PEOPLE v. BIANE

Appellant’s Petition for Review

Cal.December 11, 2012

$2.07250 a In the Supreme Court of the State of Galitornia (:oneSUPREMECOURT ost!) FP PLE D THE PEOPLE OF THE STATE OF ee CALIFORNIA, ~ nec 11 2012 Case No. S Frank A. McGuire Clerk Plaintiff and Appellant, V. Deputy PAUL BIANE,etal., Defendant and Respondent. Appellate District Division Two, Case No. E054422 San Bernardino County Superior Court, Case No. FSB1102102 The Honorable Brian McCarville, Judge PETITION FOR REVIEW KAMALAD. HARRIS Attorney General of California DANER., GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Supervising Deputy Attorney General MELISSA MANDEL Supervising Deputy Attorney General State Bar No. 159141 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2211 Fax: (619) 645-2044 Email: Melissa.Mandel@doj}.ca.gov Attorneysfor Plaintiffand Appellant TABLE OF CONTENTS Page Issues Presented .........cccccsssccessseccesseeeeeseeecsseeeeneesereesseeeessnerensegensaperseeessegeers 1 Factual and Procedural Background.........secsccecssseeeeeereeneeseeterereeerstarensees 1 AYQUMENL occeceeseceseseeeesessesseenscesacessesacnersecsernecnecesseesseeeseeensensesseenenesenengs 3 I. California’s outdated bribery jurisprudence conflicts with United States Supreme Court authority andis internally contradictory, resulting in confusion which prevents the effective prosecution of crimes against the PUbLiC CUStoeees eee ctseeneeeteeeeneeseeaseeeseneessestaseeeeeteaeeeees 3 A. California’s application of Wharton’s rule to _ aiding andabetting bribery charges conflicts with United States Supreme Court authority and every federal circuit court that has considered the iSSUC ......cecceceeesscesteetenteeseeeseeueneeesaseessaeensueeneeesenaqees 4 B. There is a conflict in California law with respect to whether a person whooffers a bribe can be charged with aiding and abetting the receipt of a DIDoo... ceccccecceeeceseecreccecevececseceeesseseessneceeeeeseereeeneesereneees 8 Il. Private parties can aid and abetcriminal violations of Government Codesection 1090.............:scscceeesteeeeees veveueeeens 13 CONCLUSION ..ccecccccccccccesnsccccccececsesessessseescsnseesessesecneeesseneeesnaaeeseeeeneesaneeeeneges 18 TABLE OF AUTHORITIES Page CASES D’Amato v. Superior Court (2008) 167 Cal.App.4th 861 oo. ccscsecseseeeeeeneesesseeeeeteeseeseaseenes 14, 15, 16 Hub City Solid Waste Services, Inc. v. City ofCompton (2010) 186 Cal.App.4th 1114occseeeersscesereesretseseeesssessassasseaeceesseens 14 Tanelli v. United States (1975) 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616.0...cece5, 6, 7, 8 Manduley v. Superior Court (2002) 27 Cal.4th 537 .....ccccecsesseecccecceneceneessseseseeasesecssasssecneeessesseeeseaseereeaes 17 People ex rel State ofCalifornia v. Drinkhouse (1970) 4 Cal.App.3d 931 ooecncsersecsessesssesssssecsecsessecsssseeneeseesessseeseees 14 People v. Anderson (1925) 75 Cal.App. 365 w.eceeeeccseeseseecsssessrsensscssssesssecsessesseesseseeseeneasnensens 15 People v. Athar (2005) 36 Cal.4th 396oeeesssesseeeesersesteeecsensscssesscncssssscneeseerseneeeeeeseeneens 10 People v. Buffum (1953) 40 Cal.2d 709 ....ceseecscsessessesesteeseeecnensenteneenesssssnsatsnsneensssseseaesseetases 9 People v. Burns (1984) 157 Cal.App.3d 185 vccccssssssesessetsessessesessenseneeneessereessenseenenes 15 People v. Clapp (1944) 24 Cal.2d 835 oecccsccseeenersessssssescsssscerssacssesscssssessesseeseseeesaseseeeenees 9 People v. Davis (1930) 210 Cal. 540eeeeeseeeeretcssrsececescssseesssesscsesseneeeenesseseesneeeeseneneaees 9 People v. Diedrich: (1982) 31 Cal.3d 263 oo. ecccecseeseereessessssssssesssssessaseseseceeeseeessssseseeareeees 8,9 People v. Gaio (2000) 81 Cal.App.4th 919ieccescsseneeressssssessessrsssscsssseessesssesensersonses 9 il People v. Hutchins (1976) 61 CalApp. 30.77 v.cceccsesccssssessessessereetensteresieteeeensnssasenes 10, 11, 12 People v. Keyes (1930) 103 Cal.App. 624 ocseccseseesceseereseseenensneeenereenesenetsereesiianensney 9 People v. Lee (2006) 136 Cal.App.4th 522 oieccesecseseesenseseeesensensestecerserenanaeas 11,12 People v. Lima (1944) 25 Cal.2d 573 oesceccccscceeseseeseesessesesseseececeesisenesneessesenssesseenseenes 10 Peoplev. Little (1940) 41 Cal.App.2d 797 oc cccsssscesscsesssseseeseseseesesessenerseseseneeesseraeeates 15 People v. Morante (1999) 20 Cal.4th 403 occcseceseeeseessseeeneesssenensenessseeereneemecsentereeeenens 9 People v. Shaw (1941) 17 Cal.2d 778 ooccecsescnecseteeeceesenecseneseeacneenetseneessesraresees 13, 14 People v. Wallin (1948) 32 Cal.2d 803 oo. cceseescssssssssscsseneseesesseseseeseeeseeereenereneneeseesecnans 10 People v. Wayne (1953) 41 Cal.2d 814 oooceccccscsesseseeserseessenssecssseensensneeetesteeeerereerenieesaraens 10 People v. Wolden (1967) 255 Cal.App.2d 798 w..cccccsecescsseesserssesessernensiersenseseesenseseeseseensesensaes 6 Stigall v. Taft (1962) 58 Cal.2d 565 osceecssessseesesesesesenereeenenaeeeerseesenetenieenseeneeserees 16 Tenney v. Brandhove (1951) 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed.2d 1019...cette rtereteees 16 United States v. Bornman (3rd Cir. 2009) 559 F.3d 150vcccseesesesceesereeseeneeencneaeneneseasserenesreeeeees 7 United States v. Castro (Oth Cir. 1989) 887 F.2d 988 oo. eccscsseseseseseseseeseeeenentenenetesnsseeraneseeeesteees 7 United States v. Hines (8th Cir. 2008) 541 F.3d 833 wo. cccecccsceseeseteneeseeeetereesenesrenteeseenneeseeeseneses 7 United States v. Huber (9th Cir. 1985) 772 F.2d 585 ..cecscesseeesesseseeceeeteneeereneeneerseeeessecsseeesneerenenes 7 lil United States v. McNair (11th Cir. 2010) 605 F.3d 1152oeceeeeeeeeeeeetcsserssseeseessressesseeseasenesetes 7 United States v.Morris (7th Cir, 1992) 957 F.2d 1391 ceeeeseeeeesseeeecsscseeesssceseasseneeeeeeesaeeeeeny 7 STATUTES Government Code § L090. cccensecseeeesteeeseaeteseeendeessesetecessesesesesaeeeneecesaresssecsseeaeesseeseeeespassim § 1097.cecescesccsccsccecsscsssecseeeseessenseessecseesececseesaeceaassesenasenuseesesaseausonesenneseeees 13 Penal Code SB Lic ecccssecsccsecescsneescescucceeecseceeeesecseesneseaseseeesecssscsessessauessessereneenseeeegspassim § OT ccccsccsccsscsscsecsecsecsaeenesenecsecsecesseeseescssesacesseeceseesecsesseessresesseaseseesneesgnenesseses 6 § 68. ccccccccccssceceecssecsecenecanecacesecteenecsersevneesesateeeeseseesassseseuesscaseeeeseseeseatens 6, 15 § BO. ccccccesccssccscescecsensceeeesecnecnecesecesesecseuaceeesersevecessseeassassaesecessseseeseeseneees 2, 6,9 § LOS. cecececscesccsecseecetscsececscceeersaeenessseeensceeeseseaesssuseusesssenscsecssessseeesseeses 2, 6,9 § BQ.cecesessetteeestereceteneseeeesveveesesaecessesseuanceeeseateacecacessueaesssecenereagaseaveneeus 2 § QAcccccssecsseseseceesecseesseesecersaseesseeeeteeesessessdseeeseessscsessecansiaeenesaeesseeneenes 15 CourRT RULES California Rules of Court TUE 8.500(D).....ceccescssecsecsecsseccteeeeeerseeeeseensesesaessesavsesesseesscsseecsasseeseenseeaeeseges 1 iv TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Appellant, the People of the State of California, respectfully petitions this Court to grant review in this matter pursuantto rule 8.500 of the California Rules of Court. The unpublished opinion of the Court of Appeal, Fourth Appellate District, Division Two, authored by Justice Art W. McKinster, filed on October 31, 2012, is attached to this petition as Exhibit A. ISSUES PRESENTED 1. Can a bribe offerer be charged with conspiracy to commitbribery, and aiding and abetting thereceipt of a bribe, where his conductsatisfies the elements of those crimes? 2. Can a private person be charged with aiding and abetting a criminal conflict of interest violation? FACTUAL AND PROCEDURAL BACKGROUND Defendant Jeffrey Burum, a wealthy developer and managing partner of Colonies Partners, offered bribes to San Bernardino County public officials to settle a lawsuit on terms dictated by Burum. Forhis criminal plan to succeed, Burum needed three San Bernardino County supervisorsto vote in favor of the lawsuit, so in addition to offering bribes to certain individuals, Burum enlisted the assistance of defendant James Erwin to obtain their collective cooperation in the bribery scheme. Burum and Erwin used a combination ofthreats, extortion, and inducements to wear downtheir resistance and secure the votes of Supervisors Bill Postmus and Paul Biane, and to get Chief of Staff Mark Kirk to influence Supervisor Gary Ovitt to vote in favor ofthe settlement. Each of those supervisors voted to settle the case for $102 million, against the advice of all county attorneys andall private attorneyshired to represent the county. (CT 1-28.) Between Marchand July 2007, Burum began paying the bribes by giving $100,000 each to Postmus, Erwin, Biane and Kirk through phony political action committees. He also took Erwin on an extravagantjet trip and provided him with expensive gifts, which Erwin failed to disclose on his FPPC form 700. Erwin, Biane and Kirk did not disclose the $100,000 bribes on their FPPC form 700’s or on their incometax returns, all of which werefiled under penalty of perjury. (CT 1-28.) For these actions, on May 9, 2011, a special grand jury indicted Burum, Erwin, Biane and Kirk on 29 criminal charges.' Aspertinenthere, defendants Burum and Erwin were indicted in counts charging them together with conspiracy (count 1, Pen. Code, § 182); bribery (counts 4 and 5; Pen. Code, § 165); asking for/receiving a bribe (counts 7 and 8; Pen. Code, § 86); and conflict of interest (count 11; Gov. Code, § 1090). On August 19, 2011, the trial court partially sustained the defendants’ demurrers. As pertinent here, the court sustained Burum’s demurrerto counts 4, 5, 7 and 8 (and count1, to the extent it was predicated on those crimes), on the grounds that as a matter of law, a person whooffers a bribe cannotbe charged with aiding and abetting the receipt of a bribe. It overruled Erwin’s demurrer on the same charges, finding that as the intermediary rather than the bribe offerer, there was no legal impedimentto charging Erwin with aiding and abetting the receipt of a bribe. Thetrial court overruled both demurrers as to count 11, holding that private persons can be charged with aiding and abetting a conflict of interest. (CT 261- 281.) ' Forhis role in these events, Bill Postmus pleaded guiltyto all charges in a previously filed case and agreed to cooperate with the prosecution. — The People appealed thetrial court’s ruling granting Burum’s demurrer in part. Burum and Erwinfiled petitions for writ of mandate/ prohibition, wherein Erwin challenged the court’s denial of his demurrer on the bribery charges, and both challenged the court’s denial oftheir demurrers on the conflict of interest charge. The matters were consolidated. Applying a narrow doctrine of federal common law, Wharton’s Rule, the Court of Appeal affirmed thetrial court’s ruling granting Burum’s demurreras to counts 4, 5, 7 and 8; reversedthe trial court’s order denying Erwin’s demurrer as to counts 5 and 8; and reversed the trial court’s ruling denying the demurrers as to count 11. The Court of Appeal also granted the demurrer as to count | to the extent it relied on charges for which demurrers had beengranted. (Exh. A.) The issues raised in this Petition were presented to the Court of Appeal, so no Petition for Rehearing wasfiled. The People respectfully request this Court grant review. ARGUMENT I. CALIFORNIA’S OUTDATED BRIBERY JURISPRUDENCE CONFLICTS WITH UNITED STATES SUPREME COURT AUTHORITY ANDIS INTERNALLY CONTRADICTORY, RESULTING IN CONFUSION WHICH PREVENTS THE EFFECTIVE PROSECUTION OF CRIMES AGAINST THE PUBLIC TRUST California’s bribery law hasfailed to develop alongside evolving national legal standards. Specifically, California’s application of Wharton’s Rule to invalidate bribery and conspiracy charges conflicts with United States Supreme Court authority and every federal circuit court that has considered the issue. Further, conflicts within this Court’s own jurisprudence create confusion as to whether a person whooffers a bribeis immunefrom liability for aiding and abetting the receipt of a bribe, even where his conduct would support such charges. This is the right case for this Court to offer guidance on these important issues, and it comesatthe right time. Although unpublished, this high-profile public corruption case is being closely watched,and will be used as a benchmark to inform the conduct of both public officials and those seeking to influence them as to what acts they can commit without subjecting themselves to prosecution. It is an important caseto the citizens of California, involving the theft of $102 million ofpublic funds under circumstances which substantially undermine confidencein local government. And because the Court of Appeal’s holding specifically limits the manner in which prosecutors can chargebribery crimes,it will have a chilling effect on public corruption prosecutions and causethe issueto evade review. Finally, the public policy concerns foreshadowedbythis Court’s prior holdings becomea reality here, where the mastermind of a massive bribery schemewasgiven a free pass by the Court