PEOPLE v. BIANE

Respondent, James Howard Erwin, Joinder to Brief on the Merits

Cal.April 16, 2013

Case No. 8207250 In the | SUPREME COURT FILED Su, TEME Court APR 16 2013 Frank A. McGuire Clerk of the Deputy e ° mm State Cale OTMd (F°\8.25(b) . Se THE PEOPLE OF THE STATE OF CALIFORNIA, PlaintiffandAppellant, V. PAUL BIANE, MARK KIRK, JAMES ERWIN, JEFFREY BURUM, Defendants and Respondents. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION TWO CASE No. E054422, SAN BERNARDINO COUNTY SUPERIOR COURT CASE No. FSB 1102102 HON. BRIAN MCCARVILLE, JUDGE DEFENDANT AND RESPONDENT JAMES ERWIN’S JOINDER TO JEFFREY ~-BURUM’S ANSWERBRIEF AND MOTION FOR JUDICIAL NOTICE THE LAW OFFICES OF RAJAN R. MALINE RAJAN R. MALINE (SBN 190401) 3750 UNIVERSITY AVENUE,SUITE 680 RIVERSIDE, CALIFORNIA 92501 TELEPHONE: (951) 779-0221 FACSIMILE: (951) 779-0229 ATTORNEYS FOR DEFENDANT AND RESPONDENT, JAMES ERWIN By this joinder, Defendant/Respondent James Erwin joins Defendant/Respondent Jeffrey Burum’s AnswerBrief in responseto the People’s Opening Brief. Mr. Erwin respectfully requests that the Court affirm the Court ofAppeals’ decision to overturn thetrial court and sustain the demurrer as to Counts 5 and 8 of the Indictment charging Mr. Erwin with aiding and abetting the receipt of bribes by former Supervisor Paul Biane, and affirm the Court ofAppeals as to Count 11 charging Mr. Erwin with the violation of Government Code Section 1090. Mr. Erwin also asks that this Court direct the trial court to sustain the demurrer to Count 1, the conspiracy charge, with respect to the target crimes associated with these bribery charges and Section 1090. Mr. Erwin also requests that this Court direct the trial court to sustain the demurrer to Count 1 on the basis that Government Code Section 9054 is overbroad and void for vagueness. Mr. Erwin further joins Mr. Burum’s Motion for Judicial Notice requesting that this Court take judicial notice of Exhibits A-F attached thereto. The Indictment alleges that Mr. Erwin acted as Mr. Burum’s agent and aided and abetted him in giving bribes to Messrs. Postmus and Biane to facilitate a settlement oflitigation between Colonies Partners and the County of San Bernardino. (CT, 2:16-17, 6:21-25.) Count 1 ofthe Indictmentalleged the existence of a conspiracy between Mr. Erwin and the other co-defendants to commit severaltarget crimes, including bribery, conflict of interest, and violations of Government Codesection 1090 and 9054. Counts 4 and 7 ofthe Indictmentalleged that Mr. Erwin aided and abetted former Supervisor William Postmusin receiving bribes. Counts 5 and 8 alleged that Mr. Erwin aided and abetted Supervisor Bianein receiving bribes. Mr. Erwin demurred to these counts on the basis that a bribe giver cannot be convictedofthe crime of aiding and abetting, or conspiring in, the receipt of the samebribe heis alleged to have given. The trial court below determined that Mr. Erwin acted as an “intermediary,” and thus could be “prosecuted for conspiring with [Mr.] Burum to bribe [Messrs.] Postmus, Biane and Kirk.” (CT, 257:17-26.) The Court ofAppeal determined that with regard to the allegations involving Supervisor Postmus, the People alleged sufficient facts for Counts 4 and 7 to survive at the demurrer stage.’ (Opinion, p. 23.) Butit reversedthe trial court’s finding as to Counts 5 and 8,holdingthat the People had failed to allege any facts that Mr. Erwin aided and abetted Mr. Biane’s receipt of a bribe. (/d.) Thus, the Court ofAppealcorrectly decided that the Indictmentfailed to allege facts to support a charge that Mr. Erwin aided and abetted, or conspired with, Mr. Biane to receive a bribe. In sum, Mr. Erwin wasalleged to be on the “other side ofthe transaction” from Mr. Biane. People v. Lips (1922) 59 Cal.App. 381 (holding that wife of bribe giver could not be convicted of aiding and abetting bribe receivers). Therefore, underthe rule set forth in People v. Clapp (1944) 24 Cal.2d 835, 838, and People v. Wolden (1967) 255 Cal.App.2d 798, 803-04, the California Court ofAppeal correctly decided that Mr. Erwin cannot be prosecuted as a bribe receiver when he merelyis alleged to be the giver ofthe same bribe. For this reason and the other reasons described in Mr. Burum’s AnswerBrief (see Ans. Br. At Parts III.A-C), the Court ofAppeals’ decision to grant Mr. Erwin’s writ of mandate as to Counts5 and 8, and the associated target crimes supporting Count 1, was proper and should be affirmed by this Court.’ ' Mr. Erwin doesnot,atthis time, challenge the Court ofAppeal’s ruling as to Counts 4 and 7 regarding Mr. Erwin’s alleged concerted acts with Mr. Postmus. * As explained in Mr. Burum’s Motion filed March 6, 2013, the People’s attempt to invoke the discovery rule against Mr. Erwinis legally deficient, and the charges against Messrs. Burum and Erwinare time-barred on the face ofthe Indictment. This is a jurisdictional bar that should be addressed as a preliminary matter, particularly in light of the Court’s recent denial of 2 The Indictment, in Counts 1 and 11, also alleges that Mr. Erwin violated California Government Code Sections 1090 and 1097 based on an alleged conflict of interest in the eventual settlement between Colonies Partners and San Bernardino County. The Court ofAppeal, reversing the trial court, agreedthat “the Legislature’s wording of section 1090 evinces the intent to exclude aider and abettor liability,” and granted Mr. Erwin’s writ ofmandate on that ground. (Opn., p. 37, citing D’Amato v. Superior Court (2008) 167 Cal.App.4th 861.) Indeed, as Mr. Burum arguesin his AnswerBrief, Government Code Sections 1090 and 1097 should not and do not applyto privatecitizens. For these reasons and the reasons set forth in Mr. Burum’s AnswerBrief (see Ans. Br.at Part III-D), the Court of Appeal’s ruling also should be affirmed as to Count 11 and the associated target crime under Count1. As part of Count 1, Mr. Erwin also is accused of conspiring to violate Government Code Section 9054. The Court ofAppeal determined that the trial court was correct in overruling Mr. Erwin’s demurreras to this count, holding that the phrase “improperly influence” means “the use of personal, or any secretor sinister, influence uponlegislators.” (Opn., p. 34.) But to define Section 9054 in this mannerrenders thestatute unconstitutionally vague and overbroad by definition,as it criminalizes a large swath ofprotected First Amendmentactivities. Thus, for the reasons described above and in Mr. Burum’s AnswerBrief (see Ans. Br.at III.E), Mr. Erwinasksthat this Court overrule the Court ofAppealand direct the trial court to sustain his demurrerto the target crime in Count 1 based on the alleged Section 9054 violation. review in People v. Milstein (2012) 211 Cal.App.4th 1158, review den. (March 27, 2013) (holding that conspiracy charges are not subject to the discovery rule). Thus, for the reasons described above and in Mr. Burum’s Answer Brief, Mr. Erwin asks that this Court: e Affirm the Court ofAppeal’s decision to directthe trial court to sustain Mr. Erwin’s demurrer to Counts 5 and8 ofthe Indictment, and the associated target crimes alleged in Count 1; ¢ Affirm the Court ofAppeal’s decision to direct the trial court to sustain Mr. Erwin’s demurrer to Count 11 ofthe Indictment, andits associated target crime alleged in Count1; ¢ Overrule the Court ofAppeal’s decision that Government Code Section 9054 is constitutional, and direct the trial court to sustain Mr. Erwin’s demurrer to Count 1 on that basis. Respectfully submitted, Dated: April 15, 2013 THE LAW OFFICES OF RAJAN R. MALINE by. SZ Rajan R. Maline Attorneys for Defendant and Respondent JAMES ERWIN People v. Biane, etal. California Supreme Court Case No. S207250 PROOF OF SERVICE J am a citizen of the United States. My business addressis LAW OFFICES OF RAJAN MALINE. I am employedin the county ofRIVERSIDEwherethis service occurs. I am overthe age of 18 years, and nota party to the within cause. Onthe date set forth below, according to ordinary business practice, I served BY U.S. MAILthe following document described as: DEFENDANT AND RESPONDENT JAMES ERWIN’S JOINDER TO JEFFREY BURUM’S ANSWERBRIEF AND MOTION FOR JUDICIAL NOTICE I am readily familiar with my employer’s business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. Onthis date, I placed the document in envelopes addressed to the personsstated on the attached service list and sealed and placed the envelopes for collection and mailing following ordinary businesspractices. I declare under penalty ofperjury under the lawsofthe State of California that the aboveis true andcorrect. Executed on April 15, 2013, at RIVERSIDE,California. LISAJe b SERVICE LIST Melissa Anne Mandel OFFICE OF THE ATTORNEY GENERAL P.O. Box 85266 San Diego, CA 92101 (619) 645-2224 (619) 645-2191 fax melissa.mandel@doj.ca.gov Counsel for Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA Deputy D.A. Richard Lewis Cope SAN BERNARDINO COUNTY DISTRICT ATTORNEY 303 W. 3™ Street, 5" Floor San Bernardino, CA 92415 (909) 382-7609 (909) 388-6721 fax rcope@sbcda.org Counsel for Plaintiff THE PEOPLE OF THE STATE OF CALIFORNIA David M.Goldstein LAW OFFICE OF DAVID M. GOLDSTEIN 10535 Foothill Boulevard, Suite 300 Rancho Cucamonga, CA 91730 (909) 466-4757 (909) 980-5525 fax Dave@daveglaw.com Counsel for Defendant PAUL BIANE Paul Grech,Jr. LAW OFFICES OF GRECH & FIRETAG 7095 Indiana Avenue, Suite 200 Riverside, California 92506 (951) 682-9311 (951) 682-4289 fax firetag@yahoo.com paulgesq@pacbell.net Counsel for Defendant MARK KIRK Clerk of the Court Criminal Division Attn: Hon. Brian McCarville SAN BERNARDINO COUNTY SUPERIOR COURT 351 N. Arrowhead San Bernardino, CA 92415 Clerk of the Court Criminal Division Attn: Hon. Michael A. Smith SAN BERNARDINO COUNTY SUPERIOR COURT 351 N. Arrowhead San Bernardino, CA 92415 Clerk of the CourtCalifornia Court ofAppealFourth Appellate District, DivisionTwo3389 Twelfth StreetRiverside, CA 92501