Requesting or Receiving a Bribe by a Legislator – Penal Code Section 86

In California, any legislative member who accepts or requests a bribe may be guilty of a felony under Penal Code Section 86.

The person who offers or gives the bribe may also be guilty of a felony under Penal Code Section 85.

If you are suspected of offering a bribe under Section 85 or requesting or receiving a bribe under Section 86, the law enforcement pressure you will endure will be intense!

Section 86 applies to the members of:

• California Senate
• California Assembly
• Any county
• Any city
• Any school board
• Any special district¹

Elements of the Offense

Prosecutors must prove the following elements beyond a reasonable doubt:

1. The defendant is a Legislator as defined by the statute;
2. The defendant requested, received or agreed to receive a bribe;

AND

3. The defendant did so with the understanding that it would influence his official duty.

What is a bribe? Basically, it is a promise, advantage, or thing of value received with the understanding that it will influence the recipient’s vote, opinion, judgment, or action.

The law also prohibits elected officials from giving or promising to give their official votes in exchange for another member’s vote on the same or a separate issue.² This practice is commonly referred to as “vote swapping.”³

Defenses

The following defense may apply in a bribery case:

1. No bribe occurred. If nothing of value was actually exchanged, the case can’t be proven. The legislative process can be complex. Lobbyists, special interest groups and other political actors may lawfully attempt to influence legislators. A good defense attorney will closely scrutinize the facts to determine whether the defendant’s words or actions actually amounted to a corrupt act.
2. No understanding that an official duty would be compromised. It is possible for a misunderstanding to occur, depending on the relationship of the parties. The defendant’s words and actions may have been taken grossly out of context. The complexity of the legislative process often lends significant leeway in challenging the prosecution’s theory of the case.
3. Entrapment. Law enforcement officers will often use aggressive “sting operations” to target officials suspected of taking bribes. Entrapment is a defense where the normally law-abiding person is badgered, persuaded by flattery, or unfairly coaxed into committing the act.⁴ A good defense attorney will closely scrutinize the case to determine whether the client was “entrapped” by law enforcement.

Punishment

Section 86 is a felony and cannot be reduced to a misdemeanor! The potential punishment includes:

• A prison term of two three or four years;
• Probation is available only in unusual cases where may the court finds that it is in the interests of justice.⁵ If probation is granted, the defendant can be ordered to serve a local jail term of up to one year.
• A restitution fine between $4,000 and $20,000 if no bribe was received;
• If a bribe was received: (1)The minimum amount of the fine shall be at least twice the amount of the bribe received or $4000, whichever is greater, (2)The maximum allowable fine is no more than double the amount of the bribe received, or $20,000, whichever is greater.⁶
• Pursuant to Government Code Section 89513, campaign funds cannot be used to pay the restitution fine. Any use of campaign funds to pay fines is a misdemeanor.⁷
• A conviction results in a lifetime ban from holding public office.⁸

Commentary

Federal, state and local prosecutors fight corruption aggressively throughout California. If you are the target of a corruption investigation, you should seek the advice of a criminal defense attorney immediately.

Prosecutors and investigators will move methodically and with extreme diligence against anyone suspected of unlawfully interfering with the legislative process. You may be the target of search warrants, electronic and physical surveillance, and every other lawful investigative tool available.

Officers will use any means necessary to get a statement from you. If you are asked to give a statement, you should immediately ask for an attorney and respectfully decline to speak to investigators. Next, you should contact an experienced criminal lawyer without delay. Be aware that officers will resort to surreptitious tactics to make the case. Police investigators may try to persuade your friends to surreptitiously engage you in recorded conversations, either in person or over the telephone. An experienced criminal defense attorney can instruct you regarding what to watch out for.

An example of an extremely aggressive prosecution is Los Angeles County’s complete dismantling of the elected government of the City of Bell for corruption.

Here in Ventura, prosecutors launched an all-out legal assault against allegedly corrupt officials in the City of Oxnard in 2010. Search warrants were served by armed investigators who invaded the offices and homes of city officials. Many of them remain traumatized. In the end, no charges were filed. Those officials in Oxnard were left with a clear understanding of why a criminal defense attorney is necessary to protect a person from such law enforcement activity.

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]
California Penal Code § 17(6)

²California Penal Code § 86.

³For a discussion on illegal vote swapping, see California Attorney General Opinion 07-506, November 13, 2018.

⁴CALCRIM No. 3408

⁵Pen. Code § 1203(e)(7).

⁶AB 1666 amended the amount of the restitution fine and dictated that campaign funds cannot be used to satisfy the penalty.

⁷Effective January 1, 2015.

⁸Pen. Code § 88.