of Appeal, while his underling continues to face criminalliability for the identical conduct. | California’s bribery law has not been meaningfully considered in more than half a century, and anotherhalf century may pass before the opportunity to do so arises again. In these hard economic times, where local governments are going bankrupt and individuals are struggling to stay afloat financially, California citizens are entitled to local prosecutors fully equipped with all available charging tools to fight against the theft of their tax dollars. A. California’s Application of Wharton’s Rule to Aiding And Abetting Bribery Charges Conflicts With United States Supreme Court Authority And Every Federal Circuit Court That Has Considered the Issue Count One charges Burum,Erwin and others with conspiracy to commit bribery, and countsfour, five, seven and eight charge Burum and Erwin with aiding and abetting the receipt of a bribe, based on allegations that, in addition to offering and paying bribes, “On or between January 1, 2005, and November 29, 2006, BURUMcorruptly influenced members of the Board of Supervisors through a combination ofthreats, extortion, inducements andbribery in order to secure their vote in favor of a settlement.” (CT 5.) It further alleges that “ERWIN joined the conspiracy, and conveyed various threats and/or inducements from BURUMto Postmus, BIANE and KIRK. ERWIN agreed to accept money in exchange for influencing the votes ofPOSTMUSand Biane.” (CT 5.) Overt acts 5- 14 set forth specific threatening and coercive acts Erwin and Burum committed in their efforts to overcomethe resistance of Postmus and Biane, coerce them into accepting the bribes, and accomplish a settlement on the terms demanded by Burum. (CT 5-8.) | The Court of Appeal applied Wharton’s Rule to invalidate the charges against Burum. Wharton’s Rule is a doctrine of federal common law which provides, “An agreement by two persons to commit a particular crime cannotbe prosecuted as a conspiracy when the crimeis of such a nature as to necessarily require the participation of two personsfor its commission. (lanelli v. United States (1975) 420 U.S. 770, 775 [95 S.Ct. 1284,43 L.Ed.2d 616].) (Exh. A, pp. 16-17.) California’s application of Wharton’s Rule to bribery charges conflicts with United States Supreme Court authority. The Supreme Court has madeit clear that Wharton’s Rule has currentvitality only as a judicial presumption, which applies only in the absenceofa legislative intent to the contrary. Classic Wharton’s Rule offenses such as adultery, incest, bigamy and dueling are characterized by a congruence between the agreement and the substantive offense. The parties to the agreement are the only persons involved in the substantive offense, the immediate consequencesofthe crimerest on the parties themselves and not on society at large, and the substantive offense is not likely to pose the kind ofthreat to society the law of conspiracy seeks to avert. (Janelli v. United States, supra, 420 U.S.at pp. 782-783.) Citing People v. Wolden (1967) 255 Cal.App.2d 798, 803-804, the Court of Appeal applied Wharton’s Rule in a manner inconsistent with the limited presumption authorized by the United States Supreme Court. (See Exh. A, p. 19.) This is not a case where the immediate consequencesof the crime rest on the parties themselves, or where the agreement does not appearlikely to pose the distinct kinds ofthreats to society that the law seeks to avert. (Janelli v. United States, supra, 420 U.S.at pp. 782-783.) This $102 million theft of taxpayer funds affected every taxpayer in San Bernardino. Moreover, even Burum’s successful commission of each bribery charge would not have been enough to accomplish the goal of the conspiracy, as the agreementincluded an effort by all conspiratorsto influence Supervisor Gary Ovitt to vote in favor ofthe settlementto secure a total ofat least three votes, but Ovitt is not alleged to have received a bribe. Moreover, while the United States Supreme Court has stated that Wharton’s Rule “has current vitality only as a judicial presumption,to be applied in the absenceoflegislative intent to the contrary,” (Janelliv. United States, supra, 420 U.S.at pp. 782-783), the California Legislature has indicated a clear intent to hold bribe offerers criminallyliable to the same extent as those whoreceive bribes. (See, e.g., Pen. Code, § 165, [including both the offerer and receiver undera single statute], and Pen. Code, §§ 67, 68, 85, 86, [providing for punishment of two, three or four years for both the offerer and receiver of a bribe].) The indictment here alleges the bribe offerer used his enormouspolitical power and financial resources to coercethe public officials into accepting his bribes. The statutory schemeoffers no support for the court’s decision to treat him more favorably than those who gavein to his pressure. Additionally, Wharton’s Rule does not apply where the conspiracy involves morepersons than the substantive offense (/anelli v. United States, supra, 420 U.S.at p. 782, fn. 15.) Here, the conspiracy charged four defendants and additional unnamed coconspirators. (See count 1, CT 3.) While each bribery charge named the specific individual Burum aided and abetted in receiving the bribe, the alleged conspiracy was far broader than any individual bribery charge, as it named multiple parties not alleged to be bribe recipients, andinvolved a more complex goal than any individual bribery count. In other words, while the bribery charges involved Burum’s efforts to coerce each specific board member, the conspiracy charge involved Burum’s agreement with Erwin, Postmus, Biane and Kirk to obtain a favorable lawsuit settlement by securing the acceptanceofhis bribes by three or more voting members ofthe board. California’s application of Wharton’s Rule to bribery charges conflicts with every federal circuit court that has considered the issue, which unanimously conclude Wharton’s Rule does not apply to bribery (See, e.g., United States v. McNair (11th Cir. 2010) 605 F.3d 1152, 1215; United States v. Bornman (3rd Cir. 2009) 559 F.3d 150, 156; United States v. Hines (8th Cir. 2008) 541 F.3d 833, 838; United States v. Morris (7th Cir. 1992) 957 F.2d 1391, 1403.) California’s application of Wharton’s Rule to aiding and abetting charges conflicts with the Ninth Circuit’s holding that Wharton’s Rule does not apply to aiding and abetting (United States v. Castro (9th Cir. 1989) 887 F.2d 988, 996; United States v. Huber (9th Cir. 1985) 772 F.2d 585, 591-592.) Finally, while the United States Supreme Court has said Wharton’s Rule applies only whereit is impossible under any circumstances to commit the substantive offense without cooperative action (/anelliv. United States, supra, 420 U.S.at pp. 782-783), the Court of Appeal applied the rule to charges ofreceiving a bribe, although this Court has madeit clear that crime does not require cooperative action. (People v. Diedrich (1982) 31 Cal.3d 263, 273-274.) Finally, under no circumstances does Wharton’s Rule authorize a court to grant a demurreras to both the conspiracy and bribery charges. Wharton’s Rule is a merger doctrine which would prevent Burum’s conviction for both the conspiracy and the underlying substantive charge, an election which could be madeby the prosecutor or by appropriate jury instructions. (See Janelli, supra, 420 US.at p. 775.) B. There is a Conflict In California Law With Respect to Whether a Person WhoOffers a Bribe Can Be Charged With Aiding And Abetting the Receipt of a Bribe Relying on Wolden, supra, the Court of Appeal held that even though Burum wasalleged to have used threats, menace, commandorcoercion to compelothers to accepta bribe, he could not be charged with aiding and abetting the receipt of a bribe because he wasthebribe offerer. (Exh. A,p. 19.) Support for that proposition was found in cases from this Court dating back morethan half a century. Those cases cannot be reconciled with subsequent developments in the law, and their continuing validity should be reexamined. The court’s holding turned on the following language from Wolden: Whenonestatute defines a crime which necessarily requires the participation of two or more persons,but fixes punishmentfor only one of them, and another statute separately provides that the other participant is guilty of a distinct crime,each is guilty of a criminal offense, but the offense of which eachis guilty is separate and distinct from that of the other. It followsthat the definitions of accessory, aider and abettor([]§§31, 971) do not operate to-subject either to prosecution underthe section proscribing the act of the other, and neither falls within the code definition of an accomplice as to the act of the other. (/d.). Bribery is such a crime. The giver whose offenseis specifically madea crime ([] § 67) is not an accomplice in the separate and distinct crime ofthe receiver[citations]. That language comes from People v. Clapp (1944) 24 Cal.2d 835, 838. Subsequent decisions have goneto great lengths to distinguish Clapp or simply refuse to apply it, such that the case is of questionable validity. (See People v. Buffum (1953) 40 Cal.2d 709, 728 (Opinion of J. Schauer, concurring and dissenting), overruled on other groundsasstated in People v. Morante (1999) 20 Cal.4th 403.) Clapp conflicts with this Court’s decision in People v. Diedrich, supra, 31 Cal.3d at pages 273-274, because Clapp says the crime of bribery requires two or more persons, while Diedrich says it does not. Wolden also relied on People v. Keyes (1930) 103 Cal.App. 624 (per curiam denial of review) and People v. Davis (1930) 210 Cal. 540, to conclude that the giver of a bribe cannot be charged with aiding and abetting the receipt of a bribe, irrespective of the facts. (Exh. A, pp. 18-19.) In Keyes, this Court stated, withoutcitation, that the giver and receiver of bribes are not guilty of a conspiracy because the two crimes require different motives. In Davis, this Court held that the giver and receiver of a bribe are not accomplices of one another, but an intermediary may be the accomplice of both. (Davis, at pp. 557-558.) Wolden acknowledgedthe difficulty in reconciling those rules, and in this case, principles of equity and fairness weigh heavily in favor of reexamining the aforementioned cases. While the Court of Appeal found Burum’s conduct in offering the bribe excused him from liability for his role in aiding and abetting the receipt of the bribes, it found no legal impedimentto such liability for Erwin, an intermediary, whose acts were committed at Burum’s direction and on his behalf. Thus, the mastermind * Diedrich involved Penal Code section 165 as charged in counts 4 and 5. The same reasoning applies equally to counts 7 and 8 which charge violations of Penal Codesection 86. (See People v. Gaio (2000) 81 Cal.App.4th 919, 928-929.) wasset free while his underling continues to face criminal charges. (cf. People v. Athar (2005) 36 Cal.4th 396, 403 [disfavoring an irreconcilable disparity in punishmentfor individuals committing similar offenses].) The aforementioned cases also conflict with other decisions from this Court. This Court has madeit clear that even where the law specifies separate crimesfor participants in a criminaltransaction, that separate treatment does not preclude aiding and abetting liability where the facts support it. (People v. Lima (1944) 25 Cal.2d 573, 579 [aiding and abetting liability appropriate for those involved in a conspiracyto steal and receive stolen property]; People v. Wayne (1953) 41 Cal.2d 814 [a person who solicits may, by his subsequent conduct, encourage, aid and abet another’s solicitation and becomea principal in the crime under Penal Code section 31].) . In People v. Wallin (1948) 32 Cal.2d 803, this Court found that a murderer was an accomplice to an individual charged with being an accessory after the fact to the murder. While her commission of the murder alone would not subject her to liability as an accessory after the fact, it did not follow that she could not becomeliableif she encouraged anotherto aid her to avoid arrest and punishment. (Jd. at p. 806.) Here, similarly, even if Burum’s conductoffering the bribe would not subject him to accomplice liability for aiding and abetting the receipt of a bribe, it does not follow that he could not becomeliable based on his subsequent charged conduct of using threats and coercion to compelthe recipients to acceptthe bribe. In People v. Hutchins (1976) 61 Cal.App.3d 77, the Court of Appeal questioned the existence of a “rule” proposed by the defendantthat, “where a statute defines an offense which necessarily involves joint action, but provides no punishmentfor the conduct of oneof the participants,that participant cannotbe chargedasprincipal, coconspirator, or aider and abettor in the substantive offense committed by the other party.” (Jd. atp. 10 83.) The court found “no persuasive analogy” betweensituations where courts had exempted from punishment parties who were generally considered by society to be less morally blameworthy