PEOPLE v. BIANERespondent, Jeffrey Scott Burum, Request for Judicial NoticeCal.April 16, 2013 Case No. 8207250 In the | SUPREME COURTSupreme Court pREME CON State of California APR 16 2013 Frank A. McGuire Clerk : Deput THE PEOPLE OF THE STATE OF CALIFORNIA, pay Plaintiffand Appellant, V. . PAUL BIANE, MARKKIRK, 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 JEFFREY BURUM’S MOTION FOR JUDICIAL NOTICE ARENT FOX LLP STEPHEN G. LARSON (SBN 145225) MARY CARTER ANDRUES(SBN 138486) JONATHANE.PHILLIPS (SBN 233965) 555 WEST FIFTH STREET, 48TH FLOOR Los ANGELES, CALIFORNIA 90013-1065 TELEPHONE: (213) 629-7400 FACSIMILE: (213) 629-7401 ATTORNEYS FOR DEFENDANT AND RESPONDENT, JEFFREY BURUM Case No. S207250 In the Supreme Court ofthe State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiffand Appellant, V. . PAUL BIANE, MARKKIRK, 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 JEFFREY BURUM’S MOTION FOR JUDICIAL NOTICE ARENT FOX LLP STEPHEN G. LARSON (SBN 145225) MARY CARTER ANDRUES(SBN 138486) JONATHANE. PHILLIPS (SBN 233965) 555 WEST FIFTH STREET, 48TH FLOOR Los ANGELES, CALIFORNIA 90013-1065 TELEPHONE: (213) 629-7400 FACSIMILE: (213) 629-7401 ATTORNEYS FOR DEFENDANT AND RESPONDENT, JEFFREY BURUM MOTION FOR JUDICIAL NOTICE TO THE HONORABLEPRESIDING JUSTICE AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Petitioner Jeffrey Burum, through his attorneys, Arent Fox LLP, requests that this Court take judicial notice of the following documents as they relate to the issues set forth in his Answer Brief. Authority for this request is found in California Evidence Code §§ 450, 451(a), 452(a), (c), 453, and 459(d). The documents submitted for judicial notice that are attachedto this Motioninclude the following: Exhibit A: JudgmentofValidation dated March 29, 2007 filed in California Superior Court, County of San Bernardino, Case No. SCVSS 146272. Exhibit B: Legislative Counsel’s Digest for AB 3326. Exhibit C: CALCRIM Jury Instruction No. 2600. Exhibit D: CALCRIM Jury Instruction No. 2603. Exhibit E: April 12, 1943 letter by R-H.C. to Gov. Warren regarding Senate Bill No. 928. Exhibit F: Excerpt of July 3, 1951 Report on Assembly Bill No. 1785. Dated: April 15, 2013 ARENT FOX LLP Stephen G. Larson Mary Carter Andrues Attorneys for Defendant and Respondent JEFFREY BURUM MEMORANDUM IN SUPPORT OF MOTION FOR JUDICIAL NOTICE The California Evidence Code allows California courts to take judicial notice of appropriate matters. (See Evid. Code § 450 et seq.) This authority extends to appellate courts as well as to trial courts. (See Evid. Code § 459, subd. (a).) Section 45 1(a) lists those matters ofwhich a court is required to take judicial notice, which includes the lawsofthis State. Section 452(a) permits courts to take judicial notice of any aspect of the law ofthe State that is not covered by section 451. Section 453, in turn, requires courts to take judicial notice of any matter included in Section 452 at the request of a party to an action, if that party gives the opposing party sufficient opportunity to respond. The Judgmentof Validation from the proceedings in the San Bernardino County Superior Court action filed by the San Bernardino County Flood Control District provides necessary context for understanding the actions taken by the prosecutors and related state and county agencies in this matter. Judgments entered in related state court proceedings have long been afforded judicial notice as an aid to understanding the context of the facts in a case. (See Evid. Code § 452, subd. (d) [noting “records of any court of this state” may be judicially noticed]; People v. Lee (2011) 51 Cal.4th 620; Rosen v. St. Joseph Hosp. ofOrange County (2011) 193 Cal.App.4th 453; City ofHawthorne ex rel. Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668; Day v. Sharp (1975) 50 Cal.App.3d 904.) Therefore, this Court should take judicial notice of Exhibit A, attached hereto. The proper construction of several statutes formsa critical role in resolving the issues raised in Mr. Burum’s AnswerBrief. Specifically, the legislative history of California Government Code Sections 1090 and 9054 -2- are relevant to the arguments raised in the Answer Brief. A statute’s legislative history has long been afforded judicial notice as an aid to construe the statute’s meaning. (See St. John’s Well Child and Family Ctr. v. Schwarzenegger (2010) 50 Cal.4th 960; Martin v. Szeto (2004) 32 Cal.4th 445; Hughes Elec. Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251.) As the Law Revision Commission Commentto Section 450 makesclear, the legislative history materials for which Petitioner requests judicial notice are among those matters subject to mandatory judicial notice: Under the Evidence Code, as under existing law, courts may consider whatever materials are appropriate in construing statutes, determining constitutional issues, and formulating rules of law. That a court may consider legislative history, discussions of learned writers in treatises and law reviews, materials that contain controversial economic and social facts or findings or that indicate contemporary opinion, and similar materials is inherent in the requirement that it take judicial notice of the law. In many cases, the meaning and validity of statutes, the precise nature of a common law rule, or the correct interpretation of a constitutional provision can be determined only with the help of such extrinsic aids. Cf People v. Sterling Refining Co. (1927) 86 Cal. 558, 564 (statutory authority to notice ‘public and private acts’ of legislature held to authorize examination oflegislative history of certain acts). Therefore, this Court should take judicial notice of Exhibits B, E, and F, attached hereto. Likewise, the “California jury instructions approved by the Judicial Council are the official instructions for use in the State of California.” (Cal. Rules of Court, Rule 2.1050, subd. (a).) The purpose ofthose jury instructions is to “improve the quality ofjury decision making by providing standardized instructions that accurately state the law in a waythatis understandable to the average juror.” (/d.) California courts are “strongly encouraged”to use the Judicial Council’s jury instructions, as the Judicial -3- Council “makes every effort to ensure that they accurately state existing law.” (d. at subds. (b) & (e).) It is appropriate for this Court to take judicial notice ofthe rules of court and the wording of the CALCRIM jury instructions. (See People v. Torres (2011) 198 Cal.App.4th 1131, 1142, fn.6 [taking judicial notice of rules of court and “the wording of the CALCRIMpublication, as it is not reasonably subject to dispute”]; People v. Cahan (1956) 141 Cal.App.2d 891 [taking judicial notice of records of the judicial council].) As such, this Court should take judicial notice of Exhibits D and E, attached hereto. In sum, Mr. Burum respectfully requests that this Court take judicial notice of the materials attached hereto as Exhibits A through F. Dated: April 15, 2013 ARENT FOX LLP By: fi00—— Stéphen G. Larson Mary Carter Andrues Attorneys for Defendant and Respondent JEFFREY BURUM 10 Hy 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREG HARRINGTON (STATE BAR NO. 93839) NORMANC. HILE (STATE BAR NO, 57299) DONALDS. FIELD (STATE BAR NO,168832) MICHAEL C. WEED (STATE BARNO. 199675) ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814-4497 Telephone: 916-447-9200 Facsimile: 916-329-4900 Email: mweed@orrick.com MICHELLE D. BLAKEMORE (STATE BAR NO,110474) Deputy County Counsel MITCHELL L, NORTON (STATE BAR NO. 167018) Deputy County Counsel RUTH E. STRINGER (STATE BAR NO. 103563) County Counsel 385 North Arrowhead Avenue, 4th Floor San Bernardino, CA 92415-0140 Telephone: (909) 387-5445 Fax: (909) 387-5462 Attorneys for Plaintiff, San Bernardino County Flood Control District eve. LLE & TPaCOMny te cay eeeaT x “arnt cert t Sel PEROCnDST Fad 29 2007 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO SAN BERNARDINO COUNTY FLOOD Case No. SCVSS 146272 CONTROL DISTRICT, Plaintiff, Dj JUDGMENT OF ¥, VALIDATION ALL PERSONS INTERESTED IN THE MATTER OF THE VALIDITY OF PROCEEDINGS RELATING TO THE AUTHORIZATIONAND Date: March 29, 2007 ISSUANCE OF SAN BERNARDINO COUNTY Time: 8:30 a.m. FLOOD CONTROL DISTRICT JUDGMENT Dept.: 59 OBLIGATION BONDSTO BE ISSUED WITH Judge: Hon, W. Robert Fawke RESPECT TO CERTAIN OBLIGATIONS OF THE DISTRICT ARISING UNDER A JUDGMENT, AND THE EXECUTION AND DELIVERY OF AN INDENTURE, A SWAP AGREEMENT, AND ANY OTHER RELATED CONTRACTS OR EXEMPTFrom Filing Fees Per Govt. AGREEMENTS AUTHORIZED BY THE BOARD Code § 6103. OF SUPERVISORS OF THE SAN BERNARDINO COUNTY FLOOD CONTROLDISTRICT, AND CERTAIN OTHER MATTERS PERTAINING THERETO, Defendants OHS West 260193444 3 [PROPOSED] JUDGMENT OF VALIDATION PLTF0471169 oO o ~ ~ D N No ] 10 Mi 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Application for Judgmentof Validation and supporting papersfiled by plaintiff San Bemardino County Flood Control District (the “District”) came properly before the Court for review and determination. The Court having reviewed the application, the supporting papers, the other papers and pleadingsonfile in this action, and good cause