeal sustained Erwin‘s demurrer to two of the
bribery charges and the related target crimes charged as part of the conspiracy on the
ground that Erwin, as Burum‘s agent, ―would stand in defendant Burum‘s shoes.‖
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We conclude that the Court of Appeal erred. Although neither the offer nor
payment of a bribe in itself can establish that the offeror aided and abetted the separate
crime of receiving the same bribe, the status of being the offeror or payor of a bribe does
not disqualify that person, as a matter of law, from complicity in the offense of receiving
the bribe. Whether the offeror is guilty of aiding and abetting the receipt of the bribe
depends on whether there is evidence that, in addition to the offer or payment of the
bribe, the offeror ― ‗with (1) knowledge of the unlawful purpose of the perpetrator; and
(2) the intent or purpose of committing, encouraging, or facilitating the commission of
the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission
of the crime.‘ ‖ (People v. Gonzales and Solis (2011) 52 Cal. 4th 254, 295-296.)
Similarly, being the offeror or payor of a bribe does not disqualify that person, as a matter
of law, from culpability for participating in a conspiracy to accept that same bribe.
Because the Court of Appeal sustained the demurrer based on its incorrect
understanding of the law, we reverse that part of the judgment of the Court of Appeal and
remand for further proceedings.
BACKGROUND
On May 9, 2011, a grand jury issued a 29-count indictment against Paul Biane, a
member of the San Bernardino County Board of Supervisors; Mark Kirk, chief of staff
for a different member of the Board of Supervisors; defendant Jeffrey Burum, a general
partner in Colonies Partners, L.P. (Colonies); and defendant James Erwin, who was an
agent for Burum. The indictment alleged that these individuals conspired together with
William Postmus, who was the Chairman of the Board of Supervisors and who has
already pleaded guilty and agreed to aid the prosecution, to settle a lawsuit brought by
Colonies against San Bernardino County (County) on terms favorable to Colonies in
exchange for a contribution of $100,000 each to political action committees controlled by
Biane, Kirk, Erwin, and Postmus. Among other charges, the indictment accused Burum
and Erwin of conspiracy to accept bribes to influence the vote of a public official (Pen.
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Code, §§ 86, 165), to misappropriate public funds (Pen. Code, § 424), to commit a
criminal conflict of interest (Gov. Code, § 1090), and to improperly influence a
legislative action (Gov. Code, § 9054) (count 1; Pen. Code, § 182, subd. (a)(1)), and of
aiding and abetting the acceptance of bribes by Postmus and Biane (counts 4, 5, 7, and 8;
Pen. Code, §§ 86, 165).
According to the indictment, Colonies is the owner of a 434-acre parcel of land in
Upland that was intended for residential and commercial development. The parcel
includes a 67-acre flood control basin over which the County had asserted easement
rights. Colonies spent $23.5 million on flood control improvements and requested that
the County reimburse those costs. When the County declined, asserting that the 67-acre
basin itself was sufficient for flood control without improvements, Colonies sued the
County in March 2002, challenging the County‘s easements and claiming that it had been
deprived of its ability to develop the flood control basin. In July 2005, the Court of
Appeal ruled in favor of the County as to 30 acres of the easement established in 1933
but found issues of fact remained as to the applicability and extent of a 1939 easement.
The indictment alleges that Burum, on behalf of Colonies, then concocted a
scheme to obtain a settlement of this litigation ―through corrupt means‖: a combination
of threats, extortion, bribery, and inducements to secure votes for a favorable termination
of the litigation from the five-member Board of Supervisors. Burum‘s agent, Erwin,
conspired with Burum and conveyed threats and inducements from Burum to Postmus
and Biane, who were members of the Board of Supervisors, and to Kirk, who was chief
of staff to Gary Ovitt, a member of the Board of Supervisors. Erwin agreed to accept
money from Burum in exchange for influencing the votes of Postmus and Biane. Kirk
agreed to accept money in exchange for influencing Ovitt‘s vote. Postmus and Biane
joined the conspiracy by agreeing to accept the bribes.
The indictment recites that Postmus, after being provided cash, meals, and
entertainment of various kinds by Burum during a trade mission to China, announced to
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the County‘s administrative officer on September 20, 2005, ―We‘ve got to settle this
Colonies thing‖; that Burum offered money to Erwin to assist in obtaining votes for the
settlement; that Burum offered money to Kirk if he could deliver Ovitt‘s vote for the
settlement; that Burum offered money to Biane in exchange for a favorable settlement
from the County; and that Burum campaigned against Measure P (a ballot measure to
increase the salary of the members of the Board of Supervisors) as a means of exerting
pressure on Biane. Erwin told Postmus‘s staff that Burum had hired private investigators
to sift through the board chair‘s trash for incriminating information, and threatened to
distribute mailers to voters claiming that Postmus was addicted to drugs, as a means of
pressuring him to secure Biane‘s vote. As a means of pressuring Biane directly, Erwin
created mailers related to the Measure P campaign asserting that Biane was in debt and
unable to pay his bills.
