Giving or Offering a Bribe to a Ministerial Officer – Penal Code Section 67.5

California law punishes anyone who attempts to bribe:

• (a) An “executive officer” (See Penal Code Section 67), and
• (b) A “ministerial officer” defined in Penal Code Section 67.51¹

A “ministerial officer” is essentially a government employee who performs tasks without discretion.² A clerk in the Records Division of county government is an example of a ministerial officer. The discretion to make decisions is key when determining whether someone is an executive versus a ministerial officer.

Elements of the Offense

To prove the crime of Giving or Offering a Bribeto a Ministerial Officer, prosecutors must prove the following elements beyond a reasonable doubt:

1. The defendant gave or offered a bribe, and
2. The defendant acted with a corrupt intent to influence the officer’s “official actions”.³

What is a “corrupt intent?” The prosecution must show that the defendant wanted to gain some value or advantage through bribery.⁴

What is a “bribe”? A bribe is defined as the following offerings:

1. Anything of present or future value;
2. A present or future advantage;
3. Any promise of (1) or (2) above.⁵

The law does not require blatant words or behavior to find that a bribe was offered. A bribe, or the offering of a bribe, can be demonstrated by the totality of the circumstances and evidence before the jury.⁶

What is “Official Action”? Official action essentially relates to any act or duty falling under the government employee’s job description.⁷

What is an example of a ministerial bribe? A person offers a D.M.V clerk two tickets to a professional basketball game in exchange for changing her license status in the Department’s computer system.

Potential Defenses

1. No corrupt intent. Any evidence offered by the State to show a corrupt intent should be aggressively attacked to raise a reasonable doubt as to the defendant’s mental state.
2. The gift or offer had nothing to do with the officer’s official capacity. Defense counsel should closely scrutinize the relationship of the parties. The totality of the evidence may demonstrate that the subject matter of the alleged bribe had nothing to do with the ministerial officer’s duties.
3. Entrapment. A person is entrapped if a law enforcement officer engaged in conduct that would cause a normally law-abiding person to commit the crime. Law enforcement officials often conduct undercover sting operations when investigating bribery allegations. Defense counsel should examine whether the undercover agent used flattery, an appeal to friendship, sympathy, or any other form of mental leverage to induce the defendant to act in a way that he or she would not have otherwise behaved.⁸

Punishment

A violation of Penal Code Section 67.5 may be punished as either a misdemeanor or a felony. If the crime is alleged as a misdemeanor, the defendant is subject to spending up to one year in a county jail. If the crime is punished as a felony, the defendant is subject to up to three years of local prison (served in a county jail).⁹

If the bribe offered to the public employee is valued at $950 or less, the offense is punishable as a misdemeanor under Penal Code Section 67.5(a).¹⁰

If the bribe offered to the public employee is valued at greater than $950, the offense is punishable as a felony under Penal Code Section 67.5(b).

Commentary on Bribery Investigations:

Ventura, Los Angeles and many other Southern California jurisdictions draw a hard line on public corruption cases. The Los Angeles County District Attorney’s office developed an extremely aggressive and well-funded public integrity unit under former District Attorney Steve Cooley.

If you are the subject of any public integrity investigation, you should expect a vigorous inquiry into any alleged act of public corruption. Prosecutors and investigators will not hesitate to utilize search warrants, subpoenas, electronic evidence and any other tool available to them in public integrity cases.

Prior to seeking the advice of a criminal attorney, refrain refrain from giving a statement to investigators unless and until your attorney advises you to do so. It is always recommended that you invoke your right to have an attorney present upon questioning and your right to remain silent.

¹California Penal Code Section 67.5 reads: 67.5.

²Judicial Council of Criminal Jury Instructions, i.e., CALCRIM, No. 2601

³CALCRIM 2601

⁴CALCRIM 2601

⁵CALCRIM 2601

⁶CALCRIM 2601

⁷CALCRIM 2601

⁸CALCRIM 3408

⁹9 Pen. Code § 67.5

¹⁰Pen. Code § 67.5(a) (2014). The statute defines the penalty for bribery based on the valuation of the States Petty Theft and Grand Theft statutes. As of 2014, Grand Theft may be alleged when the item in question has a value greater than $950.