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People v. Biane

Supreme Court of California

December 23, 2013

The PEOPLE, Plaintiff and Appellant,
v.
Paul Antoine BIANE et al., Defendants and Respondents. Mark Kirk, Petitioner,
v.
The Superior Court of San Bernardino County, Respondent; The People, Real Party in Interest. James Erwin, Petitioner,
v.
The Superior Court of San Bernardino County, Respondent; The People, Real Party in Interest. Jeffrey Burum, Petitioner,
v.
The Superior Court of San Bernardino County, Respondent; The People, Real Party in Interest.

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[Copyrighted Material Omitted]

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[165 Cal.Rptr.3d 843] Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Paul D. Dutton, Steven T. Oetting and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Appellant and for Real Party in Interest.

Law Office of Grech & Firetag, Paul Grech, Jr., and Chad W. Firetag, Riverside, for Petitioner Mark Kirk.

The Law Offices of Rajan R. Maline, Rajan R. Maline; Law Office of Harmon & Harmon and Steven L. Harmon, Riverside, for Petitioner James Erwin.

Arent Fox, Stephen G. Larson, Mary Carter Andrues and Jonathan E. Phillips, Los Angeles, for Petitioner Jeffrey Burum.

David M. Goldstein, Redwood City, for Defendants and Respondents.

No appearance for Respondent Superior Court.

BAXTER, J.

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[315 P.3d 107] An indictment charged defendants Jeffrey Burum and James Erwin with aiding and abetting the receipt of bribes by members of the San Bernardino County Board of Supervisors and with conspiring with those supervisors and others to have them accept bribes in exchange for the supervisors' approval of a $102 million payment to settle litigation between Burum's company and the County. The People intended to prove that Burum (the payor of the bribes) and Erwin (acting as Burum's agent) used threats, intimidation, and coercion to encourage the supervisors to accept the illegal payments. The Court of Appeal sustained Burum's demurrer to four counts of bribery and the related target crimes charged as part of the conspiracy on the ground that the payor of a bribe, as a matter of law, cannot aid and abet the receipt of the same bribe or conspire to commit that offense. The Court of Appeal sustained Erwin's demurrer to two of the bribery charges and the related target crimes charged as part of the conspiracy on the ground that Erwin, as Burum's agent, " would stand in defendant Burum's shoes."

We conclude that the Court of Appeal erred. Although neither the offer nor payment of a bribe in itself can establish that the offeror aided and abetted the separate crime of receiving the same bribe, the status of being the

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offeror or payor of a [165 Cal.Rptr.3d 844] bribe does not disqualify that person, as a matter of law, from complicity in the offense of receiving the bribe. Whether the offeror is guilty of aiding and abetting the receipt of the bribe depends on whether there is evidence that, in addition to the offer or payment of the bribe, the offeror " ‘ with (1) knowledge of the unlawful purpose of the perpetrator; and (2) [315 P.3d 108] the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ " ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296, 128 Cal.Rptr.3d 417, 256 P.3d 543.) Similarly, being the offeror or payor of a bribe does not disqualify that person, as a matter of law, from culpability for participating in a conspiracy to accept that same bribe.

Because the Court of Appeal sustained the demurrer based on its incorrect understanding of the law, we reverse that part of the judgment of the Court of Appeal and remand for further proceedings.

BACKGROUND

On May 9, 2011, a grand jury issued a 29-count indictment against Paul Biane, a member of the San Bernardino County Board of Supervisors; Mark Kirk, chief of staff for a different member of the Board of Supervisors; defendant Jeffrey Burum, a general partner in Colonies Partners, L.P. (Colonies); and defendant James Erwin, who was an agent for Burum. The indictment alleged that these individuals conspired together with William Postmus, who was the Chairman of the Board of Supervisors and who has already pleaded guilty and agreed to aid the prosecution, to settle a lawsuit brought by Colonies against San Bernardino County (County) on terms favorable to Colonies in exchange for a contribution of $100,000 each to political action committees controlled by Biane, Kirk, Erwin, and Postmus. Among other charges, the indictment accused Burum and Erwin of conspiracy to accept bribes to influence the vote of a public official (Pen.Code, §§ 86, 165), to misappropriate public funds (Pen.Code, § 424), to commit a criminal conflict of interest (Gov.Code, § 1090), and to improperly influence a legislative action (Gov.Code, § 9054) (count 1; Pen.Code, § 182, subd. (a)(1)), and of aiding and abetting the acceptance of bribes by Postmus and Biane (counts 4, 5, 7, and 8; Pen.Code, §§ 86, 165).

According to the indictment, Colonies is the owner of a 434-acre parcel of land in Upland that was intended for residential and commercial development. The parcel includes a 67-acre flood control basin over which the

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County had asserted easement rights. Colonies spent $23.5 million on flood control improvements and requested that the County reimburse those costs. When the County declined, asserting that the 67-acre basin itself was sufficient for flood control without improvements, Colonies sued the County in March 2002, challenging the County's easements and claiming that it had been deprived of its ability to develop the flood control basin. In July 2005, the Court of Appeal ruled in favor of the County as to 30 acres of the easement established in 1933 but found issues of fact remained as to the applicability and extent of a 1939 easement.

The indictment alleges that Burum, on behalf of Colonies, then concocted a scheme to obtain a settlement of this litigation " through corrupt means" : a combination of threats, extortion, bribery, and inducements to secure votes for a favorable termination of the litigation from the five-member Board of Supervisors. Burum's agent, Erwin, conspired with Burum and conveyed threats and inducements from Burum to Postmus and Biane, who were members of the Board of Supervisors, [165 Cal.Rptr.3d 845] and to Kirk, who was chief of staff to Gary Ovitt, a member of the Board of Supervisors. Erwin agreed to accept money from Burum in exchange for influencing the votes of Postmus and Biane. Kirk agreed to accept money in exchange for influencing Ovitt's vote. Postmus and Biane joined the conspiracy by agreeing to accept the bribes.

The indictment recites that Postmus, after being provided cash, meals, and entertainment of various kinds by Burum during a trade mission to China, announced to the County's administrative officer on September 20, 2005, " We've got to settle this Colonies thing" ; that Burum offered money to Erwin to assist in obtaining votes for the settlement; that Burum offered money to Kirk if he could deliver Ovitt's vote for the settlement; that Burum offered money to Biane in exchange for a favorable settlement from the County; and that Burum campaigned against Measure P (a ballot measure to increase the salary of the members of the Board of Supervisors) as a means of exerting pressure on [315 P.3d 109] Biane. Erwin told Postmus's staff that Burum had hired private investigators to sift through the board chair's trash for incriminating information, and threatened to distribute mailers to voters claiming that Postmus was addicted to drugs, as a means of pressuring him to secure Biane's vote. As a means of pressuring Biane directly, Erwin created mailers related to the Measure P campaign asserting that Biane was in debt and unable to pay his bills.

In October or November of 2006, Burum and Postmus discussed the prospect of a settlement at the Doubletree Hotel in Ontario, using Erwin as an intermediary. During one meeting, Burum had a courier deliver " hit piece" mailers relating to Measure P in an effort to intimidate Postmus. Postmus and

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Biane eventually agreed to vote to approve a settlement favorable to Colonies in exchange for a bribe. Kirk agreed, in exchange for a bribe, to ...


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