In October or November of 2006, Burum and Postmus discussed the prospect of a
settlement at the Doubletree Hotel in Ontario, using Erwin as an intermediary. During
one meeting, Burum had a courier deliver ―hit piece‖ mailers relating to Measure P in an
effort to intimidate Postmus. Postmus and Biane eventually agreed to vote to approve a
settlement favorable to Colonies in exchange for a bribe. Kirk agreed, in exchange for a
bribe, to urge Ovitt to support the settlement.
On November 28, 2006, over the objections of San Bernardino County Counsel as
well as private attorneys retained by the County, Postmus, Biane, and Ovitt provided the
necessary three votes on the five-member board of supervisors to approve a $102 million
settlement with Colonies. In the months following the County‘s initial payment of $22
million to Colonies, Colonies made three separate payments of $100,000 each to political
action committees controlled, secretly or otherwise, by Biane, Kirk, and Erwin, and two
payments of $50,000 each to political action committees secretly controlled by Postmus.
Each of these conspirators funneled money from the committees for his own personal
benefit. Biane, Kirk, and Erwin failed to report these payments on their Fair Political
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Practices Commission Statement of Economic Interest Forms or on their income tax
returns.
Burum and Erwin demurred to all of the counts against them on the grounds that
the facts alleged did not state a public offense or would constitute a legal justification or
excuse or other legal bar to the prosecution. The trial court sustained the demurrers in
part. As relevant here, the trial court, in reliance on People v. Wolden (1967) 255
Cal. App. 2d 798 (Wolden), ruled as a matter of law that the offeror of a bribe (Burum)
could not be an accomplice of or coconspirator with the recipient of the bribe. The trial
court thus sustained Burum‘s demurrer as to counts 4, 5, 7, and 8 as well as to those parts
of the charge of conspiracy (count 1) with Postmus, Biane, Erwin, and Kirk relating to
those target crimes, but overruled the demurrer ―as it applies to allegations of conspiracy
with persons other than the recipients of the bribes.‖ The trial court reasoned, on the
other hand, that Wolden did not apply to Erwin, who was accused merely of being an
intermediary, not the offeror of the bribe; the trial court thus overruled Erwin‘s demurrer
as to all of those counts.
The People appealed the trial court‘s ruling sustaining Burum‘s demurrer in part.
Burum and Erwin filed petitions for writ of mandate/prohibition challenging the trial
court‘s decision to the extent it overruled their demurrers. The Court of Appeal
consolidated the petitions with the appeal and issued an opinion. The Court of Appeal
affirmed the trial court‘s order sustaining Burum‘s demurrer as to counts 4, 5, 7, and 8.
The appellate court then affirmed the order overruling Erwin‘s demurrer as to counts 4
and 7, but reversed the trial court‘s order overruling Erwin‘s demurrer as to counts 5 and
8. In the view of the Court of Appeal, the allegations in the indictment were sufficient to
suggest that Erwin was an agent of Postmus, a bribe receiver, in counts 4 and 7, but
counts 5 and 8 alleged that Erwin ―acted only as an agent of the bribe giver‖ with respect
to Biane. Finally, the Court of Appeal ordered the demurrers sustained as to count 1 to
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the extent the conspiracy charge relied on target crimes for which the demurrer had been
sustained.
We granted the People‘s petition for review.
DISCUSSION
A demurrer is not a proper means of testing the sufficiency of the evidence
supporting an accusatory pleading. (People v. Williams (1979) 97 Cal. App. 3d 382, 391
& fn. 5.) Rather, a demurrer lies only to challenge the sufficiency of the pleading. It is
limited to those defects appearing on the face of the accusatory pleading, and raises only
issues of law. (Pen. Code, § 1004; Tobe v. City of Santa Ana (1995) 9 Cal. 4th 1069,
1090.) ― ‗The [accusatory pleading] must be given a reasonable interpretation and read
as a whole with its parts considered in their context.‘ ‖ (People v. Keating (1993) 21
Cal. App. 4th 145, 150-151.) On appeal from a judgment entered on demurrer, the
allegations of the accusatory pleading must be liberally construed and assumed to be true.
(Ibid.)
The legal grounds for demurrer to an accusatory pleading are limited to those
specifically enumerated in Penal Code section 1004. (People v. Tibbitts (1925) 71
Cal. App. 709, 712; see also 4 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012)
Pretrial Proceedings, § 279, p. 548.) Failure to assert one of the enumerated grounds,
other than an objection to the jurisdiction of the court or that the facts stated do not
constitute a public offense, ―shall be deemed a waiver thereof.‖ (Pen. Code, § 1012.)