appearing, hereby ORDERS, ADJUDGES AND DECREESasfollows: 1. The District has complied with this Court’s order providingfor publication and service of the summons(the “Order for Publication”) in accordance with the applicable provisions of California Code of Civil Procedure Sections 860 ef seg. Jurisdiction over all persons interested in the subject matter of this action was established by the publication of the summons in THE SAN BERNARDINO COUNTY SUN once each week for three successive weeks pursuant to California Government Code Section 6063, by posting the summons in multiple public locations within the District, and by mailing a copy ofthe summons and complaint to those persons who contacted the District’s counsel and expressed their interest in this matter. The only interested party to timely appear in this action appeared in support of validation, 2. The notice procedures in accordance with California Civil Procedure Code Section 860 ef seq., and the notice provided by the Districtin this action as described above, provide underall applicable laws adequate notice to all personsinterested in the subject matterofthis action, and pursuant to such notice, this Court has jurisdiction over all persons and the subject matter of this action. 3. This action is properly brought under California Civil Procedure Code Section 860 et seg. and Government Code Sections 53510 ef seq. and 53589.5, andis entitled to expedited treatment under Civil Procedure Code Section 867. 4, All proceedings by andfor the District in connection with the Resolution,the Bonds,the Indenture, the Swap Agreement, and any other related contracts or agreements authorized or contemplated by the District, and the District’s obligation under the Settlement Agreement and the Judgment,all as defined in the Complaint, were, are and will be valid, legal and binding obligations of the District, and were, are ard will be in conformity with the applicable provisionsofall laws and enactments at any time in force or controlling upon such proceedings, whether imposed by law, constitution, statute or ordinance, and whether federal, state, or municipal. OHS West 260193444 3 1 [PROPOSED] JUDGMENT OF VALIDATION PLTFO0471170 ff . ~ ~ N N A 10 1] 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5, All conditions, things and acts required by law to exist, happen or be performed precedentto the adoption of the Resolution, and the terms and conditions thereof, including the authorization for the issuance andsale of the Bonds, and the execution and delivery of the Indenture,the Swap Agreement, and any other contracts and agreements in connection therewith, have existed, happened and been performedin the time, form and mannerrequired by law. 6. The Settlement Agreementis a contract that is subject to validation under Califomia Code of Civil Procedure Section 860 et seg, The Settlement Agreement and the terms thereof were properly considered and approved at a regularly-scheduled noticed meeting of the Board of Supervisors of the District, and the Settlement Agreement was duly executed and delivered by the District and constitutes a valid and binding obligation of the District. 7. The District has the authority under California law to G) issue the Bonds; (ii) apply the proceeds of the Bondsto the refundingofthe District’s obligation under the Settlement Agreement and the Judgment, and to fund the reserve fund, pay capitalized interest, and pay the associated costs of issuing the Bonds,all as identified and approved in the Resolution;(iii) execute and deliver the Indenture, the Swap Agreement, and any other contract or agreements in connection with the issuance ofthe Bonds; and(iv) use any legally available District revenues, includingall ad valorem taxes levied and allocated to the District or any zone ofthe District, to pay the principal of and interest on the Bonds and to replenish or fund the reserve fund, as authorized in the Resolution, 8. The District’s obligation to pay Colonies Partners L.P. under the Settlement Agreementand the Judgmentconstitutes an obligation imposed By law, and that the Judgment, and the District's obligation under the Judgment, constitute evidence of indebtednessthat the District is authorized to refund by issuing the Bonds pursuant to California Goverament Code Section 53570 et seq. and Section 53580 et seq. 9. The Settlement Agreement, the Judgment, the Bonds, the Indenture, the Swap Agreement, and any other contracts or agreements entered into by the District in connection therewith, constitute or will upon execution and delivery constitute valid, legal and binding obligations ofthe District enforceable pursuantto their respective terms and under the applicable provisionsofall Jaws and fff OHS WEss 260193444 3 2 4 {PROPOSED] JUDOMENT OF VALIDATION PLTF0471171 - W w W w oO o S S Y N O O O M 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 enactments at any timein force or controlling, whether imposed by law,constitution, statute, or ordinance, and whether federal, state, or municipal. 