Bribing an Executive Officer – Penal Code Section 67

California law punishes those who give or offer to give bribes to government officials. Penal Code Section 67 specifically targets those who would seek to corrupt “executive officers” through bribery.¹

Executive officers are government officials who may use their own discretion in the performance of their duties.² Police officers, commissioners and prosecutors are all examples of executive officers.

Penal Code Section 67.5³ sets forth less serious punishment for any person who attempts to bribe a government official who serves a ministerial function. A court clerk would be an example of a ministerial official. (See Penal Code Section 67.5 for bribes offered to ministerial officers) Discretion on the job is essentially the key factor in determining whether a person is an executive versus a ministerial officer.

The more serious charge of Bribing an Executive Officer under Penal Code Section 67 is reserved for those who attempt to bribe government officials with “executive” (decision making) power.

Elements of the Offense

To prove that the defendant is guilty Bribing an Executive Officer under Penal Code Section 67, the prosecution must demonstrate the following elements of the crime beyond a reasonable doubt:

1. The defendant gave or offered a bribe an executive officer;

AND

2. The defendant acted with corrupt intent to influence an official act, vote, decision, etc.⁴;

What is a “bribe”?

1. Giving something of present or future value.
2. A promise to give something in the future.⁵

What is a “corrupt intent”? A corrupt intent exists when a person acts to wrongfully gain something of value or some type of advantage by means of offering a bribe. The crime is complete once the offer is made.⁶

Prosecutors may prove that a bribery occurred through (a) specific words and behavior clearly indicating a corrupt intent; (b) words and behavior in which the circumstances clearly show an intent to bribe.⁷

Defenses

Defenses to bribery include, but are not limited to:

1. No corrupt intent. Any evidence offered by the government to show a corrupt intent should be aggressively challenged to raise a reasonable doubt as to the mental state of the defendant. The relationship of the parties should be closely explored. If the defendant and government official struck up a social relationship, defense counsel should challenge whether the defendant sought to influence the officer in his or her official capacity.⁸ Intoxication and/or a misinterpretation of the defendant’s words by government witnesses may indicate that the defendant lacked a corrupt intent. Defense counsel should marshal all available evidence to challenge the prosecutor’s assertion that the defendant harbored a corrupt intent.
2. Not Acting in an Official Capacity. The subject matter of the offering did not relate to the executive officer’s official capacity. Defense counsel should aggressively explore the relationship of the parties. For example, is the defendant a close personal friend or social acquaintance of the government official in question? The complexity of the relationship may undermine the state’s ability to show that any exchange occurred to influence an official government act;
3. The target of the bribe fails to meet the definition of an “executive officer.” If the target of the alleged bribe lacks “discretion” in his or her job related activities, it is possible that the person fails to meet the definition of an “executive officer.”
4. 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. Some examples of entrapment might include conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy. Entrapment may arise when law enforcement officials design a “sting operation” to catch someone suspected of offering bribes. Any technique used by police should be closely scrutinized to determine whether the defendant was unlawfully entrapped by undercover agents.

Punishment

A violation of Penal Code Section 67 is punishable by incarceration in state prison for two, three or four years.¹⁰ Bribery under this Section is not a wobbler, i.e., the charge cannot later be reduced to a misdemeanor.

Commentary on Bribery Prosecutions

Bill Haney is a former Supervising Deputy District Attorney and Major Crimes prosecutor in the Ventura County District Attorney’s Office. Ventura County takes an aggressive stance towards any public corruption allegation, and any attempt to influence or corrupt a public official by an outside party.

Ventura County utilizes specialized and highly trained prosecutors to examine any allegation of public corruption. Only veteran prosecutors are assigned to “public integrity” cases. Accordingly, you can expect a thorough investigation of any such allegation. Prosecutors typically utilize investigators, search warrants, subpoenas, electronic surveillance and any other tool available to them in public integrity cases.

Ventura County prosecutors have modeled their own Public Integrity Unit after the heralded Public Integrity division established by the Los Angeles County District Attorney’s Office. Highly skilled investigators and prosecutors work meticulously for lengthy periods of time to detect and prosecute any form of public corruption.

In a public corruption investigation, it is not uncommon to see dozens of armed law enforcement agents show up unexpectedly at a suspect’s home with search warrants authorizing them to take computers, business records, financial documents any other form of relevant evidence. The execution of a search warrant can be utterly traumatizing to the suspect and his family. Accordingly, anyone targeted by a public corruption unit should immediately seek the advice of an experienced criminal attorney.

If you are questioned by any law enforcement official concerning a bribery accusation, you should immediately invoke your right to an attorney, elect to remain silent and consult with an experienced criminal defense attorney as soon as possible.

¹Penal Code § 67; CALCRIM 2600.

²CALCRIM 2600

³Penal Code Section 67.5.

⁴CALCRIM 2600

⁵CALCRIM No. 2600

⁶People v. Finkelstin (1950) 98 Cal.App.3d 545, 553.

⁷CALCRIM No. 2600

⁸CALCRIM No. 2600

⁹CALCRIM No. 2600

¹⁰Penal Code Section § 67