ROBINSON v. PEOPLE

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Court of Appeal, Second District, Division 7, California.

Carl ROBINSON, Petitioner, v. SUPERIOR COURT of the State of California, for the County of Los Angeles, Respondent, The PEOPLE of the State of California, Real Party in Interest.

B025294.

Decided: May 15, 1987

Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurance M. Sarnoff, Charles Klum, Victor Salerno, Deputy Public Defenders, for petitioner. No appearance by respondent. Ira Reiner, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Brentford J. Ferreira, Deputy Dist. Attys., for real party in interest.

This is a petition for writ of mandate challenging the superior court's order overruling the demurrer by petitioner, Carl Robinson, to the criminal information charging him with one count of asking or receiving a bribe by a public official in violation of Penal Code section 68, and one count of soliciting or accepting a bribe in violation of Penal Code section 165.   At issue is whether prosecution under the “general” felony bribery statutes of Penal Code sections 68 and 165 is barred by the existence of a “special” Education Code section making the acceptance of a bribe by the member of the governing board of a community college district, with corrupt intent, a misdemeanor.  (Educ.Code, § 72530.)   For the reasons to follow, we conclude that because Education Code section 72530 does not proscribe the solicitation of a bribe, the demurrer was properly overruled.

FACTS AND PROCEDURAL BACKGROUND BELOW

The allegations of the amended information, which we must assume as true (Muro v. Superior Court (1986) 184 Cal.App.3d 1089, 1092, 229 Cal.Rptr. 383), establish that on or about and between March 14, 1985, and March 21, 1985, Robinson, a member of the Board of Trustees of the Compton Community College, asked, received, and agreed to receive a bribe from Rolland Boceta, for the purpose, agreement and understanding of influencing Robinson's vote, opinion, and action upon a pending matter that might be brought before Robinson in his official capacity as trustee.

The information first filed on September 12, 1985, charged Robinson with violating section 68 of the Penal Code.   Robinson, who was then appearing in propria persona, was arraigned on September 18, 1985, and pled not guilty.

The Public Defender was appointed on February 5, 1986.   On June 9, 1986, Robinson filed a motion to set aside the information (Pen.Code, § 995), challenging the sufficiency of the evidence to establish (1) that he is an “executive officer” as required under Penal Code section 68, and (2) that he requested a bribe upon an understanding or agreement that his vote be influenced thereby.   Robinson also raised the issue before us herein, namely that prosecution under Penal Code section 68 was barred because of the existence of a more specific statute, Education Code section 72530.

On July 18, 1986, the People filed an amended information adding count II, alleging a violation of Penal Code section 165.   Defendant was arraigned on the amended information and pled not guilty on September 12, 1986.

On November 10, 1986, Robinson filed the instant demurrer, incorporating the points and authorities filed in support of his section 995 motion, alleging that the special misdemeanor provision of Education Code section 72530 constituted a jurisdictional bar to prosecution in the superior court.

The court heard oral argument on Robinson's section 995 motion and demurrer on November 21, 1986, having overruled the People's objection that the demurrer was untimely.1  The court denied the section 995 motion and overruled the demurrer.   The section 995 motion not having been timely made for purposes of writ review (Pen.Code, § 1510), Robinson challenges herein only the propriety of the order overruling the demurrer.

DISCUSSION

Robinson was charged in count I under the language of Penal Code section 68,2 with asking, receiving, and agreeing to receive a bribe for the purpose of influencing his action and upon an agreement and understanding that his vote, opinion and action upon a matter then pending and which might be brought before him in his official capacity as a trustee should be influenced thereby.   He was also charged in count II under the language of Penal Code section 165,3 with receiving, offering, and agreeing to receive a bribe upon an understanding that his official vote, opinion, judgment and action would be influenced thereby and given in a particular manner, and upon a particular side of a question and matter upon which he might be required to act in his official capacity.

Education Code section 72530, which Robinson contends is a special statute that bars prosecution under Penal Code sections 68 and 165, provides in pertinent part, that “the acceptance by any member of the governing board [of any community college district] of any valuable thing, with corrupt intent, is a misdemeanor.”   The gravamen of Robinson's argument is that because the information alleges on its face that he (1) is a person falling within the special class of persons covered by Education Code section 72530 (a member of the board of trustees of a community college), and (2) committed the act prohibited by Education Code section 72530 (accepting a bribe), the prosecution is barred from trying him under the more general provisions of Penal Code sections 68 and 165.