10. This judgment binds and permanently enjoins and restrains all personsor entities, public or private, from the institution of any action or proceeding or maintaining any action or proceeding challenging, inter alia, the validity of the Settlement Agreement, the Judgment, the Bonds, the Indenture, the Swap Agreement, and any other contracts or agreements entered into by the District in connection with this transaction, or any matters herein adjudicated or which could have been adjudicated in this action. ee aes iy):At. Hon, W. RotertFawke Judge ofthe Superior Court OHS Wes? 260193444 3 3 [PROPOSED] JUDGMENTOF VALIDATION PLTF0471172 Westlaw, CA LEGIS 1146 (1992) Page | 1992 Cal. Legis. Serv. Ch. 1146 (A.B. 3326) (WEST) 1992 Cal. Legis. Serv. Ch. 1146 (A.B. 3326) (WEST) CALIFORNIA 1992 LEGISLATIVE SERVICE 1992 Portion of 1991-92 Regular Session COPR.(C) WEST 1992 No Claim to Orig. Govt. Works Additions are indicated by <<+ Text +>>; deletions by <<- Text ->>. Changes in tables are made butnot highlighted. CHAPTER1146 A.B. No. 3326 CRIMES—-RECEIVING STOLEN PROPERTY—-PRINCIPAL OF THEFT AN ACTto amendSection 496 of the Penal Code, relating to crime. [Approved by Governor September 29, 1992.] [Filed with Secretary of State September 30, 1992.] LEGISLATIVE COUNSEL'S DIGEST AB 3326, Boland. Crimes: receiving stolen property. Underexisting law, every person who buysor receives any property that has been stolen or obtained in any man- ner constituting theft or extortion, knowing the property to be stolen or obtained in that manner, or who con- ceals, sells, withholds, or aids in concealing,selling, or withholding the property from the owner with th e re- quisite knowledge is guilty of a misdemeanororfelony, punishable as specified. This bill would provide that a principal in the actual theft of the property may be convicted under these provi- sions, except as specified. By increasing the scope of an existing crime, the bill would constitute a state- mandated local program. The bill would also contain a declaration oflegislative intent to provide for the prosecution of principals in the actual theft of property who continue to possess that property after the statute of limitations has run on the theft of the property. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated bythe state. Statutory provisionsestablish procedures for making that reimbursement. This bill would provide that no reimbursementis required by this act for a specified reason. The people of the State of California do enact as follows: SECTION 1. Section 496 of the Penal Code is amendedto read: © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. CA LEGIS 1146 (1992) Page 2 1992 Cal. Legis. Serv. Ch. 1146 (A.B. 3326) (WEST) << CA PENAL§ 496 >> 496. <<+(a)+>> Every person who buys orreceives any property <<+ thatt>> has been stolen or <<+that+>> has been obtained in any mannerconstituting theft or extortion, knowing the property to be so stolen or ob- tained, or who conceals, sells, withholds<<+,+>> oraids in concealing, selling, or withholding any <<-* * *->> property from the owner, knowing the property to be so stolen or obtained, is punishable by imprisonmentin a state prison, or in a county jail for not more than one year <<-* * *->><> the district attorney or the grand jury determines that <<+thist+>> action would be in the interests of justice, the district attorney or the grand jury, as the case maybe, may,if the value of the property does not exceed four hundred dollars ($400), specify in the accusatory pleadingthat the offense shall be a misdemeanor, punishable only by imprisonmentin a county jail not exceeding one year. <<+A principalin the actualtheft of the property may be convicted pursuantto this section. However, no person may be convicted both pursuantto this section and ofthe theft of the same property.