than the other party, and the facts of the case before it, which involved an attorney employing runnersto solicit business for him. In the latter case, “the attorney is likely to be the instigator or manager of the schemeandis the person whoprofits financially from it.” (/bid.) That is exactly the case with Burum here. This Court should grant review to clarify that whether a bribe offerer can be charged with aiding and abetting the receipt of a bribe depends on the facts of the case. People v. Lee (2006) 136 Cal.App.4th 522, demonstrates that the issue involves a factual determination, even where a provision of law generally precludes accompliceliability. In Lee, the defendant, a prison inmate, was convicted of conspiracy to furnish a controlled substance to a prison inmate based on evidencethat the defendant, his wife and a prison employee had worked together to bring drugs into the facility. (Lee, supra, 136 Cal.App.4th at pp. 526-527.) The defendant claimed that as a prison inmate, he could not be charged with conspiracy to furnish controlled substances to a prison inmate. Specifically, he claimedthe statutory language ofthe substantive offense expressly applied to non-inmates and therefore excluded him. Otherstatutes provided for lesser punishmentfor prison inmates, so applying the law of conspiracy to an inmate, he claimed, would run contraryto the express legislative intent. (Lee, supra, 136 Cal.App.4th at p. 529.) The defendant relied on “narrowly drawn, interconnected exceptions” to the general rules regarding coconspiratorliability to argue that he was not properly charged. (Lee, supra, 136 Cal.App.4th at p. 530.) One of those alleged exceptions derived from cases holding that “where the Legislature has dealt with crimes which necessarily involved the joint action of two or more persons and where no punishmentis provided for the 1] conductofone ofthe parties, that person cannot be charged as a principal, coconspirator, or aider and abettor if (1) a different and more lenient criminalstatute is found to be controlling as to such person, or (2) there is an affirmative legislative intent that such participant go unpunished.” (/d. at p. 531.)° In analyzing the defendant’s liability in Lee, the court surveyed the jurisprudence from whichthe rule had developed, and noted that particular features ofjoint participation were present when the rule was applied to preclude prosecution against one party. The court held the overriding consideration in cases applying the rule wasthat the Legislature had indicated an intent that one party escape punishment, or be punishedless severely, for participation in the conductat issue. (Lee, supra, 136 Cal.App.4th at p. 536.) The Legislature has revealed nointent that bribe offerers escape punishment,or are punishedless severely, than those who receive bribes. Asset forth above, the two are subject to the same punishment. Asin Lee, to hold otherwise would lead to the absurd result that a “kingpin” developer (Burum), using “mules” (Erwin) to accomplish the crimes of both giving and receiving bribes, would escape the very sameliability that the “mules,” who operate at his direction, are subject to, simply because the developeris also the person whopaid the bribes. (Lee, supra, 136 Cal.App.4th at p. 538.) Penal Code section 31’s expansive language provides that “all persons” whoparticipate in the commission of a crimeare principals. There is no bribery exception to aiding and abettingliability. The Court of Appeal created a new rule of law which operates as a judicial grantof . > Whether such tule exists at all is questionable. (Hutchins, supra, 61 Cal.App.3dat p. 83.) 12 immunity to bribe offerers, limits prosecutorial discretion to select the appropriate charges, and presents a significant obstacle for prosecutors fighting public corruption crimes. Il. PRIVATE PARTIES CAN AID AND ABET CRIMINAL VIOLATIONS OF GOVERNMENT CODE SECTION 1090* “All persons” involved in the commission of a crime are accomplices, except in those cases wheretheruleis altered by a special statute. (Pen. Code, § 31, People v. Shaw (1941) 17 Cal.2d 778, 800.) No such statute (or any other provision of law) limits the liability of Burum and Erwin for aiding and abetting San Bernardino public officials in violating Government Code section 1090. The conflict of interest charges against Burum and Erwin are premised upontheir efforts to coerce, compel and threaten San Bernardino public officials into entering a $102 million settlement contract, under circumstances where everyone involved had a financial interest in the contract, and everyone knewofthe public officials’ financial interest in the contract. Count 1, in pertinent part, charges Burum and Erwin with conspiring with Postmus, Biane and Kirk to commit a violation of Government Code section 1090, and Count 11 charges Burum and Erwin with aiding and abetting Postmus, Biane and Kirk in violating Government Code section 1090. (CT 17.) The indictmentalleges that Postmus and _Biane voted on the Colonies lawsuit settlement knowing they had a * Government Code section 1090 provides,in pertinent part, “Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract madeby themin theirofficial capacity, or by any body or board of which they are members. Norshall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by themin theirofficial capacity.” The penalties for violating section 1090 are set forth in Government Codesection 1097. 13 financial interest in the outcome (CT 5) and that Burum and Erwin used threats, inducements and bribes to secure their votes, knowing they had a financialinterest in the outcome. (CT 5.) | Since no special statute alters the application of Penal Codesection 31 in this context, Burum and Erwin were properly charged with aiding and abetting violations of Government Code section 1090. (See People v. Shaw, supra, 17 Cal.2d at p. 800.) Case law and public policy support imposing criminal liability on private persons with a financial interest in a contract who use threats, menace or coercion, or advise and encourage public officials to enter a contract in which the public official has a conflict of interest in violation of Government Code section 1090. Nocase directly addresses the issue raised here, but case law on related issues provides support for the People’s position that private parties with a financial interest in a contract can be charged with aiding and © abetting a violation of Government Code section 1090. For example, in D’Amato v. Superior Court (2008) 167 Cal.App.4th 861, the court impliedly endorsed accomplice liability under Government Code section 1090 by setting forth the elements that must be proved in support of such a charge. (Id. at p. 870.) And, the D’Amato court expressly distinguished and reaffirmed the decision in People ex rel State ofCalifornia v. Drinkhouse (1970) 4 Cal.App.3d 931, wherein one defendant was convicted of violating Government Codesection 1090 on an aiding and abetting theory. (/d. at p. 935.) Further support for the proposition that private parties can be accomplices to 1090 violations can be found in Hub City Solid Waste Services, Inc. v. City ofCompton (2010) 186 Cal.App.4th 1114, 1124, wherein the court held that persons in an advisory position to a city may fall within Government Codesection 1090, and that independent contractors with potential to exert considerable influence overa city’s contracting decisions maybe principals under Government Code section 14 1090. (Ud. at pp. 1124-1125.) Moreover, there is no meaningful basis on whichto distinguish aiding and abetting liability under Government Code section 1090 from othersituations in which private parties have been held liable for aiding and abetting public officials in committing crimes, such as bribery (Pen. Code, § 68, People v. Anderson (1925) 75 Cal.App. 365, 374 (overruled on other groundsasstated in Jn re Wright (1967) 65 Cal.2d 650, 654 (superseded bystatute as stated in People v. Burns (1984) 157 Cal.App.3d 185) and misappropriation ofpublic funds (Pen. Code, § 424, People v. Little (1940) 41 Cal.App.2d 797, 805.) The Court of Appeal discussed none of these issues, but instead misread a single statement in D’Amato as creating a wholesale exception to aiding and abetting liability under Government Code section 1090. (Exh. A, p. 37.) D’Amato created no such exception. In D’Amato, the defendant wasa city administrator who supervised his codefendant, the city’s director of public works. In order to obtain federal funding for a project, the defendant recommended the formation of a joint powers committee, and then as a memberofthat committee, voted to contract with his codefendant’s consulting firm to serve as the project manager. (D’Amato, supra, 167 Cal.App.4th at p. 866.) The codefendant wasindicted for violating Government Code section 1090, and the defendantpublic official wasindicted for aiding and abetting the codefendant by forming the joint powers agreementand contracting with the codefendant’s consulting firm. (id. at p. 867-868.) The court found that principles of legislative immunity prevented charging a public official with aiding and abetting a violation of Government Code section 1090, because the specific intent required for aiding and abetting liability would require inquiry into the defendant’s state of mind, which violates the separation of powers doctrine when the defendantis a public official engaged in protected legislative activity. Thus, the court held, “the separation of powers doctrine bars criminal 15 prosecution of a public official for aiding and abetting another’s section 1090 violation based onthat official’s legislative activities where the official does not hold a personal financial interest in the contractat issue.” (Id. at p. 876.) That holding has no bearing on the liability of private parties. The separation ofpowers doctrine prohibits prosecutors from using a generally applicable criminal statute to oversee legislators in the performanceoftheir legislative duties, thereby impinging ontheir ability to function independently. (D’Amato, supra, at p. 872; Tenney v. Brandhove (1951) 341 U.S. 367, 377 [71 S.Ct. 783, 95 L.Ed.2d 1019].) Concerns about maintaining the integrity of governmentfunctions are not implicated by inquiry into the motivations of private parties who are not involved in legislative activity. Thus, while the Court of Appeal correctly quoted D’Amato’s statement that “[T]he Legislature’s wording of section 1090 evinces the intent to exclude aider and abettorliability[],” it read that statement far too broadly to prohibit accompliceliability altogether. Rather, the remainder of the quoted paragraph gives meaning to the quoted statement, concluding “(t]hus, the language of section 1090 is consistent with a legislative intent to exclude from punishment members ofa legislative body who do not have a financial interest in the contract at issue.” (D’Amato, supra, 167 Cal.App.4th at pp. 508-509.) Public policy weighs in favor of the People’s position, and against extending legislative immunity to protect private citizens not performing legislative activity. The purpose of Government Codesection 1090is to removeorlimit the possibility that any personal influence might directly or indirectly bear on a public official’s decisions, and to void contracts obtained through fraud or dishonesty. (Stigall v. Taft (1962) 58 Cal.2d 565, 569.) Imposing criminalliability on private persons, like Burum and Erwin here, who advise, encourage, threaten, commandor coerce public officials 16 into entering contracts in whichthe official has a financial interest will further that policy by deterring such individuals from pressuring officials into entering unlawful contracts. The Legislature has given no indication of an intent to exclude such persons from criminal liability, and they fall squarely within the definition of accomplices under Penal Codesection 31. The powerto define crimes and fix penalties is vested exclusively in the legislative branch, and prosecuting authorities, exercising executive functions, have sole discretion to choose, for each particular case, the actual Cecharges from amongthose potentially available based upon “‘the complex considerations necessary for the effective and efficient administration of law enforcement.’” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) The Court of Appeal violated these principles by imposing judicial limitations on the Legislature’s broad definition of accompliceliability whichincludes “all persons concerned in the commission of a crime.” Moreover, by applying these new rules in demurrerproceedings, the court infringed on the prosecutor’s right to choose from amongall potentially applicable charges, and present evidenceestablishing the elements of accomplice liability. bid.) 17 CONCLUSION For the reasons set forth above, review should be granted. Dated: December 10, 2012 Respectfully submitted, KAMALA D, HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Supervising peputy Attorney MELISSA MANDEL Supervising Deputy Attorney General Attorneysfor Plaintiffand Appellant MM:bp $D2011801249 70655837.doc 18 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13 point Times New Romanfont and contains 5,265 words. Dated: December 10, 2012 KAMALA D. HARRIS Attorney General of California Mfutisenfusmedef MELISSA MANDEL Supervising Deputy Attorney General Attorneysfor Plaintiffand Appellant ATTACHMENT A Filed 10/31/12 P. v. Biane CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and publication or ordered published, except as specified byrule 8. Parties from citingor relying on opinions notcertified for 115(b). This opinion has not beencertified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Appellant, E054422 V. (Super.Ct.No. FSB1102102) PAUL ANTOINE BIANEetal., OPINION Defendants and Respondents. MARK KIRK, E054735 Petitioner, Vv. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. JAMES ERWIN, E054737 Petitioner, Vv. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. JEFFREY BURUM, ~ _—E054738 Petitioner, Vv. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. APPEAL AND PETITIONS FOR WRIT OF MANDATEfrom the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Appeal affirmed in part and reversed in part. Petition for writ of mandate denied as to Mark Kirk. Petition for writ of mandate granted in part and denied in part as to James Erwin. Petition for writ of mandate granted in part and deniedin part as to Jeffrey Burum. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, James D. Dutton, and Melissa Mandel, Deputy Attorneys General, for Plaintiff, Appellant and Real Party in Interest The People. David M. Goldstein for Defendant and Respondent PaulBiane. Law Office of Grech & Firetag, Paul Grech, Jr. and Chad W.Firetag for Defendant,-Respondent-and.Petitioner Mark.Kirk. Law Office of Rajan Maline, Rajan Maline; Law Office of Harmon & Harmon and Steven L. Harmon for Defendant, Respondent and Petitioner James Erwin. Arent Fox, Stephen G. Larson and Mary Carter Andrues for Defendant, Respondentand Petitioner Jeffrey Burum. The People of the State of California appeal from thetrial court’s order sustaining, in part, the defendants’ demurrers to various counts of the grand jury indictmentin this action. (Pen. Code, § 1238, subd. (a).) The indictmentalleges in pertinent part that defendants Mark Kirk, James Erwin and Jeffery Burum (hereafter referred to collectively as defendants or individually by last name) committed various crimesincluding aiding and abetting William Postmus and defendant Paul Biane, both of whom are elected membersof the San Bernardino County Board of Supervisors (the Board), to accept a bribe and/or ask for or receive a bribe; and with conspiracy to commit those crimes as well as other crimes that involve the alleged unlawful acts of several elected members of the Board. Thealleged object of the conspiracy was to obtain the Board’s approval of a $102 million settlement in favor of Colonies Partners, L.P., of which defendant Burum is a general partner, in its lawsuit against the County of San Bernardino. In addition to the People’s appeal, defendants Burum, Kirk and Erwin filed petitions for writ of mandate challenging thetrial court’s order overruling parts of their respective demurrers. We consolidated defendants’ writ petitions with the People’s appeal in order to address and resolve in a single opinionall issues related to the demurrers. For reasons we explain below, we agree with the People’s assertion in their appeal that the trial court erred in sustaining defendants’ demurrersto the counts that allege they misappropriated public fundsin violation of Penal Codesection 424. Wealso agree with the assertion of defendants Erwin and Burum in their writ petitions that the trial court should havesustained their demurrers to the counts that allege they had a conflict of interest in violation of Government Code section 1090. In addition, we agree with defendant Erwin’sclaim thatthe trial court should have sustained his demurrer to counts 5 and 8, which allege he aided and abetted defendant Biane in committing the crimes of bribery in violation of Penal Code section 165, and asking for and/or receiving a bribe in violation of Penal Codesection 86, respectively. Wereject the claim defendant Kirk alleges in his writ petition and will deny the writ. Therefore, wewill affirm in part and reversein part, and issue a writ of mandate directing the trial court to sustain defendants’ demurrers in the mannerjust indicated. I. PROCEDURAL BACKGROUND A. The Indictment On May9, 2011, a special grand jury in San Bernardino County issued a 29-count indictment naming Paul Biane, Mark Kirk, James Erwin, and Jeffrey Burum as defendants. The indictment alleged thatat all relevant times defendant Biane was an elected member of the Board; defendant Kirk was chiefof staff for Gary Ovitt, an elected member of the Board; and defendant Erwin, amongotherthings, was the agent of defendant Burum.. The indictment further alleged that between January 1, 2005 and July 12, 2007, defendants Biane, Kirk, Erwin and Burum,one of two general partners in Colonies Partners, L.P. (Colonies), conspired with each other and with unindicted coconspirators including William Postmus, an elected memberofthe Board, to commit the crimes of bribery in violation of Penal Code section 165 (referred to in the trial court and hereafter as target crime 1), asking for and/or receiving a bribe in violation of Penal Code section 86 (target crime 2), appropriation of public funds by a public officer without authority of law in violation of Penal Code section 424 (target crime3), improper influenceof a legislative action in violation of Government Code section 9054 (target crime 4), and conflict of interest in violation of Government Code section 1090 (target crime 5). According to the indictment, “(t]he object of the conspiracy wasto illegally obtain $102,000,000 from the County.” As alleged in the indictment, the meansfor accomplishing the conspiracy were that Colonies purchased certain real property in Uplandfor the purpose ofresidential and commercial development; the property included a 67-acre flood control basin; San Bernardino County asserted easementrights over the flood control basin; in March 2002, Colonies sued the county in orderto challengeits easement claim;thatlitigation confirmed the county’s easementrights, but in July 2005 only part of those rights were affirmed on appeal; some unknowntime after Colonies filed its lawsuit, defendant Burum “concocted a schemeto obtain a monetary settlement ... from the County”; between January 1, 2005 and November29, 2006, defendant Burum allegedly corruptly influenced membersof the Board through “threats, extortion, - inducements, and bribery in order to secure their vote in favor of a settlement”; and defendant Erwinallegedly joined the conspiracy by conveyingthreats and/or inducements from defendant Burum to Postmus, defendant Biane, and defendant Kirk. In addition, defendant Erwin allegedly agreed to accept money from defendant Burum in exchange for influencing the votes of Supervisor Postmus and defendant Biane; defendant Kirk allegedly agreed to accept money from defendant Burum in return for influencing the vote of Supervisor Ovitt. Postmus and defendant Biane allegedly joined the conspiracy by agreeing to accept a bribe in return for their votes to approve the Colonies settlement. | The indictment alleges that on November 28, 2006, Postmus,Ovitt, and defendant Biane voted to approve a settlement of $102 million in Colonies’s lawsuit against the county. Postmus and defendant Bianeallegedly “voted [in favor of the settlement] knowingthat they had a financial interest in the outcome,a bribe from [defendant] Burum.” The indictmentalso alleges, “After Colonies received substantial sums of money from the settlement with the County, [defendant] Burum distributed from Colonies the agreed upon bribesand payments to Postmus, [and defendants] Biane,Kirk, and Erwin” by giving $100,000to political action committees created and controlled by them. The indictment alleges numerousovert acts defendants and the unnamed coconspirators committed. We recount the details of those allegations below aspertinent to our resolution of the issues raised on appeal. In addition to the conspiracy charged in count 1, which includesthe five identified target crimes, the indictment also separately charged defendants with committing the following additional crimes, some of whichare the crimesalleged as target crimes in the conspiracy count: Defendant Biane—bribery in violation of Penal Code section 165 (count2); asking for and/orreceiving a bribe in violation of Penal Code section 86 (count6); conflict of interest in violation of Government Code section 1090 (count 10); appropriation of public funds by a public officer without authority of law in violation of Penal Code section 424 (count 12,entitled “public officer crime”); willfully filing a false tax return in violation of Revenue and Taxation Code section 19705, subdivision (a)(1) (count 15); perjury by declaration in violation of Penal Code section 118 (count 19); and filing a false instrumentin violation of Penal Code section 115, subdivision (a) (count 20). Defendant Kirk—bribery in violation of Penal Code section 68 (count 3); obtaining money on the representation that he would improperly influence Gary Ovitt in regard to an official matter or vote, in violation of Government Codesection 9054 (count 9); conflict of interest in violation of Government Code section 1090 (count 10); appropriation of public funds by a public officer without authority of law in violation of Penal Code section 424 (count 13); filing a false tax return in violation of Revenue and Taxation Code section 19706 (count16); perjury by declaration in violation of section 118 (count 21); andfiling a false instrumentin violation of Penal Code section 115, subdivision (a) (count 22). Defendant Erwin—briberyin violation of Penal Codesection 165 (counts 4 & 5); asking for and/or receiving a bribe in violation of Penal Codesection 86 (counts 7 & 8); conflict of interest in violation of Government Code section 1090 (count11); appropriation of public funds by a public officer without authority of law in violation of Penal Code section 424 (count 13); forgery in violation of Penal Code section 470, subdivision (a) (count 14); willful failure to file a tax return in violation of Revenue and Taxation Code section 19706 (count 17); filing a false tax return in violation of Revenue and Taxation Code section 19706 (count 18); perjury by declaration in violation of Penal Code section 118 (counts 23, 25, 26 & 28); andfiling a false instrument in violation of Penal Code section 115, subdivision (a) (counts 24, 27 & 29). Defendant Burum—bribery in violation of Penal Code section 165 (counts 4 & 5); asking for and/orreceivinga bribe in violation of Penal Code section 86 (counts 7 & 8); conflict of interest in violation of Government Code section 1090 (count 11); and appropriation of public funds by a public officer without authority of law in violation of Penal Codesection 424 (count 13). B. The Demurrers Defendants each demurred to the indictment on the groundsthatthe facts alleged did not state public offenses and, even if true, that the alleged facts would constitute a legal justification or excuse or otherlegal bar to prosecution. (Pen, Code, § 1004.)! In particular, all defendants demurred to the conspiracy charge alleged in count 1.7 In addition, each defendant demurred to someorall of the counts in which he was charged with aiding and abetting in the commission, or actually committing, the crime alleged as a target crime in the conspiracy count. In other words, defendant Burum,joined by defendant Erwin,his alleged agent, demurred to counts 4 and 5, whichalleged bribery in violation of Penal Code section 165; counts 7 and 8, which alleged violations of Penal Code section 86 based on asking for or receiving a bribe; count 11, which alleged a conflict of interest in violation of Government Codesection 1090; and count 13, which alleged misappropriation of public funds in violation of Penal Code section 424. Defendant Biane demurred to counts 2 (bribery), 6 (asking for and/or receiving a bribe), 10 (conflict of interest), and 12 (misappropriation of public funds), and defendant Kirk, in ! Penal Code section 1004 states, in pertinent part, that, “The defendant may demurto the accusatory pleading at any time priorto the entry of a plea, when it appears upon the face thereof either: [{] ...[§] 4. That the facts stated do not constitute a public offense; [§]] 5. That it contains matter which,if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.” 2 Defendants Erwin and Biane joined in defendant Burum’s arguments, and also asserted arguments of their own. Defendant Kirk separately demurred. addition to demurring to count 1, demurred to count 9 (improperlobbying in violation of Government Code section 9054) and count 13 (misappropriation of public funds). C. The Trial Court’s Ruling Thetrial court sustained defendants’ demurrers in part and overruled them in part. Wewill recount the details of the trial court’s ruling, below, as pertinent to our discussion. of the issues raised by the parties. IL. DISCUSSION A. Standard of Review | 1. The People’s Appeal “<1A] demurrerraises an issue of law asto the sufficiency of the accusatory pleading, andit tests only those defects appearing on the face of that pleading.’ [Citation.]” (People v. Manfredi (2008) 169 Cal.App.4th 622, 626; see also Tobe v. City ofSanta Ana (1995) 9 Cal.4th 1069, 1090 [A demurrer to a criminal complaint lies only to challenge the sufficiency ofthe pleading andraises only issues of law.”].) On appeal “We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgmentas to whether,as a matter of law, the complaint .. . states a cause of action on any available legal theory. [Citation.] In doing so we assumethe truth of all material factual allegations, and wearerequired to accept them as such, together withthose matters subject to judicial notice. [Citation.]” (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 524,fn. omitted.) 10 2. Defendants’ Writ Petitions “The Code of Civil Procedure provides that mandate ‘may be issued . . to compel the performanceof an act which the law specially enjoins’ [citation] where ‘there is not a plain, speedy, and adequate remedy,in the ordinary course of law.’ [Citation.] Although it is well established that mandamus cannotbe issued to control a court’s discretion, in unusual circumstances the writ will lie where, underthe facts, that discretion can be exercised in only one way. [Citation.]” (Babb v. Superior Court (1971) 3 Cal.3d 841, 850-851.) If defendants’ writ petitions demonstrate the trial court had no discretion to overrule their demurrers, i.e., that as a matter of law the indictmentfailed to a state public offense, then defendants would lack an adequate remedy at law without first incurring the time and expenseofa trial. B. Judicial Notice Requests Defendant Burum,in connection with his petition for writ of mandate, requests this court take judicial notice ofthe judgment of validation in San Bernardino Superior Court case No. SCVSS 146272, dated March 29, 2007, attached as Exhibit A to his judicial notice request. The judgmentofvalidation is not relevant to any issue defendant Burumraises in his writ petition, and he only mentions the documentin the “factual background”section of that petition. Therefore, the request for judicial notice is denied. Defendants Burum,Erwin and Kirk also request in connection with their writ petitions that we take judicial notice of the record in the related appeal. Defendants Burum and Erwin also request we take judicial notice of various documents, attached as 11 exhibits to their judicial notice requests, that purportedly pertain to the legislative histories of Government Code sections 1090 and 9054. The appealandwrit petitions have been consolidated, as previously noted, and as a result the record in the appealis properly before us. The documentspurportedly related to the legislative histories of the noted Government Code sectionsare irrelevant because, as we discuss below, neither statute is ambiguous;therefore, we need not determine the Legislature’s intent. Accordingly, the judicial notice requests are denied. C. Motion to Dismiss Writ Petitions The People move to dismiss the writ petitions filed by defendants Erwin and Kirk because the petitions are verified by their respective attorneys but do not include the affidavit required under Code of Civil Procedure section 446 explaining why the verifications were not made by the defendantparties. The People acknowledge that defendant Erwin’s attorney states in his verification that he, rather than defendant Erwin, verified the petition because he has “superior knowledge than Petitioner of the facts therein.” The People contendthe attorney must explain why he has superior knowledge, and that failure to do so renders the verification inadequate. . The People do notcite authority for that contention, and therefore we are not persuaded. Code ofCivil Procedure section 446 offers three reasonsfor the attorney rather thanthe party to verify a pleading—theparty is absent from the county where the attorney hashis or her office, “from some cause” the party is unable to verify the pleading, andthe facts are within the knowledge of his or her attorney. (Code Civ. Proc., 12 § 446.) Defendant Erwin’s attorney stated that he has superior knowledgeofthe facts, and that statement comports with the statutory requirement. Defendant Kirk’s attorney states in his verification that “[t]he matters stated in the attached declaration [sic] are true of our knowledge.” The statement arguably does not comport with Code of Civil Procedure section 446, but we nevertheless decline to dismiss the writ petition. One of the reasonsfor requiring that a writ of mandate petition be verified by the beneficially interested party is so that facts alleged in the petition can be used as evidence. (See People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 470.) The issues raised in defendants’ writ petitions are all ones of law. Forthis reason, we view the verifications as adequate compliance with the requirementthat writ petitions be verified. (See Code Civ. Proc., § 1086; Cal. Rules of Court, rule 8.486(a)(4).) D. Analysis 1. Bribery in Violation ofPenal Code Sections 165 and 86 (Alleged in Count 1 As Target Crimes 1 and 2, and in Counts 2, 4, 5, 6, 7 and 8 Against Defendants Burum, Biane and Erwin) Asset out above, the indictment alleges in count 1 that defendants conspired to commit five target crimes. Alleged target crime | is bribery in violation of Penal Code section 165.3 The indictmentalleges in count 2 that defendant Bianeviolated section 165, in count 4 that defendants Burum and Erwinaided and abetted Postmusin violating 3 All further statutory references will be to the Penal Code unless otherwise indicated. 13 section 165, and in count 5 that defendants Burum and Erwin aided and abetted defendant Biane in violating section 165. Alleged target crime 2 of the conspiracy charged in count 1, is a violation of section 86, the crime of being a supervisor whoasks for and/or receives a bribe. Count 6 of the indictmentalleges that defendant Bianeviolated section 86 by being a county supervisor who received a bribe, count 7 alleges that defendants Burum and Erwin aided and abetted Supervisor Postmus in receiving a bribe, and count8 alleges that defendants Burum and Erwin aided and abetted defendant Biane, also a county supervisor, in receiving a bribe. Defendant Burum, joined by defendants Biane and Erwin,assertedin his demurrer he was the person whooffered the bribes, and as a matter of law he could not aid and abet Postmus and defendantBianein the crimes of receiving the bribe, nor could he conspire with any of the other defendants to committhat crime. Therefore, defendants Burum, Biane and Erwin all argued that the facts alleged in the indictment could not establish conspiracy based ontarget crimes 1 (bribery) and 2 (asking for and/or receiving a bribe) nor could they establish counts 2, 4, 5, 6, 7 and 8, whichallege bribery in violation of section 165 and asking for and/orreceivinga bribe in violation of section 86,either as a direct perpetrator (Biane) oras an aider and abettor (Burum and Erwin). 14 Thetrial court sustained defendant Burum’s demurrerto target crimes 1 and 2, and counts 4, 5, 7 and 8, but overruled the demurrers of defendants Erwin and Biane.4 Defendant Erwin challenges that ruling in his petition for writ of mandate. a. The People’s Appeal The People contend the trial court erred in sustaining defendant Burum’s demurrer to target crimes 1 and 2 alleged in count 1, and counts 4,5, 7 and 8,the related bribery counts, because the question of whether the person who gavethe bribe also aided and abetted the receipt of the bribe is one of fact for a jury to determine. While that ordinarily is true, when the charging documentalleges facts that either do not constitute a public offense (§ 1004, par. 4) or that establish a complete defense to the crime (§ 1004, par. 5), the factual issue can be resolved as a matter of law. Defendant Burum madeboth of those claims in his demurrer. In particular, defendant Burum relied on People v. Wolden (1967) 255 Cal.App.2d 798 (Wolden), which holds that “when one statute defines a crime which necessarily requires the participation of two or morepersons, but fixes punishmentfor only one of them, and anotherstatute separately provides that the other participantis guilty of a distinct crime, eachis. guilty of a criminal offense, but the offense of which eachis guilty is separate and distinct from that of the other. It follows that the definitions of accessory, 4 Thetrial court did not specify in its order whetherit was granting leave to amend. However, becausethe defect in the indictment involves a question of law, namely whether defendant Burumis legally capable of committing the charged crimes, weconstrue the order as denying leave to amendthe indictment. 15 aider and abettor([] §§ 31, 971) do not operate to subject either to prosecution under the section proscribing the act of the other, and neitherfalls within the code definition of an accomplice asto the act of the other (id.). Bribery is sucha crime. The giver whose offenseis specifically made a crime ([] § 67) is not an accomplice in the separate and distinct crime ([] § 68) of the receiver [citations].” (Jd. at pp. 803-804.) _ The indictmentin this case alleges that defendant Burum was the person who offered the alleged bribe to the other defendants. Therefore, under Wolden he could not as a matter of law aid and abet any other defendantin receipt of the bribe as alleged in target crimes | and 2, and in counts4,5, 7 and 8. On that basis, the trial court sustained defendant Burum’s demurrerto those counts. The People contend Woldenis inapplicable because it was concerned only with the issue of whether any of the witnesses were accomplices within the meaning of section 1111, which protects a defendant from conviction based solely upon the uncorroborated testimony of an accomplice. It also defines an “accomplice” as “one whois liable to prosecution for the identical offense chargedagainstthe defendant ontrial in the cause in which the testimony of the accomplice is given.” (§ 1111.) Woldenis notlimited to section 1111,and instead involves application of the principle that “{w]here the cooperation oftwo or more persons is necessaryto the commission ofthe substantive crime, and there is no ingredient of an alleged conspiracy that is not present in the substantivecrime, then the persons necessarily involved cannot be charged with conspiracy to commit the substantive offense and also with the 16 substantive crimeitself. [Citations.] This is the ‘concert of action rule’ or Wharton’s Rule. (1 Anderson, Wharton’s Criminal Law and Procedure (1957) p. 191.) Theclassic Wharton’s Rule has been applied to crimes characterized by a general congruence ofthe agreement and the completed offenses. The rule is considered in modern legal thinking as an aid in construction ofstatutes, a presumption that the Legislature intended the general conspiracy section be merged with the more specific substantive offense. [Citation.]” (People v. Mayers (1980) 110 Cal.App.3d 809, 815, citing among other cases, lannelli v. United States (1975) 420 U.S. 770, 785-186.) Because wereject the People’s argument that Wolden was limited to the issue of corroboration, we will not address the People’s arguments regarding principles pertinent to corroboration of accomplice testimony. Our conclusion that Woldenis not limited to section 1111 also requires us to reject the People’s assertion that the previously quoted principal is obiter dictum. Specifically, the People contendthe principle that the bribe giver cannot aid and abetthe bribe receiver is obiter dictum because the issue in Wolden was whetherthetrial court correctly instructed the jury that the bribe giver and the bribe receiver were not accomplices of each other, and therefore corroboration of the receiver’s testimony is not required. Weaddressed the distinction between ratio decidendi and obiter dictum in Krupnick v. Hartford Accident & Indemnity Co. (1994) 28 Cal.App.4th 185 (Fourth Dist., Div. Two), in which we quoted Witkin for the proposition that “‘‘[t]he ratio decidendi [holding of case] is the principle or rule whichconstitutes the ground ofthe decision, and 17 it is this principle or rule which hasthe effect of a precedent. It is therefore necessary to read the language ofan opinionin thelight ofits facts and the issues raised, to determine (a) which statements of law were necessary to the decision, and therefore binding precedents, and (b) which were arguments and general observations, unnecessary to the decision,i.e., dicta, with no force as precedents.”” (Jd. at p. 199, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 783, p. 753; see also Aresov. CarMax, Inc. (2011) 195 Cal.App.4th 996, 1005-1006.) The issue in Wolden was whether, in a