Robinson asserts that the general rule of statutory construction that prosecution is barred under a general statute when a more specific one describes the conduct involved (In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593), compels the conclusion here that the special Education Code misdemeanor statute for accepting a bribe precludes his prosecution under Penal Code sections 68 and 165 for asking or receiving a bribe.  “ ‘It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.   Where the special statute is later it will be regarded as an exception to or qualification of the prior general one;  and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.’  [Citations.]”  (In re Williamson, supra, 43 Cal.2d at p. 654, 276 P.2d 593.)

However, the information charges Robinson with not only accepting the bribe, which is the conduct proscribed by both the Education Code and the Penal Code sections, but also with asking and agreeing to receive a bribe, which is conduct addressed only by the Penal Code sections.   It would appear that the language of Education Code section 72530, being unambiguous, would not preclude prosecution under Penal Code sections 68 and 165 for the separate offense of asking or agreeing to receive a bribe.4

The question before us is one of statutory construction.  “The fundamental rule of statutory construction is that the court must ascertain the intent of the legislature so as to effectuate the purpose of the law.”  (In re Marriage of Buckley (1982) 133 Cal.App.3d 927, 931, 184 Cal.Rptr. 290.)   The first step in determining legislative intent is to examine the words of the statute in question, for if “no ambiguity, uncertainty, or doubt exists about the meaning of a statute, there is no necessity for judicial interpretation or construction.”  (Smith v. Rhea (1977) 72 Cal.App.3d 361, 365, 140 Cal.Rptr. 116.)

We do not think that ambiguity, uncertainty, or doubt exists in the words of Education Code section 72530.   That section clearly does not apply to the separate offense of asking and agreeing to receive a bribe.

 Our position is buttressed by our Supreme Court's interpretation of a predecessor statute to Education Code section 72530.  (People v. Seeley (1902) 137 Cal. 13, 69 P. 693.)  Seeley supports our conclusion that the legislature, by enacting Education Code section 72530, did not intend to preclude the prosecution of a member of the governing board of a community college district for the separate and distinct offense under Penal Code sections 68 and 165 of asking or agreeing to receive a bribe.

In Seeley, a school trustee who was charged under Penal Code section 68 with asking and agreeing to receive a bribe, demurred to the information on the ground that Penal Code section 68 was repealed by implication by the passage of former Political Code section 1879.   Former Political Code section 1879 made the “acceptance by any member of a board of education or a board of school trustees of any valuable thing, with corrupt intent, a misdemeanor.” 5  The demurrer was sustained by the trial court, but the California Supreme Court reversed, holding that former Political Code section 1879 did not preclude a prosecution under Penal Code section 68 for the separate offense of soliciting a bribe:  “[Political Code section 1879] does not make an agreement to receive a bribe any offense.   It does make the acceptance of a bribe a misdemeanor, and therefore leaves the offense of agreeing to receive such a bribe a felony under the Penal Code.   We cannot see the reason why the legislature should make the agreement to receive a bribe a felony, and the actual receiving of it a misdemeanor, but it has clearly done so whether there was any reason for it or not.   It may be that in the opinion of the legislature the acceptance of a bribe is not accompanied with the same deliberation and premeditation as the agreement to accept;  but, however that may be, we are bound by the language used and cannot substitute our views as to what the law should be instead of what it is.”  (People v. Seeley, supra, 137 Cal. at p. 15, 69 P. 693.) 6

“It is an established principle of statutory construction to presume that the Legislature, when it enacts a statute, is aware of judicial interpretations of related statutes and enacts the new statute in the light thereof.   [Citations.]”  (Favalora v. County of Humboldt (1976) 55 Cal.App.3d 969, 973, 127 Cal.Rptr. 907.)   In light of Seeley, had the legislature intended to include the offense of soliciting and agreeing to accept a bribe within Education Code section 72530, it presumably would have done so.   This is not a case where the absence of a “savings clause” in Evidence Code section 72530 was caused by “legislative inattention” as in Finn v. Superior Court (1984) 156 Cal.App.3d 268, 272, 202 Cal.Rptr. 732.

 The rule of construction relied on by Robinson—“where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment” (In re Williamson, supra, 43 Cal.2d at p. 654, 276 P.2d 593)—is only a general, rather than an absolute rule.   While the fact that the specific statute covers much the same ground as a more general law is a powerful indication of legislative intent that the specific provision alone applies (People v. Jenkins (1980) 28 Cal.3d 494, 505, 170 Cal.Rptr. 1, 620 P.2d 587), the fundamental purpose of the general versus specific rule is to “ascertain and carry out legislative intent.”  (Ibid.)