+>> <<+(b)+>> Every swap meet vendor, as defined in Section 21661of the Business and Professions Code<<+,+>> and every person whoseprincipal business is dealing in<<+,+>> or collecting<<+,+>> used or secondhand mer- chandise or personal property, and every agent, employee<<+,+>> or representative of <<+that+>> person, who buys or receives any property <<+that+>> has been stolen or obtained in any manner constituting theft or extor- tion, under <<-* * *->> circumstances <<+that+>> should cause <<+the+>> person, agent, employee<<+,+>> or representative to make reasonable inquiry to ascertain that the person from whom <<+the+>> property was bought or received had the legal right to sell or deliver it, without making <<+at>> reasonable inquiry, shall be presumed to have bought or received <<+the+>> property knowing it to have been so stolen or obtained. This presumption may, however, be rebutted by proof. <<+(c)+>> Whenin a prosecution underthis section it shall appear from the evidence that the defendant was a swap meet vendor or that the defendant's principal business was as set forth in <<-* * *->> <<+subdivision (b)+>>, that the defendant bought, received, or otherwise obtained, or concealed, withheld<<+,+>> or aided in concealing or withholding<<+,+>> from the owner, any property <<+that+>> had been stolen or obtained in any manner constituting theft or extortion, and that the defendant bought, received, obtained, concealed<<+,+>> or withheld <<+thatt+>> property under <<-* * *->> circumstances <<+that+>> should have caused him or her to make reasonable inquiry to ascertain that the person from whom he <<+ or she+>> bought, received, or obtained <<+the+>> property had the legal right to sell or deliver it to him orher, then the burden shall be upon the de- fendant to show that before <<-* * *->> buying, receiving, or otherwise obtaining <<+the+>> property, he or she made a reasonable inquiry to ascertain that the person <<-* * *->> selling or delivering the same to him or her hadthe legal right to <<-* * *->> sell or deliverit. <<+(d)+>> Any person whohas been injured by a violation of <<-* * *->> <<+subdivision (a)+>> may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit<<+,+>> and reasonable attorney's fees. <<+(e)+>> Notwithstanding Section 664, any attempt to commitanyact prohibited by this section, except an of- fense specified in the accusatory pleading as a misdemeanor, is punishable by imprisonmentin a state prison, or in a county jail for not more than one year. << Note: CA PENAL§ 496 >> SEC.2. It is the intent of the Legislature to provide for the prosecution of principals in the actual theft of the property who continue to possess that property after the statute of limitations has run on the theft of the prop- erty. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. CA LEGIS 1146 (1992) Page 3 1992 Cal. Legis. Serv. Ch. 1146 (A.B. 3326) (WEST) SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Con- stitution because the only costs which may beincurred bya local agency or schooldistrict will be incurred be- cause this act creates a new crimeorinfraction, changes the definition of a crimeorinfraction, changes the pen- alty for a crime orinfraction, or eliminates a crime or infraction. Notwithstanding Section 17580 of the Govern- ment Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution. CA LEGIS 1146 (1992) CA LEGIS 1146(1992) END OF DOCUMENT © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. A. BRIBERY OF OFFICIAL 2600. Giving or Offering a Bribe to an Executive Officer (Pen. Code, § 67) The defendantis charged [in Count ] with (giving/ [or] offering) a bribe to an executive officer [in violation of Penal Code section 67]. To prove that the defendantis guilty of this crime, the People must provethat: 1. The defendant (gave/ [or] offered) a bribe to an executive officer in this state [or someone acting on the officer’s behalf]; AND 2. The defendant acted with the corrupt intent to unlawfully influence that officer’s official (act[,]/ decision[,]/ vote[,]/ opinion[,]/ [or] ____-_——-— ). As used here, bribe means something of present or future value or advantage, or a promise to give such a thing, that is given or offered with the corrupt intent to unlawfully influence the public or official action, vote, decision, [or] opinion, [or _______ ] of the person to whom thebribe is given. A person acts with corrupt intent when heor she acts to wrongfully gain a financial or other advantage for himself, herself, or someoneelse. Theofficial (act[,]/ decision[,]/ vote[,]/ opinion[,]/ [or] proceeding) the defendant sought to influence must have related to an existing subject that could have been brought before the public officer in his or her official capacity. It does not have to relate to a duty specifically given by statute to that officer. An executive officer is a governmentofficial who may use his or her own discretion in performing