prosecution ofa tax collector for receiving bribes from property owners, the testimonyof the bribe giver had to be corroborated as required by section 1111. Whether a bribe giver and a bribe receiver are accomplices of each other wasthe issue the Wolden court had to decide in order to resolve the corroboration question. Therefore,its resolution of that issue is not obiter dictum. Evenifwe were to agree with the People’s obiter dictum claim, we nevertheless would confirm the underlying legal principle because it was discussed andapplied in People v. Davis (1930) 210 Cal. 540, which held, “It is likewise true that since 1915, under the amendmentofthat year to section 1111 of the Penal Code providing that an accomplice is one whois liableto the prosecution for the identical offense charged against the defendantontrial, the giver andreceiver of a bribe are no longer accomplices . one to the other (although that was formerly the law of this state, People v. Coffey, 161 Cal. 433 [39 L.R. A. (N. S.) 704, 119 Pac. 901]), inasmuchas the asking or receiving a 18 bribe is made a separate offense from offering or giving a bribe undersection 68 of the Penal Code.” (d. at p. 557.) Application ofthe principle set out in Wolden—namely that the person who gives or offers a bribe cannot, as a matter of law, aid and abet the person whoreceives the bribe—requires us to affirm thetrial court’s order sustaining defendant Burum’s demurrer to counts 4, 5, 7 and 8. Moreover, Wolden also holdsthat the bribe giver and the bribe receiver cannot be “guilty of a conspiracy, because the two crimes require different motives or purposes.” (Wolden, supra, 255 Cal.App.2dat p. 804, citing People v. Keyes (1930) 103 Cal.App. 624 [opinion of Supreme Court denying hearing].) Thus, we concludethetrial court also correctly sustained defendant Burum’s demurrerto target crimes | and 2 of the conspiracy charged in count 1. Thetrial court purported to overrule defendant Burum’s demurrerto target crimes 1 and 2 with respect to the allegation that he conspired with persons unknown to commit the two crimesin question, but we dismiss those allegations as well. The identity of the person with whom defendant Burum conspired cannotsave the allegations of the indictment because the crimes defendant Burum allegedly conspired to commit are ones the law states he cannot commit. Therefore, the trial court should have dismissed counts 4, 5, 7 and 8, and the related target crimes, as to defendant Burum. b. Defendant Erwin’s Petition for Writ ofMandate Although defendant Erwin joined in defendant Burum’s demurrer, the trial court overruled his demurrerto target crimes 1 and 2, and counts 4, 5, 7 and 8, because it found 19 the indictmentalleged he was an agent of both the bribe giver (defendant Burum) and the bribe receivers (defendants Biane and Kirk and unindicted coconspirator Postmus). Defendant Erwin contendsthetrial court erred. We disagree. Thetrial court relied on People v. Davis, supra, which holds “whenthe bribeis accomplished through the medium of an agent, or go-between,or intermediary, the mere fact that the evidence is conclusive that such emissary is the agent or accomplice of one of the parties does not necessarily determine that such emissary is not likewise the agent or accomplice ofthe otherparty to the transaction. We can see no impossibility, legal or otherwise, in a person acting as the agent or accomplice of both the bribe giver and the bribe receiver. Each case, of course, must turn on its own facts and circumstances, an d if there is any doubt as to the proper status of the emissary, the question is one, under properinstructions,for thejury. [Citation.]” (People v. Davis, supra, 210 Cal. at pp. 557-558.) Relying on People v. Davis,the trial court foundthat the indictment alleged defendant Erwin “is accused of being an intermediary in Burum’sbribery of Postmus, Biane, and Kirk [whoare] not the payor of the bribes. Erwin’s involvementin those transactions was not necessary to the commission of the crimes. Under Wolden{,] Erwin cannotbe prosecuted for conspiring with Burum to bribe Erwinbuthe canbe prosecuted for conspiring with Burum to bribe Postmus, Biane and Kirk.” Therefore, the trial court overruled defendant Erwin’s demurrerto target crimes 1 and2 alleged in count1, and counts 4, 5, 7 and 8. 20 Thetrial court’s analysis is wrong, but the conclusion is correct under People v. Davis—defendant Erwin, as an alleged intermediary, can be the agent of both the bribe giver and the bribe receiver, and as an agent of the receiver can be found to have aided and abetted and conspired to receive a bribe. However, the Wolden court discussed and distinguished People v. Davis after first acknowledging “some difficulty in reconciling the rule that giver and receiver do not have the same motive with the view that a single intermediary can simultaneously entertain both motives.” (Wolden, supra, 255 Cal.App.2d at p. 804.) The Wolden court recognized it was bound by the holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, and then distinguished People v. Davis onits facts, noting that the intermediary in that case “gave no moneyof his own and received no benefit from the action induced by payment. Thus he could be an accomplice of the bribe receiver.” (Wolden,at p. 804.) In this case, defendant Erwin contendsthe factualallegations of the indictment establish that he acted only as an agent of defendant Burum,the bribe giver. Under Wolden, such facts would constitute a complete defense to the aiding and abetting bribery charges because defendant Erwin, as an agent only of defendant Burum,the bribe giver, would stand in defendant Burum’s shoes. The facts in Wolden that the court relied on to conclude the intermediaries in that case were agents only of the bribe givers, were that they each paid moneyof their own and benefitted from the action induced by the bribe. (Wolden, supra, 255 Cal.App.2d at pp. 804-805.) There are no similar factual allegations in the indictmentin this case. 21 However, we do not view the facts cited in Wolden as exclusive. The indictmentin this case alleges specific facts that connect defendant Erwin with defendant Burum, and also with Postmus, one ofthe bribe receivers. Moreparticularly, in addition to the previously noted allegation that in 2006 defendant Erwin was the agent of defendant Burum, the information alleges that defendant Erwin joined the conspiracy and conveyedvariousthreats and/or inducements from defendant Burum to Postmus, defendant Biane, and defendant Kirk; defendant Burum offered to pay defendant Erwinifhe helped obtain a settlement favorable to Burumin the Colonies case; defendant Burum paid defendant Erwin $100,000after defendant Burum received a substantialportion of the Colonies settlement from the county; defendant Erwin claimed to have created political mailers, which disclosed Postmus wasaddicted to drugs,in order to persuade Postmus to convince defendant Bianeto vote in favor ofsettling the Colonies lawsuit; defendant Erwin reputedly said the mailers would not go outif the lawsuit wassettled on terms defendant Burum found favorable; defendant Erwin createdpolitical mailers that depicted defendant Biane unfavorably, and those mailers were to be used to influence defendant Biane to vote in favor ofa settlement in the Colonies lawsuit; after the Board approvedthe Colonies _ settlement, defendant Burum hosted defendantErwin ona private jet trip to New York and Washington, D.C., where he provided meals, refreshments, lodging, watches, entertainment, spending money, andprostitutes as gifts for defendant Erwin’s assistance in obtaining the Colonies settlement from the county. 22 With respect to Postmus, an alleged bribe receiver, the indictment includes the factual allegations that in January 2007 he appointed defendant Erwin to the position of assistant assessor for the County of San Bernardino, and that “[o]n or between October1, 2006, and November28, 2006, Postmus and [defendant] Burum engaged in negotiations concerning the settlement amount of the Colonies lawsuit at the Doubletree Hotel in Ontario with [defendant] Erwin and [Patrick] O’Reilly [an alleged media consultant for defendant Burum andan unindicted coconspirator] acting as intermediaries.” For purposesof pleading a public offense, the noted allegations are sufficient to align defendant Erwin with Postmus, and thus make him an alleged agent of a bribe receiver. In other words, we are unable to say as a matter of law that the allegations are insufficient to state a theory ofliability for conspiracy to commit bribery and/or receiving a bribe, as well as aiding and abetting Postmusin committing those crimes. Therefore, the allegations in count 4 and count 7 that defendant Erwin aided and abetted Postmusin receiving a bribe are sufficient to state a public offense against defendant Erwin such that the trial court correctly overruled his demurrerto those counts, and to the conspiracy allegation in count 1 based on target crimes 1 and 2. We cannot say the same about the allegations in counts 5 and 8 with respect to defendant Erwin aiding and abetting defendant Biane. The indictment specifically alleges that defendant Erwin wasthe agent of defendant Burum and that defendant Erwin agreed to and did accept money from defendant Burum in return for influencing the votes of Postmus and defendant Biane. 23 Unlike the allegations discussed above that defendant Erwin acted as the intermediary for defendant Burum and Postmusin settling the Colonies case, and that afterward Postmus appointed defendant Erwinto assistant county assessor,there are no factualallegations that suggest defendant Erwinacted on behalf of defendantBiane. As aresult, we must conclude the indictmentis insufficient as a matter of law to state a public offense against defendant Erwin on counts 5 and 8 because it appears on the face of the pleading that he acted only as an agentofthe bribe giver, defendant Burum,in persuading defendant Bianeto accept a bribe. Consequently, the indictment does not allege facts that establish a public offense, namely that defendant Erwin aided and abetted defendant Biane in receiving a bribe. Therefore, the trial court should have sustained defendant Erwin’s demurrer to counts 5 and 8. 2. Misappropriation ofPublic Fundsin Violation ofSection 424 (Alleged in Count 1 As Target Crime 3, and in Counts 12 and 13 Against All Four Defendants) The indictmentalleges in count | that all defendants conspired to commit the crime of misappropriation of public funds in violation of section 424 (target crime 3, also referred to in the indictment as “public officer crime”). In count 12, the indictment alleges that defendant Biane on November28,2006, committed the crime of public officer crime, in violation of section 424, by being an officer and a person described in section 424 “charged with the receipt, safekeeping,transfer, and distribution of public moneys” andthat he did “in a mannernotincidental and minimalwithout authority of law, appropriate the same, and a portion thereof, to personal use and the use of another 24 and loaned the sameor any portion thereof and madea profit out ofand used the same for any purpose not authorized by law and fraudulently altered, falsified, concealed, destroyed, and obliterated any account.” Count 13 alleges that defendants Kirk, Burum and Erwin aided and abetted Postmus and defendant Biane in violating section 424. All four defendants demurredto the target crime 3 allegation in count | that they conspired to violate section 424, and to the charges alleged in counts 12 and 13 on the ground that the statute appliesonly to the unauthorized acts of public officials. Because county supervisors are authorized by law to settle lawsuits, defendants asserted they ~ could notbeliable either as conspirators or aiders and abettors for violating section 424. In particular, defendant Burum (joined by defendants Erwin and Kirk) and defendant Biane argued among otherthings that section 424 according to its express language applies to embezzlementof public funds, or the manipulation of accounts and otheracts not authorized by law. Members of a county board of supervisors are authorized by law to settle lawsuits. Therefore, defendants argued section 424 does not apply to the alleged paymentofa settlementin return for an alleged bribe. Alternatively, defendant Burum argued that any otherinterpretation of the statute would require inquiry into the subjective motives of the supervisors in question and that inquiry would violate the separation of powers doctrine as discussed in D’Amato v. Superior Court (2008) 167 Cal.App.4th 861 (D’Amato). 