Burum and Erwin have challenged the indictment on the ground the allegations
―do not constitute a public offense‖ or contain assertions that ―constitute a legal
justification or excuse of the offense charged, or other legal bar to the prosecution.‖
(Pen. Code, § 1004, subds. 4, 5.)
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A. Whether the Offeror of a Bribe May be Charged with Aiding and
Abetting the Person Accepting the Bribe
The Court of Appeal held that neither Burum (the offeror of the bribes) nor Erwin
(Burum‘s agent) could be charged with aiding or abetting the receipt of the bribes. Its
conclusion rested on the theory that the offeror of a bribe cannot ―as a matter of law‖ aid
and abet another person in receiving the bribe. The Court of Appeal was mistaken.
Whether the offeror of a bribe may be charged with aiding and abetting another in the
crime of receiving the bribe depends on whether the offeror‘s conduct, beyond merely
offering or paying a bribe, satisfies the elements of aiding and abetting the receipt of the
bribe.
Our discussion of the interplay between the statutes defining bribery and the
statutes defining principals in a crime begins with People v. Coffey (1911) 161 Cal. 433
(Coffey). Michael Coffey, a member of the San Francisco Board of Supervisors, was
convicted of receiving a bribe, principally upon the testimony of a fellow supervisor who
acted as an intermediary for Abraham Ruef in communicating the offer of the bribe and
in delivering the promised money. (Id. at pp. 436-437.) The question before us was
whether this prosecution witness needed to be corroborated as ―an accomplice of Coffey
in the corrupt agreement thus charged and proved.‖ (Id. at p. 437.) Although Penal Code
section 1111, then as now, declared that a conviction could not be had upon the
uncorroborated testimony of an ―accomplice,‖ the Legislature had not yet defined the
word. (Coffey, supra, at p. 438.) Accordingly, we were forced to articulate a definition
of ―accomplice.‖ Our definition encompassed, but was not limited by, the definition of a
principal in Penal Code section 31,1 since (as we noted) ―[a]t common law the
1
Penal Code section 31, then as now, provided that ―[a]ll persons concerned in the
commission of a crime, whether it be felony or misdemeanor, and whether they directly
commit the act constituting the offense, or aid and abet in its commission, or, not being
present, have advised and encouraged its commission . . . are principals in any crime so
committed.‖
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accomplice could not be indicted for the same crime, yet he was none the less an
accomplice.‖ (Coffey, supra, at p. 441.) Indeed, we rejected as the ―commonest‖ of
errors the contention that ―an accomplice is one who may be indicted for the same crime
as that charged against the person on trial, and therefore if he cannot be charged with the
same crime he is not an accomplice.‖ (Id. at p. 440, italics added.) Observing that ―the
fallacy of the reasoning must be obvious,‖ we declared instead that ―[o]ne is an
accomplice in a crime because of the part he has taken in it, not because he may be
indicted as a principal. The latter is a mere accidental circumstance, depending upon the
language of the statute, and in no way affecting the true touchstone—namely, the part
which the witness has taken in the offense. The judicial declaration that, under a statute
such as our section 31 of the Penal Code, all accomplices may be indicted as principals, is
perfectly sound. But the attempted reasoning from this that if a person cannot be indicted
as a principal, he is, therefore, not an accomplice, is absolutely fallacious.‖ (Id. at pp.
440-441.)
Coffey thus defined ―accomplice‖ to encompass not only those who were
principals in the crime under Penal Code section 31, but also those who would have been
deemed principals but for the fact that ―the law has denounced as a separate crime the
particular act of participation‖ and has thereby ―effect[ed] a modification of section 31.‖
(Coffey, supra, 161 Cal. at p. 443, italics added.) In other words, ―[i]f the law made
manifest its intent that he should not be so indicted as a principal, it would be but an
exception to the general provision of section 31. If it did not make manifest this intent,
then the situation presented is that contemplated by section 654 of the Penal Code, where
the act is made punishable in different ways by different provisions of the code. But in
either case the accidental circumstances clearly do not affect the definition of an
accomplice‖ for purposes of Penal Code section 1111. (Coffey, supra, 161 Cal. at p.
443.)
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Four years later, the Legislature amended Penal Code section 1111 to repudiate
Coffey to the extent it had enlarged the definition of ―accomplice‖ beyond that provided
in Penal Code section 31: ―An accomplice is hereby defined as one who is liable to
prosecution for the identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.‖ (Stats.1915, ch. 457, § 1, p. 760; see
People v. Clapp (1944) 24 Cal. 2d 835, 838 (Clapp).) The Legislature, however, did not
purport to disavow Coffey‘s construction of section 31. Indeed, as a result of the 1915
amendment, the definition of an accomplice was made congruent with the definition of a
principal under section 31. (People v. Hoover (1974) 12 Cal. 3d 875, 879.)
The parties thus agree that, as a result of the 1915 amendment, the offeror of a
bribe and the receiver of the bribe are no longer deemed accomplices as a matter of law.