his or her job duties. [(A/An) is an executive officer.] [The executive officer does not need to have (accepted the bribe[,]/ [or] performed the requested act[,]/ [or] deliberately failed to perform a duty).] [Offering a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show an intent to bribe. [The thing offered does not need to actually be given, exist at the 467 (Pub, 1284) This version provided by LexisNexis® Matthew Bender®,Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. CALCRIM No. 2600 CRIMES AGAINST GOVERNMENT time it is offered, or have a specific value.]] New January 2006 BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. The statute applies to giving or offering a bribe to “any executive officer. . . with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer. . ..” It is unclear what “other proceeding”refers to and there are no cases defining the phrase. If the evidence presents an issue about attempting to influence an officer in any “other proceeding,” the court may insert a description of the proceeding where indicated. Give the bracketed sentence that begins with “The executive officer does not” if the evidence showsthat the executive officer did not accept the bribe or follow through on the action sought. Give the bracketed definition of “offering a bribe” if the prosecution is pursuing this theory. Give the bracketed sentence that begins, ““The thing offered does not need to actually,” on request. AUTHORITY * Elements. Pen. Code, § 67. * Bribe Defined. Pen. Code, § 7(6). * Corruptly Defined. Pen. Code, § 7(3). « Executive Officer Defined. People v. Strohl (1976) 57 Cal.App.3d 347, 361 (129 Cal.Rptr. 224]. * Corrupt Intent Is an Element of Bribery. People v. Gliksman (1978) 78 Cal.App.3d 343, 351 [144 Cal.Rptr. 451]; People v. Zerillo (1950) 36 Cal.2d 222, 232 [223 P.2d 223]. * Subject Matter of Bribe. People v. Megladdery (1940) 40 Cal.App.2d 748, 782 [106 P.2d 84], disapproved on other grounds in People v. Posey (2004) 32 Cal.4th 193, 214-215 [8 Cal.Rptr.3d 551, 82 P.3d 755] and People v. Simon (2001) 25 Cal.4th 1082, 1108 [108 Cal.Rptr.2d 385, 25 P.3d 598]; People v. Diedrich (1982) 31 Cal.3d 263, 276 [182 Cal.Rptr. 354, 643 P.2d 971]. * Offering a Bribe. People v. Britton (1962) 205 Cal.App.2d 561, 564 [22 Cal.Rptr. 921]. * Bribery and Extortion Distinguished. People v. Powell (1920) 50 Cal.App. 436, 441 [195 P. 456]. * NoBilateral Agreement Necessary. People v. Gliksman (1978) 78 Cal.App.3d 343, 350-351 [144 Cal.Rptr. 451]. 468 (Pub. 1284) This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. CRIMES AGAINST GOVERNMENT CALCRIM No. 2600 Secondary Sources 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 32-55. 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender). RELATED ISSUES Entrapment The crime is complete once an offer is made. Accordingly, subsequentefforts to procure corroborative evidence do not constitute entrapment. (People v. Finkelstin (1950) 98 Cal.App.2d 545, 553 [220 P.2d 934]; People v. Bunkers (1905) 2 Cal.App. 197, 209 [84 P. 364].) Accomplice Liability and Conspiracy The giver andthe recipient of a bribe are not accomplices of one another, nor are they coconspirators, because they are guilty of distinct crimesthat require different mental states. (People v. Wolden (1967) 255 Cal.App.2d 798, 804 [63 Cal.Rptr. 467].) Extortion Distinguished Extortion is bribery with the additional element of coercion. Accordingly, the defendant cannot be guilty of receiving a bribe and extortion in the same transaction. (People v. Powell (1920) 50 Cal.App. 436, 441 [195 P. 456].) 469 (Pub. 1284) This version provided by LexisNexis® Matthew Bender®,Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. 2603. Requesting or Taking a Bribe (Pen. Code, §§ 68, 86, 93) The defendant is charged [in Count ] with (requesting[,]/ taking[,]/ [or] agreeing to take) a bribe [in violation of ]. To prove that the defendantis guilty of this crime, the People must provethat: 1. The defendant was (a/an) (executive officer/ministerial officer/ employee/appointee/legislative officer/judicial officer) of the (State of California/City ofSs /County ofSCinlet. nme Of county>/ _______ ); 2. The defendant (requested[,]/ took[,]/ [or] agreed to take) a bribe; 3. Whenthe defendant (requested[,]/ took[,]/ [or] agreed to take) the bribe, (he/she) represented that the bribe would unlawfully influence (his/her) official (act[,]/ decision[,]/ vote[,]/ [or] opinion). The representation may have been express or implied; AND 4. The defendant acted with the corrupt intent that (his/her) public or official duty would be unlawfully influenced. As used here, bribe means something of present or future value or advantage, or a promise to give such a thing, that is requested or taken with the corrupt intent that the public orofficial action, vote, decision, or opinion of the person to who is requesting, taking, or agreeing to take the bribe, will be unlawfully influenced. A person acts with corrupt intent when he or she acts to wrongfully gain a financial or other advantage for himself, herself, or someoneelse. [An executive officer is a governmentofficial who may use his or her own discretion in performing his or her job duties. [A is an executive officer.]