 The language of Education Code section 72530 is clear and unambiguous.   It only applies to the acceptance of a valuable thing with corrupt intent;  it does not apply to the solicitation or asking of a valuable thing with corrupt intent.   The fatal flaw in Robinson's argument is that the information alleges that he asked, received, and agreed to receive a bribe.   The People need only to prove that he asked for or offered to receive the bribe in order to convict him under Penal Code section 68.  (See People v. Bunkers (1905) 2 Cal.App. 197, 209, 84 P. 364 (conviction under Penal Code section 86 for asking and receiving a bribe while a member of the California Senate).)

 Robinson contends that the only valid way to charge him with both soliciting and receiving a bribe is to use two separate counts.   He contends that by charging him in a single count with both acts, the People violated the Williamson rule.   We do not agree.   Any evidence that Robinson actually received or accepted the bribe would merely corroborate his guilt of the offense of asking and agreeing to receive a bribe:  “The appellant was guilty of a crime [Pen.Code, § 86] when he asked for or offered to receive the bribe, and his acceptance of it neither added to his guilt nor to the penalty already entailed.   Hence the plan to ‘entrap’ him amounted to nothing more than procuring corroborative evidence essential to conviction.”   (People v. Bunkers, supra, 2 Cal.App. at p. 209, 84 P. 364.)

Of course, this being a review of the overruling of a demurrer, our decision is limited to the facts as stated on the face of the information.   Our opinion does not address the applicability of the Williamson rule in the event the People are unable to prove that Robinson asked and agreed to receive a bribe.

DISPOSITION

The alternative writ is discharged and the petition is denied.

FOOTNOTES

1.   Although the papers filed in support of the demurrer indicated that Robinson would bring a motion to withdraw his not guilty plea for the limited purpose of bringing the demurrer, the motion was never made.   However, the record indicates that the trial court properly and explicitly exercised its discretion in considering the demurrer despite the fact that a plea had been entered (see People v. Superior Court (Jennings) (1986) 183 Cal.App.3d 636, 640–641, 228 Cal.Rptr. 357), thus implicitly allowing Robinson to withdraw his plea.

2.   Penal Code section 68 states, in pertinent part:  “Every executive ․ officer ․ who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison for two, three or four years;  and in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state.”

3.   Penal Code section 165 states in pertinent part:  “[E]very member of any [board of trustees of any county, city and county, city] who receives, or offers or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner or upon any particular side of the question or matter, upon which he may be required to act in his official capacity, is punishable by imprisonment in the state prison for two, three or four years, and upon conviction thereof shall, in addition to said punishment, forfeit his office, and forever be disenfranchised and disqualified from holding any public office or trust.”

4.   The offense of soliciting or asking a bribe “is complete when the solicitation is made, and it is immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation.”  (People v. Shapiro (1959) 170 Cal.App.2d 468, 478, 338 P.2d 963.)  “In other words, bribery may consist of either one of two entirely different and distinct acts, namely, the act of asking a bribe or the act of receiving a bribe.   To constitute the crime of asking a bribe ‘upon any agreement or understanding’ that the official conduct of the party asking shall be influenced thereby, it is not necessary that the party solicited shall consent to give the bribe, or that there shall be a meeting of the minds or mutual understanding or agreement between him and the party asking the bribe.   It is sufficient if the latter is ready and willing to enter into a corrupt agreement or understanding that his official conduct shall be influenced by the bribe.  [Citations.]”  (People v. Powell (1920) 50 Cal.App. 436, 442, 195 P. 456.)

5.   Education Code section 72530, enacted in 1976 (Stats.1976, ch. 1010, § 2), was derived from former Education Code section 1171 (currently codified at Education Code § 35230), which made it a misdemeanor for any member of the governing board of any school district to accept any valuable thing with corrupt intent.   Former Education Code section 1171 was originally enacted in 1893 as former section 1879 of the Political Code.

6.   We do not read Seeley to indicate that, as a blanket rule, the Williamson rule is inapplicable to the offense of agreeing to receive a bribe.   In our view, where a third person offers a bribe to an official covered by Education Code section 72530, and where the official agrees to receive the bribe, the Williamson rule would preclude a felony prosecution.   However, if the agreement to receive a bribe arose from a solicitation by an official covered by Education Code section 72530, it is our view that the Williamson rule would not preclude a felony prosecution.

THOMPSON, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.