But defendants would carry the argument further. In their view, a bribe offeror and bribe
receiver, as a matter of law, can never be accomplices. They rely on Clapp, supra, 24
Cal. 2d 835.
Clapp considered whether a woman who submitted to an illegal abortion was an
accomplice of the defendant doctor who performed the abortion. Noting that the
performance of an abortion was then outlawed by Penal Code section 274 and the
solicitation of or submission to an abortion was then outlawed by Penal Code section
275, we held that the existence of ―section 275 of the Penal Code prescribing punishment
for a woman who submits to an illegal operation precludes the application of section 31
of the Penal Code under which she would be punishable as principal for the crime of
abortion,‖ where ―section 275 . . . cover[ed] all acts committed by [the woman] in
connection with the abortion.‖ (Clapp, supra, 24 Cal.2d at p. 839.) We stated the
general rule thus: ―If a statutory provision so defines a crime that the participation of two
or more persons is necessary for its commission, but prescribes punishment for the acts of
certain participants only, and another statutory provision prescribes punishment for the
acts of certain participants not subject to the first provision, it is clear that the latter are
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criminally liable only under the specific provision relating to their participation in the
criminal transaction. The specific provision making the acts of participation in the
transaction a separate offense supersedes the general provision in section 31 of the Penal
Code that such acts subject the participant in the crime of the accused to prosecution for
its commission.‖ (Clapp, supra, 24 Cal.2d p. 838, italics added.) As examples, we
asserted that ―the giver and receiver of a bribe‖ and ―the perjurer and suborner‖ were ―no
longer accomplices under section 1111.‖ (Id. at p. 839.)
The scope of our ruling in Clapp, though, ought not be overstated. Clapp had no
occasion to consider whether a person who solicits or submits to an illegal operation
could ever be an accomplice of the physician performing the operation. Rather, we said
that the mere solicitation of or submission to the illegal operation, which was already
criminalized by a separate provision, could not in itself establish that the person aided
and abetted the performance of the illegal operation. Similarly, we observed that ―the
giver and receiver of a bribe‖—simply by virtue of having given or received the bribe—
―are no longer accomplices under section 1111.‖ (Clapp, supra, 24 Cal.2d at p. 839; see
also People v. Davis (1930) 210 Cal. 540, 557 [―the giver and receiver of a bribe are no
longer accomplices one to the other‖].) Moreover, Clapp did not purport to repudiate the
part of Coffey that declared that the exception to Penal Code section 31 arises only where
―the law has denounced as a separate crime the particular act of participation by an
accessory or accomplice.‖ (Coffey, supra, 161 Cal. at p. 443, italics added.) Indeed,
neither Coffey nor Clapp suggested that anyone committing ―the particular act‖
criminalized by another statute would be exempted from aiding and abetting liability
regardless of what other acts that person committed. (Cf. People v. Davis, supra, 210
Cal. at p. 557 [―We can see no impossibility, legal or otherwise, in a person acting as the
agent or accomplice of both the bribe giver and the bribe receiver. Each case, of course,
must turn on its own facts and circumstances . . . .‖].) Accordingly, outside of the
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specific context presented in Clapp, our case law has indicated that aider and abettor
liability turns on the particulars of each crime participant‘s actual conduct.
In People v. Wayne (1953) 41 Cal. 2d 814 (Wayne), overruled on other grounds in
People v. Snyder (1958) 50 Cal. 2d 190, 197, we analyzed whether the trial court erred in
instructing the jury that Joseph May, the person solicited to offer a bribe to police
officers, could not be an accomplice of the defendant Willard Wayne, who was charged
under Penal Code section 653f with soliciting May to pay a bribe to police officers. We
explained that ―if the evidence showed only that defendant solicited such person and
nothing more,‖ the person solicited would not be an accomplice. (Wayne, supra, 41
Cal.2d at p. 825.) In Wayne, however, the prosecution evidence showed ―much more
than that; May [the person solicited] was not merely a participant in the criminal scheme
but the instigator of such scheme. . . . May first solicited Wayne in general terms and
thereafter Wayne solicited May to join in the bribe on specific terms,‖ forming ―two
criminal solicitations . . . . May, by his original solicitation of Wayne, together with his
ensuing conduct, encouraged and abetted Wayne‘s subsequent more specific solicitation
and thus became a principal in the latter crime under the provisions of section 31 of the
Penal Code . . . .‖ (Ibid., italics added.) Accordingly, May, despite being the person
solicited to offer a bribe, could have been found to be an accomplice to the charge of
solicitation ―not because he solicited himself but because he actively encouraged and
abetted defendant to solicit him.‖ (Id. at p. 826.) The fact that May was the person
solicited to offer a bribe did not disqualify him as a matter of law from being an
accomplice of the defendant who had solicited him. (Ibid.)