} [A ministerial officer is an officer who has a clear and mandatory duty involving the performanceof specific tasks without the exercise of discretion.] [A legislative officer is a memberof the (Assembly/Senate/ ) of this state.] [A judicial officer includes a (juror[,]/ [or] judge [,]/ [or] referee[,]/ [or] 474 (Pub. 1284) This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. CRIMES AGAINST GOVERNMENT CALCRIM No. 2603 commissioner[,]/ [or] arbitrator [,]/ [or] umpire[,]/ [or] [other] person authorized by law to hear or determine any question or controversy).| [Requesting or agreeing to take a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show that the person is seeking a bribe from someoneelse. [The People do not need to prove that the other person actually consented to give a bribe.]] [The People do not need to prove that the defendant madeanyeffort to follow through on the purpose for which the bribe was sought.] New January 2006; Revised June 2007 BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. Give the bracketed definition of “requesting or agreeing to take a bribe”if the prosecution is pursuing this theory. Give the bracketed sentence that begins with “The People do not need to prove that the defendant madeanyeffort to follow through”if there is no evidencethat the defendant took any action based on the alleged bribe. AUTHORITY * Elements. Pen. Code, §§ 68, 86, 93. *« Bribe Defined. Pen. Code, § 7, subd. 6. ° Corruptly Defined. Pen. Code, § 7, subd.3. * Executive Officer Defined. People v. Strohl (1976) 57 Cal.App.3d 347, 361 {129 Cal.Rptr. 224]. ¢ Ministerial Officer Defined. Gov. Code, § 820.25(b); People v. Strohl (1976) 57 Cal.App.3d 347, 361 [129 Cal.Rptr. 224]. * Legislative Member. Pen. Code, § 86. ¢ Judicial Officer. Pen. Code, § 93. * Corrupt Intent Is an Element of Bribery. People v. Gliksman (1978) 78 Cal.App.3d 343, 346-350 [144 Cal.Rptr. 451]; People v. Zerillo (1950) 36 Cal.2d 222, 232 [223 P.2d 223]. * Meaning of Understanding or Agreement. People v. Pic’l (1982) 31 Cal.3d 731, 738-740 [183 Cal.Rptr. 685, 646 P.2d 847]; People v. Diedrich (1982) 31 Cal.3d 263, 273-274 [182 Cal.Rptr. 354, 643 P.2d 971]; People v. Gliksman (1978) 78 Cal.App.3d 343, 346-350 [144 Cal.Rptr. 451]. ¢ Bribery and Extortion Distinguished. People v. Powell (1920) 50 Cal.App. 475 (Pub. 1284) This version provided by LexisNexis® Matthew Bender®,Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. CALCRIM No. 2603 CRIMES AGAINST GOVERNMENT 436, 441 [195 P. 456]. Secondary Sources 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 32-55. 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141, Conspiracy, Solicitation, and Attempt, § 141.10 (Matthew Bender). RELATED ISSUES See the Related Issues section of CALCRIM No. 2600, Giving or Offering a Bribe to an Executive Officer. 2604-2609. Reserved for Future Use 476 (Pub. 1284) This version provided by LexisNexis® Matthew Bender®, Official Publisher, 800-533-1637, www.lexisnexis.com/bookstore, for public and internal court use. e k . eseye. : ¥ Dad Foun tithe» eae iBoicaetasywgsain Be“ah % . me ea e :me oe % ‘2 mdah :(b) Arronv¥¥ Genens¢ No Yegel cojéction. *™ -r wo4 ‘sy « Se Jae, oe :Pa at, oa af . mn ", . % . “£ 4 . 4 6. SPONSORSEDP California Code Conmisston. . ee #; we, seot. “a ¢ 7. OPPOSITION Noite. : SB a : i. . : : ae oS ~ 8 ! ee ‘ cE _ ‘ , ye + i.= 4 . 7Re . io ‘ Mee OE « 4 m 8. DEPARTMENTAL REPORTS , “ we oo Zz 2 ry ‘ w oe) : : fe . we So a ss Ss \ , e ee 9. COMMENTs ‘Tois bE11 (and Senate Bilis yt820) are° att ‘eeSeed om hs long-term codification progren of the California’ Gots GoliiidSekpvt. z ‘ : -No change in the substance of thé existing ‘Lew: ie. Baden, oe ; "a . I recommend approval of the bil, “Ayr f “3 - 5 Exhibit A, Page 6 MEMORANDUM GOVERNOR'S OFFICE To: GOVERNOR WARREN Prace Sacramento, Calif. From: R. H. C. Date April 12, 1943. 