Requesting or Taking a Bribe – Penal Code Section 68

California law punishes government officials who request or take bribes in exchange for influencing their decisions.

Penal Code Section 68 applies to all state, federal and local government employees accused of requesting or taking a bribe.¹ (Penal Code Sections 67 and 67.5 punish those who offer bribes.)

Penal Code section 68 applies to both executive officers (those vested with discretion to make decisions, i.e., police officers) and ministerial officers (those with no discretion, i.e., court clerks). Police officers, prosecutors, building inspectors, DMV clerks and anyone else offering government influence in exchange for money or other favors can be pursued under Section 68.

Elements of the Offense

To prove that a government official unlawfully requested or received a bribe, prosecutors must prove the following elements beyond a reasonable doubt:

1. The defendant served as an executive or ministerial government official;
2. The defendant requested, accepted or agreed to accept, a bribe;
3. The defendant indicated he would compromise his official duty²;

AND

4. The defendant acted with a corrupt intent to compromise his official duty.³

What is a “bribe”? A bribe can mean:

• (a) Anything of present or future value;
• (b) Anything that offers the government official some present or future advantage;
• (c) A promise to provide (a) or (b) above to the government employee⁴;

What is a “corrupt intent”? A government employee acts with a “corrupt intent” when he acts to unlawfully gain some financial or other advantage for himself.⁵

Prosecutors are not required to show that the government employee used blatant words or behavior manifesting his intent to take a bribe. The crime may be proven based on the totality of all the circumstances. A jury will be asked to scrutinize all words, gestures, and other behaviors surrounding the bribery allegation.

Defenses

The defense of any criminal case turns upon the unique facts of the investigation. Defenses to Bribery under Penal Code Section 68 may include:

1. Contest the Offering or Acceptance of a Bribe. Defense counsel should aggressively challenge the nature of the alleged offering, and whether it was actually requested or received. All police reports, audio recordings, and other documents should be closely scrutinized to challenge the accuracy of the state’s case.
2. No “Corrupt Intent.” The circumstances may not clearly establish that the government official truly had a corrupt intent. The relationship between the parties should be closely examined.
3. Challenge the involvement of an official act. The State’s case may lack sufficient evidence that the offering was designed to influence the employee’s official act or decision. For example, the defendant and the person offering the alleged bribe may be friends or socialize together. The complexity of their relationship and social dealings might undermine the state’s assertion that money or favors were exchanged in order to influence an official act.
4. Entrapment. Bribery investigations are often based upon law enforcement “sting operations.” An undercover law enforcement agent will sometimes approach a government official to determine whether he or she is willing to accepting a bribe. A person is “entrapped” by law enforcement investigators if the agent engages in conduct that would cause a normally law-abiding person to commit the crime.⁶

Punishment

Bribery under Section 68 is a felony regardless of the value of the bribe.⁷ Those who request or take bribes pursuant to Penal Code Section 68 may be punished as follows:

• A prison sentence of 2, 3, or 4 years.
• Probation may only be granted if the court finds the matter to be an unusual case where the interests of justice favor probation.⁸ If probation is granted, the court may order a local jail sentence of up to 1 year.
• A restitution fine ranging from $2,000 and $10,000. If the bribe was received, however, the restitution fine can amount to double the amount of the bribe received or $10,000, whichever is greater.
• Lifetime ban from holding public office.⁹
• Lifetime ban from owning a firearm¹⁰

The crime is not a “wobbler,” i.e., an offense punishable as either a felony or a misdemeanor. Accordingly, the charge cannot be reduced to a misdemeanor following the successful completion of probation.

Defense counsel should file a brief on behalf of the defendant that paints his life history in the positive light, and that softens the court’s view of his criminal conduct to the greatest extent possible. A thorough mitigation report often makes a dramatic difference in the defendant’s sentence.

Comment on Bribery Investigations:

Former Los Angeles County District Attorney Steve Cooley formed a highly organized and aggressive public integrity unit. The methods honed by Los Angeles County in the City of Bell public corruption scandal and other high profile investigations have been modeled by the Ventura County District Attorney’s Office and other jurisdictions.

Any person suspected of a public integrity violation can expect rigorous scrutiny. Prosecutors and investigators will utilize search warrants, subpoenas, electronic and physical surveillance, and any other available tool to investigate public corruption allegations.

The Ventura County District Attorney’s Office patterned its own public integrity unit after Cooley’s aggressive model. In 2010, Ventura County District Attorney investigators and prosecutors literally turned a local city upside down during a corruption probe. Armed investigators burst into City Hall unannounced following the issuance of search warrants and seized vast amounts of documents and government computers. The homes and personal businesses of government and elected officials were also thoroughly searched to the shock and amazement of local officials and their families. Although no criminal charges resulted from the investigation, the city employees were left traumatized by the experience. They now understand of the importance of immediately seeking counsel from a competent defense lawyer.

If you find yourself to be the focus of a public corruption investigation, you should contact a criminal attorney immediately. Any target of an investigation should decline to provide a statement to investigators unless authorized by an experienced lawyer.

¹See Penal Code Section. (b) In imposing a restitution fine pursuant to this section, the court shall consider the defendant’s ability to pay the fine.”

²The indication may be express or implied.

³Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 2603

⁴CALCRIM 2603; See also Penal Code § 7(6).

⁵CALCRIM 2603; See Penal Code § 7: See also Penal Code § 7(4), defining “corruptly.”

⁶CALCRIM No. 3408.

⁷People v. Hallner (1954) 54 Cal.2d 715

⁸Penal Code Section 1203(e)(7); See also California Rules of Court § 4.413

⁹Penal Code § 68.

¹⁰Penal Code § 29800(a)(1),