25 Thetrial court agreed,relying in part on D’Amato, and sustained defendants’ demurrersto target crime 3 of the conspiracy charged in count1, and to counts 12 and 13. Althoughnotexpressly stated, that ruling necessarily was without leave to amend. a. The People’s Appeal The People contendthetrial court erred in sustaining defendants’ demutrers to the section 424 allegations, first because the trial court “improperly blended two different concepts,” and next because the concepts individually either do not apply orthetrial court applied them incorrectly. Weagree. Thefirst issue we must resolve is whetherthe alleged act of approving a settlement in return for a bribe, or a kickback, violates section 424, whichprovides, “Bach officer ofthis state, or of any county, city, town,or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursementof public moneys, whoeither: [4] 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another; or [§] 2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law... [§] Is punishable by imprisonmentin thestate prison for two, three, or four years, and is disqualified from holding any office in this states. [§] (6) As used in this section, ‘public moneys’ includesthe proceeds derived fromthe sale of bonds or other evidence or indebtedness authorized by the legislative body ofanycity, county, district, or public agency. [{] (c) This section does not apply to the incidental and minimal use of public resources authorized by Section 8314 of the Government Code.” 26 Defendants argued in thetrial court, as they doin this appeal, that section 424 only applies when the public official’s action, whichin this caseis approving a settlement, is “without authority of law.” Because county supervisors have legal authority to approve the settlement of lawsuits, defendants contend section 424 does not apply. Defendants’ interpretation of the statutory languageis incorrect. According to section 424, the action that must be “without authority of law”is the public official’s act of appropriating public funds“or any portion thereof,to his or her own use,or to the use of another.” (See Stark v. Superior Court (2011) 52 Cal.4th 368, 390 [Section 424(a)1 applies to a defendant who appropriates public money to his own use or use of another without authority of law.”].) In this case, the indictment can reasonably beconstrued to allege that the identified county supervisors conspired to appropriate and did appropriate public funds unlawfully by authorizing the county to pay $102 million to Colonies in settlementofits lawsuit knowing that they would receive payments from defendant Burum,the beneficiary of that settlement, in the form of bribes or kickbacks. The allegations can reasonably be construedto allege the county supervisors knew the bribes or kickbacks would be paid out of the money they had appropriated for the settlement. Asa result of their alleged knowledge that part of that appropriation would be to the supervisor’s own use, and consequently “without authority of law,” the indictmentalleges a violation of section 424. In sustaining defendants’ demurrersto the section 424 violations alleged in the indictment, the trial court incorrectly focused on the purportedly lawful act ofsettling the 27 lawsuit and ignored the additionalallegation that the identified supervisors appropriated a portion ofthe settlement moneyto their own use without authority of law by obtaining a kickback or bribe. The alleged act of approving a settlement knowingit includes an appropriation of money, a portion of which would goto their own use, is the act alleged to be without authority of law. The supervisors’ alleged act of approving a settlement they know includes an unlawful appropriation of moneyto their own use doesnot require an inquiry into the — motives of the supervisors and therefore does not violate the separation of powers doctrine. Consequently, thetrial court also incorrectly relied on D ‘Amatoto sustain defendants’ demurrers to target crime 3 of the conspiracy charge, and counts 12 and 13. In D’Amato, the defendantcity administrator recommended formation ofa joint powers committee in order to obtain fundingfora city project, and then the defendant approved a contract with his codefendant’s consulting firm to act as the project manager. The codefendant, who was also the city’s director of public works, was indicted for having a conflict of interest in violation of Government Code section 1090, and the defendantcity administrator was charged with aiding and abetting the codefendantin committing that violation. The court in D’Amato held the separation of powers doctrine precluded _ prosecution of the defendant city administrator for aiding and abetting the codefendantin violating Government Code section 1090 because,absenta financial interest on the part of the city administrator (and thus presumably his own conflict of interest), the 28 prosecution wasbased on the city administrator’s legally protected legislative acts. In particular, the court first observed that the object of Government Code “‘section 1090 of prohibiting individuals “from being financially interested in any contract made by them in their official capacity or by the body or board of which they are membersis to insure absolute loyalty and undivided allegianceto the best interest of the [government agency] they serve and to removeall direct and indirect influence of an interested officer as well as to discourage deliberate dishonesty. [Citations.]” [Citation.]’ [Citation.]” (D’Amato, supra, 167 Cal.App.4th at p. 868.) “‘The evil to be thwarted by section 1090is easily identified: Ifa public official is pulled in one direction by his financial interest and in another direction by his official duties, his judgment cannot and should notbetrusted, even if he attempts impartiality.” [Citation.] Thus, where a public official holds a personalinterest, criminal liability may accrue even in the absenceof ‘actual fraud, dishonesty, unfairness or loss to the governmental entity, and... without regard to whether the contract in question is fair or oppressive.’ [Citation.]” (D’Amato, at pp. 868- 869.) “By creating a conclusive presumption of divided loyalty where a public official holds a personal financial interest, the Legislature avoided the prospect of executive and Judicial officers delving into the subjective motivations of public officials performing their legislative duties. This respect for the deliberative processes of local governmental agencies derives from the separation of powersdoctrine, embodied in the California Constitution, article III, section 3: ‘The powers ofstate governmentarelegislative, executive, and judicial. Persons charged with the exercise of one power may not exercise 29 either of the others except as permitted by this Constitution.’”” (/d.at p. 869.) “When t he Legislature confers legislative power on a municipal body, a judicial or executive body maynot interfere with that legislative power,except as the Legislature authorizes. [Citation.] [J] ‘An... important corollary of the separation of powers doctrineis cour ts cannotinquire into the impetus or motive behind legislative action.’ [Citation.] “[T]he rule barring judicial probing of lawmakers’ motivationsapplies to local legislators as well as to membersofthe state Legislature or of Congress.’ [Citation.]” (D’Amato,at pp. 869-870.) Unlike D’Amato,the indictmentat issue here alleges the identified supervisors had a financialinterest in the money they appropriated for the settlement and therefore violated section 424 by appropriating fundsto their own use without lawful authority. Noinquiry into their subjective motives is necessary. The indictmentalleges that defendant Biane was a county supervisor and therefore subject to liability under section 424. There are no similar allegations in the indictment with respect to the remaining defendants. The next issue we must resolve is whether the other named defendants, none ofwhom arealleged to be officers of the county, or persons chargedwith the receipt,safekeeping, transfer, or disbursement of public moneys,can be held criminally responsible ona theory of aiding and abettingor conspiracy to violate section 424. Long ago,in People v. Little (1940) 41 Cal.App.2d 797(Little) this court resolved that issue: “If authority be needed to support the conclusion that a person whois not an 30 official may be guilty, as a principal, in the crime of misuse of public funds, it may be found in the case of People v. West [(1935)] 3 Cal.App.2d 568 .....” (Id. at p. 805.) In People v. West; a deputy county treasurer loaned county funds to the defendantin return for the defendant’s check which was worthless because it was drawn on the defendant’s closed bank account. The defendant was charged with and convicted of violating section 424 on the theory of aiding and abetting, i.e., being the recipient of the embezzled money. The conviction wasaffirmed on appeal. Similarly, in Little, the defendant was charged with and found guilty of violating section 424 by embezzling public funds based onhis conduct of receiving and spending moneyhis girlfriend embezzled from her job as a bookkeeper with the city water department. That conviction was affirmed on appeal. In this case, defendant Burum’salleged act of offering and/or giving kickbacks or bribes to the county supervisors in return fortheir alleged act of approving the $102 million settlement is the conduct that renders the settlement an appropriation “not authorized by law,” and as such,a violation of section 424. Defendants Erwin and Kirk are alleged to have acted as the agents of defendant Burum in offering the bribe or kickback that in turn caused the county supervisors to have an interest in the settlement. The allegations adequately allege a public offense, namely a violation of section 424. For the noted reasons, we concludethetrial court should have overruled defendants’ demurrers to counts12 and 13, and to target crime 3 of the conspiracy charge. We will reverse the order sustaining the demurrersto thoseallegations and counts. 31 3. Improper Lobbying in Violation of Government Code Section 9054 (Alleged in Count 1 as Target Crime 4, and in Count 9 Against Defendant Kirk) The indictmentalleges as target crime 4, that defendant Kirk violatedGovernment Code section 9054 by conspiring with defendant Burum andhis alleged agent defendant | Erwin, to improperly influence San Bernardino County Supervisor Gary Ovitt to vote in favor of the Colonies settlement. The indictment charged defendant Kirk in coun t 9 with improper lobbying in violation of Government Code section 9054. Defendant Kirk demurred to the allegations on the groundthat Government Code section 9054 only applies to the State Legislature. Thetrial court overruled his demurrer. Defendant Kirk challengesthatrulingin his petition for writ of mandate. DefendantsBurum and Erwin also contendin their writ petitions that Government Code section 9054 applies only to membersofthe State Legislature, and therefore thetrial court should have sustained the ir demurrersto target crime 4 of the conspiracy charge. Wedisagree and concludethetri al court correctly overruled their demurrers. Government Codesection 9054states, in pertinentpart, that, “Every person who obtains, or seeks to obtain, money orother thing of value from another person upon a pretense, claim, or representation that he canor will improperly influence in any manner the action of any memberofa legislative body in regard to any voteor legislative matter, is guilty of a felony.” Defendants contendin their writ petitions that the phrase “a legislative body”is not defined in Government Codesection 9054, and when viewed in context, refers only 32 to the State Legislature and not a county board of supervisors. We do not sharetheir view. “Undersettled canons of statutory construction, in construing a statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words and give them ‘their usual and ordinary meaning.’ [Citation.] ‘The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous.’ [Citations.] ‘If the statutory language permits more than one reasonable interpretation, courts may consider otheraids, such as the statute’s purpose, legislative history, and public policy.’ [Citation.]” (Wmperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.) We do not share defendants’ view that the phrase “a legislative body”as used in Government Code section 9054 is ambiguous, but even if we were to agree, we nevertheless would not agree with their claim that the Legislature intended the phrase to mean the California State Legislature and not other legislative bodies such as a county board of supervisors. Defendants base their claim in part on legislative history, including margin notes contained in the chaptered bill, and also on the fact that section 9054 is located in a part of the Government Codethat purportedly pertains only to state government, namely “Title 2, (Governmentofthe State of California), Division 2, (Legislative Department), Part 1, (Legislature), Chapter 1.5, (General), Article 3, (Crimes against the Legislative Power).” 33 Despite its placementin the code,it is apparent from other provisions in Article 3—all adoptedin 1943 as part of the codification of the Government Code(see Stats. 