We deemed the situation in Wayne to be ―similar‖ (Wayne, supra, 41 Cal.2d at p.
825) to that in People v. Wallin (1948) 32 Cal. 2d 803 (Wallin), where we found, in the
unusual circumstances presented there, that a murderer could be additionally charged as
an accessory to the murder she had committed. In the latter case, the defendant Morton
Wallin was charged with being an accessory to murder by aiding Jeanette Paz, the
12
murderer, in disposing of the body. Wallin contended that the jury should have been
instructed that the testimony of Paz, the main prosecution witness, required corroboration
under Penal Code section 1111. We reasoned that the fact Paz was the murderer did not
automatically disqualify her from being an accessory after the fact to her crime (and thus
an accomplice of Wallin): ―It may be that a murderer who acts alone in concealing her
crime cannot be separately charged as an accessory, but it does not follow that she cannot
become liable as such if she encourages another to aid her in avoiding arrest and
punishment.‖ (Wallin, supra, 32 Cal.2d at p. 806.) Indeed, the record showed that Paz,
after the murder, committed ―additional acts in encouraging and aiding defendant to
commit the offense charged against him.‖ (Id. at p. 809.) Accordingly, we held that ―we
should not refuse to treat one who has committed a murder as an accomplice of one who
aided her in concealing the crime merely because it is unlikely that a murderer would
ever be charged as an accessory.‖ (Ibid.)
Yet another ―analogous‖ situation (Wallin, supra, 32 Cal.2d at p. 807) was
presented in People v. Lima (1944) 25 Cal. 2d 573, where the defendant Lima was
charged with receiving stolen property, and the thieves testified there was a prearranged
plan for them to steal the goods and for Lima to receive them. Although we deemed it
―settled‖ that ―the thief and the receiver of stolen property are not accomplices‖ (id. at p.
576; but see now Pen. Code, § 496, subd. (a)), we held that the rule applied only where
―the receiver usually has no part in the theft, directly or indirectly, and the criminal act of
knowingly receiving stolen property occurs independently thereof and at a time
subsequent to the completion of the asportation.‖ (Lima, supra, at p. 576.) We reasoned
that the limitation on Penal Code section 31 discussed in Clapp did not apply ―[w]here, as
here, the prosecution evidence discloses the existence of a conspiracy or agreement
whereby the principal prosecution witnesses were to steal and defendant was to purchase
the stolen property.‖ (Lima, supra, at p. 578.)
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Case law from the Court of Appeal confirms that the Clapp exception to Penal
Code section 31 arises when an individual might otherwise be deemed to be an active
offender in the commission of one crime and an accomplice in the commission of another
crime ―at the same time and through the same overt acts,‖ such that the bribe offeror and
the bribe receiver ―would be interchangeably guilty as accomplices, when the offer was
accepted and the bribe received.‖ (People v. Bunkers (1905) 2 Cal. App. 197, 204, italics
added.)
People v. Grayson (1948) 83 Cal. App. 2d 516, for example, considered ―whether
one who places a bet on a horse race is an accomplice of one who receives, holds, or
forwards the bet,‖ given that a separate subdivision of the same statute ―makes the
placing of a bet a separate offense.‖ (Id. at p. 518.) The Court of Appeal‘s conclusion
that the witness was not an accomplice did not purport to make a ruling as a matter of
law; rather, the court asserted that ―the acts of [the witness], according to the evidence,
were only those which constituted a violation of this subdivision [criminalizing the
placing of a bet]. . . . [S]ince the act of placing a bet, without which, of course, the bet
could not be received by another, was punishable as a separate offense . . . , it was not
punishable under [Penal Code] section 31, and [the witness] was not an accomplice of
appellant who received the bet.‖ (Id. at pp. 518-519, italics added; see also People v.
Bennett (1955) 132 Cal. App. 2d 569, 581 [those who were solicited for bribes in order to
obtain liquor licenses were not accomplices in the crime of asking or receiving bribes by
a public officer ―[u]nder these circumstances‖]; People v. Powell (1920) 50 Cal. App.
436, 443 [the bribe giver was not an accomplice in the crime of asking for a bribe
―[u]nder these circumstances,‖ but ―could be convicted as an aider and abettor in the
crime of receiving a bribe‖]; cf. People v. Skaggs (1947) 80 Cal. App. 2d 83, 95 [―Under
some situations, it is conceivable that under the provisions of sections 67 or 68 of the
Penal Code the bribe seeker could be the accomplice of the bribe giver, but the evidence
in the instant case if believed, presents no such problem‖]; People v. Brigham (1945) 72
14
Cal. App. 2d 1, 7 [―the bribe seeker could be the accomplice of the bribe giver or vice
versa but, by reason of the evidence in the within action, no such problem is presented‖].)
Each of these cases recognized that aiding and abetting liability depended on
consideration of the individual‘s conduct in full and not simply on whether a particular
act was criminalized by another statute.