1. BILL NO. Senate Bill No. 958 2. SUBJECT MATTER Establishes a Government Code, incorporating a great many general laws and code sections relating to the organization end operation of State government and the general qualifications of public officers. Prepared by the Code Commission. 3. AUTHOR Fletcher and Burns ~~ - a 4. VOTE Unanimous in both houses. © co ” oO oO 5. LEGALITY 2 (2) Lecistarive CounseL Form, title and constitutionality approved. Ww O > & uw VY sv . : EE (6) Attorney General No legal oojection. a E Zz Lu 2 ke 6. SPONSORSHIP California Code Commission. - © uw _t 7. OPPOSITION None. =, ~~ 6 sant af s DEPARTMENTAL REPORTS COMMENTS This bill (and Senate Bills 912-920) are part of the long-term codification progr2: of the California Code Commission. No change in the sudstance or the existing law is made. I recommend approval or the dill. 20775 2-43 4M STATE PRINTING OFFICE PE- 10 RALPH NCKLEPB 8REGISLATIVE COUNSEL " CHARLES:W,JOHNSON © SofehigeDeruTy, 70 oa “os JowerH LiKNOWLES oo : KOKUNE ee pO SORRUTYIN CHARGR..” ROWANGLES OFFicn _ HARRIETTRe BUHLER | DeruTyin CHARGE. | 4 co OFFICE oS REPORTON ASSEMBLY BILL NO.1785. SUMMARY +. - reorgan Otc iT BROWN,ROSH “amends, adds- and repeals variousSecs.’ . Gov. C. _to conformprovisionstoinferiorcourt: .. izationprogram... OONT 8 ee Substitutes "judicial district" for= township", "judge of justice court" for"justice" FORE $ ——e ‘and "justice of the peace", "justice court" for "justice's court", and deletes references to city courts and judges and attaches thereof. . Makes other téchnical and conforming changes. Approved. TITLE 3 Approved. . CONS TITUTIONALITY: Approved. COMMENT : This bill is in conflict with Senate Bill No. 1708 insofar as they would both amend Sectio ns 1090 and 1091 of the Government Code. The latter bill wovld substantially in- corporate the present provisions of Section 109 1 into Section 1090 and enact a new Section 10 91 to create exceptions to the provisions prohi biting enumerated public officers to have any thing to do in a personal capacity with transactions with which they were concerned in their official c apacities. If the Governor signs both bills and Senate Bill No. 1708 is signed first the subseq uent amendment by this bill will substantially n ullify the changes provided in the above mention ed bill. If this bill is first signed it may not be effect ive as to Section 1090 only, insofar as offi cers of judicial districts, instead of townships are con- cerned, after the operative date of the municipal SELBERT-E.WONG \ LANDMUNNELL. =~ (8 00 ) 66 6- 19 17 . i f L E G I S L A T I V E I N T E N T S E R V I C E w s e d * "Report onAssemblyBillNo. 1785= WEP:TG °. gourt réorganization:program - probable ‘that: the courts:wow ~~ districts:‘when.‘At could: z ships by. reason.of.their ab dishne:n if enacted, as.‘applicabl yy Us/ W..E. Pringle Deputy... (8 00 ) 6 6 6 - 1 9 1 7 . . . Fi “ d f L E G I S L A T I V E I N T E N T S E R V I C E a n e ? People v. Biane, et al. California Supreme Court Case No. 8207250 PROOF OF SERVICE Tam a citizen of the United States. My business address is ARENT FOX LLP, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013. I am employed in the county of Los Angeles where this service occurs. I am over the age of 18 years, and not a party to the within cause. Onthe dateset forth below, according to ordinary businesspractice, I served BY U.S. MAIL the following document described as: JEFFREY BURUM’S MOTION FOR JUDICIAL NOTICE I am readily familiar with my employer’s businesspractice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the USS. Postal Service the same day as the day of collection in the ordinary course of business. Onthis date, I placed the documentin envelopes addressed to the personsstated on the attached service list and sealed and placed the envelopes for collection and mailing following ordinary business practices. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true andcorrect. Executed on April 15, 2013, at Los Angeles, California. Kimnlebhvlley, Kimbosty Bardales 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(@do}].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. Chad Firetag 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 Rajan R. Maline LAW OFFICE OF RAJAN MALINE 3750 University Ave., Suite 680 Riverside, CA 92501 (951) 779-0221 (951) 779-0229 fax rajmaline@aol.com Counsel for Defendant JAMES ERWIN Steven L. Harmon Law Offices of Harmon & Harmon 7095 Indiana Ave., Suite 200 Riverside, CA 92506 Counsel for Defendant JAMES ERWIN 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 of AppealFourth Appellate District, Division Two3389 Twelfth StreetRiverside, CA 92501