1943, ch. 134, p. 809)}—that the California Legislature distinguished between the “California Legislature” and “a legislative body.” The Government Coderefers to the - “California Legislature,” sometimes also accompanied bya reference to “either of the houses composing it” when it means the California State Legislature. (See, e.g., Gov. Code, §§ 9050, 9051, 9052, 9053, 9053.5.) In using the phrase “a legislative body”in Government Code section 9054, the Legislature did notintend, as defendants claim,to limit that section only to the California Legislature. To putit bluntly, if the Legislature had meantto limit the statute in the mannerdefendants contend, the Legislature would havesaid so. We also do not share defendants’ view that the phrase “improperly influence” used in Government Codesection 9054 is unconstitutionally vague and/or overly broad. “As generally stated, the void-for-vagueness doctrine requires that a penal statute definethe criminal offense with sufficient definiteness that ordinary people can understand what conductis prohibited and in a mannerthat does not encourage arbitrary and discriminatory enforcement. [Citations.]” (Kolender v. Lawson (1983)461 USS. 352, 357.) The phrase “improperly influence” means“‘the use of personal,or any secret or sinister, influence uponlegislators” either in support of or opposition to the passage of an act, as opposed to “‘the open advocacyofthe same before the legislature or any 34 committee thereof in open session.” (Crawford v. Imperial Irrigation Dist. (1927) 200 Cal, 318, 321-322.) Government Code section 9054 makesit a felony for a person to ask for or obtain money(or other thing of value) upon the pretense, representation, or claim that the person canor will use personal, secret or sinister influence on a member of a legislative body in regard to a vote orlegislative matter. In arguing the statute is vague, defendant Erwin cites examples of conductthat could constitute “improper influence,” such as onelegislator offering to vote for another legislator’s bill if that legislator were to return the favor. That conduct does not violate Government Code section 9054 becausethereis no solicitation of moneyora thing of value by the first legislator. Contrary to defendant Erwin’s claim,the statute does not criminalize legitimate advocacy;it makes it unlawful for a person to claim in return for money or some item of value that one can “improperly influence in any mannerthe action of any memberofa legislative body in regard to any vote or legislative matter.” The statute does not criminalize protected speech, as defendants contend; it criminalizes influence peddling,i.e., claiming in return for any form of compensation that one can and/or will improperly influence a memberofanylegislative body in regard to a vote or other matter. In short, and contrary to defendants’ assertions, Government Code section 9054 does not make it unlawful for a person to simply say he or she can improperly influence a memberofa legislative body. Foreach of the reasons discussed, we reject defendants’ various challenges to the constitutionality of Government Code section 9054 and concludethetrial court properly 35 overruled their demurrers to target crime 4 in the conspiracy charge, and defendant Kirk ’s demurrer to count 9. 4. Conflict ofInterest in Violation of Government Code Section 1090 (Alleged in Count 1 as Target Crime 5, and in Count 11 Against Defendants Burum and E rwin, for Aiding andAbetting Defendant Biane, Defendant Kirk and Postmus) Count11 of the indictment charges defendants Burum and Erwin with violating Government Code section 1090 byaiding andabetting defendants Kirk and Biane, a nd Supervisor Postmus, to commit a conflict ofinterest. The conspiracy alleged in count1 of the indictment identifies Government Codesection 1090 as target crime 5. Defendants Burum,Erwin and Kirk demurred to count 11 and the conspiracy allegation in count | based ontarget crime 5 on the groundthat, as a matter of law, the statute does not apply to the acts ofa private citizen. The trial court disagreed and overruled their demurrers. Defendants Burum and Erwin contendin their writ petitions that the trial court erred and that Government Codesection 1090 only applies to governmentofficials and government employees, but not to private citizens. Therefore, as a matter of law, they cannotviolate that statute and thetrial court should have sustained their demurrers. We agree. Government Codesection 1090 states, “Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Norshall state, county, district, judicial district, and city officers or 36 employees be purchasersat any sale or vendors at any purchase madeby them intheir official capacity.” The penalty for being a public officer or other person precluded by law from making a contract in which the person has aninterest is set out in Government Codesection 1097.5 Aspreviously discussed in D’Amato, supra, 167 Cal.App.4th 861, our colleagues in Division Three of this court observed that “the Legislature’s wording of [Government Code] section 1090 evinces the intent to exclude aider and abettorliability. Specifically, ‘where the Legislature has dealt with crimes which necessarily involve the joint action of two or more persons, and where no punishmentat all is provided for the conduct, or misconduct, of one of the participants, the party whose participation is not denounced by statute cannot be charged with criminal conduct on either a conspiracy or aiding and abetting theory. [Citation.] So, although generally a defendant may beliable to prosecution for conspiracy as an aider and abettor to commit a crime even though he or she is incapable of committing the crimeitself, the rule does not apply wherethe statute defining the substantive offense discloses an affirmative legislative policy the conduct of oneof the parties shall go unpunished. [Citation.]’ [Citation.]” (/d. at p. 873; see also In re Meagan R. (1996) 42 Cal.App.4th 17, 24.) 5 Government Codesection 1097 states, “Every officer or person prohibited by the lawsofthis state from making or being interested in contracts, or from becoming a vendoror purchaserat sales, or from purchasingscrip, or other evidences of indebtedness, including any memberof the governing board of a schooldistrict, who willfully violates-any of the provisions of such laws, is punishable bya fine of not more than one thousanddollars ($1,000), or by imprisonmentin thestate prison, and is forever disqualified from holding anyoffice in this state.” 37 Weshare our colleagues’ view that the Legislature intended Government Code ~ section 1090 to exclude criminalliability on either a conspiracy or an aiding and abe tting theory for anyone other than public officials and public employees with a financia l interest in the underlying contract. Neither defendant Burum nor defendant Erwin wasa public official at the time alleged in the indictment. Therefore, the trial court should hav e sustained their demurrers to count11, and to target crime 5 of count1. Til. | CONCLUSION Thetrial court correctly sustained the demurrer of defendant Burumto target crimes 1 and 2 of the conspiracy alleged in count1, and to the crimes charged in c ounts 4,5, 7 and 8. Wewill affirm that ruling and will further direct thetrial court to stri ke target crimes 1 and 2 intheir entirety as to defendant Burum. Thetrial court correctly overruled defendant Erwin’s demurrerto target crimes ] and 2, and to counts 4 and 7, which allege, respectively, that he conspired with defendant Burum and with William Postmus, a memberofthe San Bernardino County Board of Supervisors, to ask for and/or receive a bribe, and aided and abetted Postmusin committing those crimes. Thetrial court, however,erred in overruling defendant Erwin’s demurrer to counts 5 and 8 that allege he aided and abetted in committing those same crimes with respect to defendant Biane asthe recipient ofthe bribe. Therefore, we will issue a writ of mandate directing thetrial court to sustain defendant Erwin’s demurrerto counts 5 and 8 and dismiss those counts as to him. The trial court erred in sustaining defendants’ demurrersto the conspiracy alleged in count | based on target crime 3, the crime of misappropriating public fundsin - violation of section 424, as well as to count 12, which alleged defendant Biane violated that section, and count 13, which alleged defendants Kirk, Burum and Erwin aided and abetted defendant Biane and William Postmusin violating that section. Therefore, we will reverse the trial court’s ruling in that regard. Thetrial court also erred in overruling the demurrers of defendants Erwin and Burum to target crime 5, which alleges they conspired with Postmus, defendant Biane and defendant Kirk to commit the crime of having a conflict of interest in violation of Government Codesection 1090. Thetrial court also erred in overruling the demurrers of defendants Erwin and Burum to count 11, which charged them with aiding and abetting Postmus, defendant Biane and defendant Kirk in violating Government Codesection 1090. Therefore, we will direct a writ of mandate issue commandingthetrial court to sustain the demurrers of defendants Burum and Erwin to count 11, and target crime 5 of the conspiracy alleged in count 1. Wealso will deny defendant Kirk’s petition for writ of mandate becausethetrial court did not err in overruling his demurrer to count9, the charge that he misappropriated fundsin violation of Government Code section 9054, and target crime 4 of the conspiracy charged in count 1, which alleged defendant Kirk conspired with defendant Burum to commit that crime. 39 Finally, we reject defendant Burum’s contention in his writ petition that we must dismiss the conspiracy charged in count 1, because we conclude it adequately alleges two viable target crimes—target crime 3, whichalleges he conspired with defendants Erwin, Kirk and Biane and with Postmusto misappropriate public funds in violation of Penal Codesection 424, and target crime 4, which alleges he conspired with Kirk to improperly lobby Supervisor Ovitt in violation of Government Code section 9054. The indictment, although lengthy and perhaps imprecise, adequately alleges conspiracy to commit the tw o noted crimes. IV. DISPOSITION Thetrial court’s ruling sustaining defendants’ demurrers to counts 12 and 13, and the related predicate crimes alleged in the conspiracy charged in count1, is reversed. The trial court is further directed to sustain in its entirety defendant Burum’s demurrerto the conspiracy alleged in count 1 based on the predicate crimes in Penal Code section 165 and Penal Code section 86 andto strike those allegations as to defendant Burum. A writ shall issue directing the Superior Court of San Bernardino County to: (1.) Sustain the demurrer of defendants Burum and Erwin to count 11, and the related predicate crime alleged in the conspiracy charged in count1; (2.) Sustain the demurrer of defendant Erwin to counts 5 and 8, andthe related predicate crimealleged in count1, and dismiss counts 5 and 8. 40 Petitioners are DIRECTEDto prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service onall parties. Thetrial court’s ruling is otherwise affirmed, and the matter is remandedto the trial court. . NOT TO BE PUBLISHEDIN OFFICIAL REPORTS MCKINSTER Acting P.J. We concur: RICHLI J. MILLER J. 4] DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Paul Biane,et al. I declare: No.: E054422 I am employedin the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. On December10, 2012, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid,in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Stephen G. Larson (2 copies) Attorney at Law Arent Fox LLP 555 WestFifth Street, 48th Floor Los Angeles, CA 90013 Mary Carter Andrues (2 copies) Attorney at Law Arent Fox LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013 David M. Goldstein (2 copies) Attorney at Law 10535 Foothill Blvd., Suite 300 Rancho Cucamonga, CA 91730 Rajan R. Maline (2 copies) The Law Offices of Rajan R. Maline 3750 University Avenue, #680 Riverside, CA 92501 Steven L. Harmon Law Offices of Grech & Firetag 7095 Indiana Avenue, Suite 200 Riverside, CA 92506 Paul Grech,Jr. (2 copies) Law Offices of Grech & Firetag 7095 Indiana Avenue, Suite 200 Riverside, CA 92506 Chad W.Firetag (2 copies) Law Offices of Grech & Firetag 7095 Indiana Avenue, Suite 200 Riverside, CA 92506 R. Lewis Cope Deputy District Attorney San Bernardino District Attorney's Office Public Integrity Unit 303 W. 3rd Street, 5th Floor San Bernardino, CA 92415 Clerk of the Court Attn: Honorable Brian McCarville San Bernardino County Superior Court 401 N. Arrowhead Avenue San Bernardino, CA 92415-0063 Clerk of the Court California Court of Appeal Fourth Appellate District, Div. 2 3389 12th Street Riverside, CA 92501 and I furthermore declare, I electronically served a copy of the above document from Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on December 10, 2012 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare underpenalty of perjury under the laws ofthe State of California the foregoingis true and correct and that this declaration was executed on December10, 2012, at San Diego, California. Bonnie Peak eoannnsOgatk Declarant Signature SD201 1801249 70656737.doc