The same was true in People v. Bunkers, supra, 2 Cal. App. 197, and in People v.
Lips (1922) 59 Cal. App. 381, on which defendants especially rely.
Bunkers, a state senator, was convicted of asking for and receiving a bribe in
exchange for quashing a legislative investigation into the affairs of a building and loan
association. In response to Bunkers‘s contention that officers of the association were
accomplices, the Court of Appeal carefully reviewed the evidence and found no
indication that any of them had aided or abetted the crime with which Bunkers was
charged: ―[N]either of them ever conversed with appellant[;] they . . . did not, directly,
advise or encourage him to ask for or receive a bribe. [¶] There is no evidence tending to
show that any of them suggested to [appellant‘s accomplice] that appellant be advised or
encouraged to commit this offense. The only possible theory upon which it could be said
that any of them aided or abetted, or encouraged its commission, is that they, or some of
them, assisted in procuring the money and in giving it to [the accomplice]. . . . As the
only acts of these witnesses which could by possibility render them liable as principals
under section 31 of the Penal Code constitute a separate and distinct offense under
section 85, cardinal rules of construction forbid an interpretation which would also make
them accessories before the fact, or principals, in the commission of the other offense
defined in section 86 of the same code.‖ (People v. Bunkers, supra, 2 Cal.App. at pp.
203-204.)
Lips, a deputy sheriff, was convicted of asking for and receiving a bribe from a
fugitive and his wife so that the fugitive could evade prosecution in Texas. Lips asserted
that the fugitive‘s wife, Dede Furay, was an accomplice in the crime of asking for and
15
receiving a bribe. The Court of Appeal rejected the contention as unsupported by the trial
record: ―[G]ranting that Mrs. Furay was a party to the agreement‖ made by Lips and a
fellow deputy sheriff to allow her husband to evade prosecution in exchange for money,
―Mrs. Furay was in no way concerned with the officers in either asking, receiving or
agreeing to receive the bribe. She was on the opposite end of the transaction.‖ (People v.
Lips, supra, 59 Cal.App. at p. 385.)
Other jurisdictions likewise recognize that aiding and abetting liability in such
circumstances depends on the individual‘s actual conduct. In People v. White
(Mich.Ct.App. 1985) 383 N.W.2d 597, the defendant mayor, Harry White, was charged
with aiding and abetting the offering of a bribe to a public official—himself. In reversing
the order dismissing the indictment, the Michigan Supreme Court reasoned that the
defendant‘s liability for aiding and abetting this crime would depend on whether the
―evidence at trial‖ showed that the defendant ―supported and encouraged by words or
deeds the [specified] persons to give a bribe,‖ not on whether the defendant had received
the bribe. (Id. at pp. 600, 601.) Indeed, the court acknowledged that ―[t]he recipient of a
bribe may act passively and simply accept the gratuity without having participated
actively in the conspiracy to give a bribe or in the crime of arranging for the giving of the
bribe. However, where the recipient actively participates with those who give the bribe,
he is chargeable as an aider and abettor in the crime of giving the bribe. We are aware of
no Michigan authority which would per se preclude prosecution for aiding and abetting
the giving of a bribe merely because the accused is the recipient of the bribe. Nor has
defendant presented any persuasive reason for fashioning such a rule.‖ (Id. at p. 600;
accord, United States v. Kenner (2d Cir. 1965) 354 F.2d 780, 785 [―a payor of a bribe can
be an aider and abettor‖ of a federal officer in accepting unlawful compensation]; United
States v. Di Girolamo (N.D.Cal. 1992) 808 F. Supp. 1445, 1449 [citing Kenner]; United
States v. Michael (D.N.J. 1978) 456 F. Supp. 335, 349-351 [interpreting federal and New
Jersey law]; cf. Gebardi v. United States (1932) 287 U.S. 112, 118-119 [where the
16
woman‘s conduct ―is more active than mere agreement on her part to the transportation‖
for illicit purposes and where she is ―the active or moving spirit in conceiving or carrying
out the transportation,‖ she can be an accomplice under the Mann Act (see now 18 U.S.C.
§ 2421)]; United States v. Spitler (4th Cir. 1986) 800 F.2d 1267, 1278-1279 [alleged
victim of extortion scheme had ―a ‗far more active role‘ ‖ than ― ‗the mere payment of
money,‘ ‖ and thus could be charged with ―aiding and abetting extortion and conspiracy
to commit extortion‖ (fn. omitted)].)
The same is true here. The allegation that Burum offered a bribe, even if proved,
cannot alone establish that he aided and abetted the receipt of the bribe. Neither,
however, does it categorically exempt him from being charged with aiding and abetting
the receipt of the bribe if he engaged in additional conduct to aid, promote, encourage, or
instigate the commission of that crime, with knowledge of the bribe recipient‘s unlawful
purpose and with the intent or purpose of committing, encouraging, or facilitating the
commission of the recipient‘s offense. In this case, the People contend that defendants
used threats, intimidation, and coercion to ensure the receipt of the bribes. (See Pen.
