THE PEOPLE, Plaintiff and Appellant, v. PAUL ANTOINE BIANE et al., Defendants and Respondents. MARK KIRK, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. JAMES ERWIN, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. JEFFREY BURUM, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
No. S207250
Supreme Court of California
Dec. 23, 2013
58 Cal. 4th 381
THE PEOPLE, Plaintiff and Appellant, v. PAUL ANTOINE BIANE et al., Defendants and Respondents.
MARK KIRK, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
JAMES ERWIN, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
JEFFREY BURUM, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James 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.
OPINION
BAXTER, J.--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.”
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
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 Antoine 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 (
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
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 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
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 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
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. (
The legal grounds for demurrer to an accusatory pleading are limited to those specifically enumerated in
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.” (
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
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
Four years later, the Legislature amended
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
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 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
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
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 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
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
Case law from the Court of Appeal confirms that the Clapp exception to
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 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, 444 [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
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
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 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 (1985) 147 Mich.App. 31 [383 N.W.2d 597], the defendant mayor,
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
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. 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, Wolden thus 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 respect to Erwin, which rested entirely on the ruling
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 a 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.)
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
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 $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
Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.