Giving or Offering a Bribe to a Legislator – Penal Code Section 85

Penal Code Section 85 seeks to protect the integrity of the legislative bodies of all levels of California government. Corruption simply cannot be tolerated in a functioning Democracy.

Section 85 declares that anyone is guilty of a felony who gives or offers to give a bribe to members of the following legislative bodies:

• State of California;
• Any City;
• Any County;
• School Districts;
• Special Districts.¹

Elements of the Offense

What is a “bribe”? A bribe occurs when a person gives something of value or advantage with the “corrupt intent” to unlawfully influence a Legislator in his or her official capacity. The item or promise given may be of present or future value to qualify as a bribe.²

In addition to punishing those who give or offer to give a bribe, Penal Code Section 85 applies to any person who attempts to influence a Legislator’s vote or to cause him to refrain from voting on any issue by way of menace, deceit, suppression of the truth, or any other corrupt means.

Prosecutors must prove the following elements beyond a reasonable doubt:

• (1A) You gave or offered a bribe to a judge or any person authorized to decide issues pertinent to a legal case;

OR

• (1B) The defendant used fear, deceit or some other corrupt action when dealing with a legislator;

AND

• (2) The defendant intended to influence the legislator’s decision, vote or other act in carrying his official duties.

Defenses

All cases turn on their unique facts. The following defense may apply:

1. No corrupt intent. The relationship of the parties should be closely examined. Defense counsel should aggressively challenge any inference that the defendant acted with a corrupt intent. It is possible that the words or actions of the defendant were taken out of context, or misreported to law enforcement.
2. No bribe occurred. Defense counsel should strongly contest whether any item of value, or a promise of something of value was actually exchanged. The legislative process can be complex. Lobbyists, special interest groups and other political actors may lawfully attempt to influence legislators. Accordingly, all circumstances surrounding the alleged bribe should be closely scrutinized to undermine whether the defendant’s words or actions actually amounted to a corrupt act.
3. No relation to official duty. The relationship between political actors and those who intend to legally influence them can be complicated. Often times, friendships are formed in the halls of government that extend far beyond anything connected to political objectives. Defense counsel should thoroughly investigate the relationship of all involved parties, and the words or actions that constitute the prosecution’s theory of the case.
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; (1)
   badgering, or repeated and insistent requests that amount to intimidation, (2) excessive flattery, (3) Excessive appeals to friendship or sympathy that could tug at the moral fiber of any reasonable person.³Entrapment typically arises when law enforcement officials design a “sting operation” to catch someone suspected of offering bribes. Any technique used by investigators to induce the defendant to act unlawfully should be closely scrutinized to determine whether he was unlawfully “entrapped.”

Punishment

The crime of Bribing a Legislator is a straight felony. The charge cannot be reduced to a misdemeanor. Section 85 felonies are punished as follows:

• By a state prison term of two, three, or four years.
• The court must impose a prison term unless it finds the case to be so unusual that the defendant deserves probation in the interests of justice.⁴ If the court grants probation, the defendant may be ordered to serve a local jail sentence of up to 365 days.
• A fine not to exceed $10,000.⁵

Commentary

Federal, state and local prosecutors zealously investigate any allegation of corruption. If you are the target of a corruption investigation, you should seek the advice of a criminal defense attorney immediately.

Suspects should always refrain from giving a statement to investigators until they have consulted with a criminal attorney. If you are approached by an investigator as a suspect, it is recommended that you invoke your right to an attorney and to remain silent. In other words, respectfully decline to give a statement and ask for an attorney immediately!

Prosecutors and investigators will move aggressively against anyone suspected of unlawfully interfering with the legislative process, and any elected official who appears to be open to a bribe. Law enforcement officers will utilize search warrants, electronic and physical surveillance, and every other available tool to its fullest extent when investigating public corruption cases. An experienced criminal defense attorney will give you expert advice concerning what to look out for when investigators have you in their focus. Prosecutors are known to persuade or leverage (“flip”) a suspect’s associates to wear electronic recording devices (“wires”) or participate in recorded phone calls when speaking to the person. Accordingly, you should consult with a criminal attorney as soon as you believe that you are the target of any public corruption investigation.

¹According to the California Legislative Analyst’s Office, “Special districts are a unit of local government–separate from cities and counties– which provide public services such as fire protection, waste disposal, water supply, electric utilities, and libraries.” [http://www.lao.ca.gov/1995/010195_calguide/cglgov3.html]

²California Penal Code § 17(6)

³CALCRIM No. 3408

⁴Pen. Code § 1203(e)(7).

⁵Pen. Code § 672.