Code, § 31 [―principals‖ in a crime include those ―who, by threats, menaces, command,
or coercion, compel another to commit any crime‖].) Burum‘s liability for aiding and
abetting the crime of receiving a bribe under both section 165 (counts 4 and 5) and
section 86 (counts 7 and 8) thus would depend on whether, in addition to offering or
giving Biane or Postmus a bribe, the evidence shows that Burum also used threats,
intimidation, or coercion to aid, promote, encourage or instigate others to accept the
alleged bribes.
The only case offered to the contrary is Wolden, supra, 255 Cal. App. 2d 798,
which (according to defendants) held that an alleged bribe giver cannot, ―as a matter of
law,‖ be charged with aiding and abetting the receipt of those bribes. But Wolden did not
so hold. In that case, defendant Wolden, the tax assessor of the City and County of San
Francisco, was convicted of accepting bribes to reduce assessments on personal property.
17
Wolden argued that several of the prosecution‘s witnesses were accomplices and that the
trial court erred in instructing the jury otherwise. As to two of those witnesses, the
evidence showed only that each ―paid his own funds and each sought a personal benefit
from the official action sought to be induced by the gift‖ and thus could not have been
accomplices. (Id. at pp. 804-805.) The evidence concerning a third witness, Skelly, was
similar, but there was also testimony that Skelly had done so ―to aid Wolden.‖ (Id. at p.
805.) Accounting for the possibility, however ―unlikely,‖ that the jury could thereby
have inferred that Skelly was ―defendant‘s accomplice‖ in the crime of accepting bribes,
the Court of Appeal found that ―the removal of the issue from the jury was not
prejudicial,‖ since ―Skelly was essentially a defense witness.‖ (Ibid.) By parsing the
record so carefully, it is plain that Wolden did not purport to decide the issue of
complicity as a matter of law, but (rather) recognized that the person giving a bribe could,
depending on the evidence, be deemed an accomplice of the person accepting the bribe.
Because the Court of Appeal sustained Burum‘s demurrer to counts 4, 5, 7, and 8
solely on the ground that ―the person who gives or offers a bribe cannot, as a matter of
law, aid and abet the person who receives the bribe‖—and we have determined that this
ground was erroneous—we shall reverse the order sustaining the demurrer and remand
the matter to the Court of Appeal to consider, in the first instance, Burum‘s remaining
grounds for demurrer.
The Court of Appeal sustained Erwin‘s demurrer as to counts 5 and 8 on the
ground that the indictment alleged that Erwin ―acted only as an agent of the bribe giver,
defendant Burum, in persuading defendant Biane to accept a bribe.‖ Having found that
Burum could not, as a matter of law, be charged with bribing Biane, the Court of Appeal
ruled that ―defendant Erwin, as an agent only of defendant Burum, the bribe giver, would
stand in defendant Burum‘s shoes‖ and be entitled to the same relief. Because the Court
of Appeal exempted Burum from liability for aiding and abetting the recipients of the
bribe on an erroneous legal ground, it follows that the Court of Appeal‘s ruling with
18
respect to Erwin, which rested entirely on the ruling with respect to Burum, is similarly
vulnerable and must be reversed. The Court of Appeal, on remand, may consider in the
first instance Erwin‘s remaining grounds for demurrer.
B. Whether the Offeror of a Bribe May Be Charged with Conspiracy to
Receive the Bribe
The Court of Appeal‘s analysis with respect to the target crimes of bribery in the
conspiracy charge was very brief and rested on its erroneous conclusion that defendants,
as a matter of law, could not be charged with aiding and abetting the recipients of the
bribes. Thus, in the Court of Appeal‘s view, Burum‘s demurrer should have been
sustained as to the target crimes of bribery in the conspiracy charge ―because the crimes
defendant Burum allegedly conspired to commit are ones the law states he cannot
commit.‖ Similarly, because Erwin could not be charged with aiding and abetting Biane
in receiving or accepting bribes in counts 5 and 8, he could not be charged with
conspiring to commit those crimes. The sole authority cited was Wolden, which declared
that the giver and the receiver of a bribe cannot be ―guilty of conspiracy, because the two
crimes require different motives or purposes.‖ (Wolden, supra, 255 Cal.App.2d at p.
804.)
This part of Wolden, though, suffers from the same infirmity as the argument
rejected in the preceding part that the offeror of a bribe can never aid and abet the receipt
of a bribe. Although the giver and receiver of a bribe may have different intents, it is not
required, as a matter of law, that they must have different intents. (People v. White,
supra, 383 N.W.2d at p. 601 [―We disagree with defendant‘s contention that the recipient
of a bribe cannot, as a matter of law, have the necessary intent to conspire with others to
give a bribe to himself‖].) After all, it is well established that an individual may entertain
multiple criminal objectives simultaneously. (See generally People v. Beamon (1973) 8
Cal. 3d 625, 638-639.)
19
Indeed, Calhoun v. Superior Court (1955) 46 Cal. 2d 18 (Calhoun) sustained a
charge of conspiracy in closely analogous circumstances. Calhoun, acting on behalf of
various wholesale and retail liquor distributors, arranged to use trade association money
to donate to the political campaign of a candidate for the Board of Equalization, which
issued licenses to sell alcoholic beverages. Although such contributions appeared to be
prohibited by Government Code section 5002.6 (see Calhoun, supra, 46 Cal.2d at pp. 37-
38 (dis. opn. of Carter, J.)), Calhoun was alleged instead to have conspired with the
candidate and others to solicit and receive political contributions from those who were
regulated by the Board of Equalization in violation of Elections Code section 5002.5.
Calhoun, like defendants here, argued that donors and recipients of contributions could
not conspire to commit the same substantive offense as a matter of law, relying on the
opinion of this court in denying a petition for hearing in People v. Keyes (1930) 103
Cal. App. 624, 646. (See Calhoun, supra, 46 Cal.2d at p. 29.) Over the objections of a
dissenting justice that ―there can be no conspiracy between the donor and the donee‖ (id.
at p. 49 (dis. opn. of Carter, J.)) and that a conspiracy requires ―there be a common
unlawful motive‖ (id. at p. 42 (dis. opn. of Carter, J.)), a majority of this court
nonetheless permitted the prosecution to go forward. We rested our decision on the
particular facts of the case—i.e., evidence presented to the grand jury of ―an elaborate
conspiracy to utilize contributions from both retail and wholesale liquor licenses to
finance [the candidate]‘s political campaigns.‖ (Id. at p. 30.) In light of that evidence,
we reasoned that a trier of fact could have concluded that Calhoun had ―a much more
intimate participation in [the official]‘s campaign than that of one who acted solely as a
donor.‖ (Ibid.)
Here, as in Calhoun, supra, 46 Cal.2d at page 30, the indictment alleges that
Burum and Erwin participated in a conspiracy that was more elaborate than the mere
agreement that a particular bribe be accepted, but involved and depended on the conduct
of numerous parties to ensure that at least three supervisors be influenced to approve the
20
$102 million litigation settlement.2 The Court of Appeal thus erred in ruling that Burum
and Erwin, as a matter of law, could not conspire to commit the target bribery offenses.
We therefore reverse the order sustaining the demurrer as to these target crimes in count
1 and remand to the Court of Appeal to consider, in the first instance, defendants‘
remaining grounds for demurrer.
DISPOSITION
We express no opinion as to the validity of other defenses asserted by defendants
in their demurrers. We hold only that, at the demurrer stage, the bribery counts and the
related portions of the conspiracy count are not barred as a matter of law merely because
the indictment alleges that defendant Burum was the offeror of the bribes or that
defendant Erwin acted as Burum‘s agent. As that was the Court of Appeal‘s sole basis
for its decision, its judgment must be reversed to the extent it affirmed the order of the
superior court sustaining the demurrer of defendant Burum to target crimes 1 and 2 of the
conspiracy count alleged in count 1 and to the crimes charged in counts 4, 5, 7, and 8, and
to the extent it directed the superior court to sustain the demurrer of defendant Erwin to
counts 5 and 8 and the related target crimes in count 1. The matter is remanded to the
Court of Appeal for further proceedings consistent with this opinion.
BAXTER, J.
WE CONCUR:
CANTIL-SAKAUYE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
2
We need not decide, and therefore do not decide, under what other circumstances
the offeror of a bribe may be convicted of conspiracy to commit the crime of receiving a
bribe.
21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Biane
__________________________________________________________________________________
Unpublished Opinion NP opn. filed 10/31/12 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S207250
Date Filed: December 23, 2013
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Brian McCarville
__________________________________________________________________________________
Counsel:
Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Paul D. Dutton, Steven T. Oetting and Melissa Mandel, Deputy Attorneys General, for
Plaintiff and Appellant and for Real Party in Interest.
Law Office of Grech & Firetag, Paul Grech, Jr., and Chad W. Firetag for Petitioner Mark Kirk.
The Law Offices of Rajan R. Maline, Rajan R. Maline; Law Office of Harmon & Harmon and Steven L. Harmon for
Petitioner James Erwin.
Arent Fox, Stephen G. Larson, Mary Carter Andrues and Jonathan E. Phillips for Petitioner Jeffrey Burum
David M. Goldstein for Defendants and Respondents.
No appearance for Respondent Superior Court.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Melissa Mandel
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2211
Stephen G. Larson
Arent Fox
555 West Fifth Street, 48th Floor
Los Angeles, CA 90013-1065
(213) 629-7400