P. v. Biane

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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
v.
PAUL ANTOINE BIANE et al.,
Defendants and Respondents.
E054422
(Super.Ct.No. FSB1102102)
OPINION
MARK KIRK,
Petitioner,
v.
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
E054735
JAMES ERWIN,
Petitioner,
v.
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;
E054737

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THE PEOPLE,
Real Party in Interest.
JEFFREY BURUM,
Petitioner,
v.
THE SUPERIOR COURT OF SAN
BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
E054738
APPEAL AND PETITIONS FOR WRIT OF MANDATE from 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 denied in 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 Paul Biane.
Law Office of Grech & Firetag, Paul Grech, Jr. and Chad W. Firetag for
Defendant, Respondent and Petitioner Mark Kirk.

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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,
Respondent and Petitioner Jeffrey Burum.
The People of the State of California appeal from the trial court‟s order sustaining,
in part, the defendants‟ demurrers to various counts of the grand jury indictment in this
action. (Pen. Code, § 1238, subd. (a).) The indictment alleges 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 crimes including aiding
and abetting William Postmus and defendant Paul Biane, both of whom are elected
members of 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. The alleged 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 the trial 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 opinion all issues related to the
demurrers.

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For reasons we explain below, we agree with the People‟s assertion in their appeal
that the trial court erred in sustaining defendants‟ demurrers to the counts that allege they
misappropriated public funds in violation of Penal Code section 424. We also agree with
the assertion of defendants Erwin and Burum in their writ petitions that the trial court
should have sustained 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‟s claim that the 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 Code section 86, respectively. We reject the claim defendant Kirk
alleges in his writ petition and will deny the writ. Therefore, we will affirm in part and
reverse in part, and issue a writ of mandate directing the trial court to sustain defendants‟
demurrers in the manner just indicated.
I.
PROCEDURAL BACKGROUND
A. The Indictment
On May 9, 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 that at all relevant times defendant Biane was an
elected member of the Board; defendant Kirk was chief of staff for Gary Ovitt, an elected
member of the Board; and defendant Erwin, among other things, was the agent of

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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 member of the 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 crime 3), improper
influence of 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 was to illegally obtain
$102,000,000 from the County.” As alleged in the indictment, the means for
accomplishing the conspiracy were that Colonies purchased certain real property in
Upland for the purpose of residential and commercial development; the property included
a 67-acre flood control basin; San Bernardino County asserted easement rights over the
flood control basin; in March 2002, Colonies sued the county in order to challenge its
easement claim; that litigation confirmed the county‟s easement rights, but in July 2005
only part of those rights were affirmed on appeal; some unknown time after Colonies
filed its lawsuit, defendant Burum “concocted a scheme to obtain a monetary settlement
. . . from the County”; between January 1, 2005 and November 29, 2006, defendant

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Burum allegedly corruptly influenced members of the Board through “threats, extortion,
inducements, and bribery in order to secure their vote in favor of a settlement”; and
defendant Erwin allegedly joined the conspiracy by conveying threats 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 Biane allegedly “voted [in favor of the settlement]
knowing that they had a financial interest in the outcome, a bribe from [defendant]
Burum.” The indictment also alleges, “After Colonies received substantial sums of
money from the settlement with the County, [defendant] Burum distributed from
Colonies the agreed upon bribes and payments to Postmus, [and defendants] Biane, Kirk,
and Erwin” by giving $100,000 to political action committees created and controlled by
them.

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The indictment alleges numerous overt acts defendants and the unnamed
coconspirators committed. We recount the details of those allegations below as pertinent
to our resolution of the issues raised on appeal.
In addition to the conspiracy charged in count 1, which includes the five identified
target crimes, the indictment also separately charged defendants with committing the
following additional crimes, some of which are the crimes alleged as target crimes in the
conspiracy count:
Defendant Biane—bribery in violation of Penal Code section 165 (count 2);
asking for and/or receiving a bribe in violation of Penal Code section 86 (count 6);
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 instrument in 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 Code section 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

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Penal Code section 424 (count 13); filing a false tax return in violation of Revenue and
Taxation Code section 19706 (count 16); perjury by declaration in violation of section
118 (count 21); and filing a false instrument in violation of Penal Code section 115,
subdivision (a) (count 22).
Defendant Erwin—bribery in violation of Penal Code section 165 (counts 4 & 5);
asking for and/or receiving a bribe in violation of Penal Code section 86 (counts 7 & 8);
conflict of interest in violation of Government Code section 1090 (count 11);
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); and filing 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/or receiving a 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 Code section 424 (count 13).

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B. The Demurrers
Defendants each demurred to the indictment on the grounds that the facts alleged
did not state public offenses and, even if true, that the alleged facts would constitute a
legal justification or excuse or other legal bar to prosecution. (Pen. Code, § 1004.)1 In
particular, all defendants demurred to the conspiracy charge alleged in count 1.2 In
addition, each defendant demurred to some or all 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, which alleged 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 Code section 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
1 Penal Code section 1004 states, in pertinent part, that, “The defendant may
demur to the accusatory pleading at any time prior to 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.

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addition to demurring to count 1, demurred to count 9 (improper lobbying in violation of
Government Code section 9054) and count 13 (misappropriation of public funds).
C. The Trial Court’s Ruling
The trial court sustained defendants‟ demurrers in part and overruled them in part.
We will recount the details of the trial court‟s ruling, below, as pertinent to our discussion
of the issues raised by the parties.
II.
DISCUSSION
A. Standard of Review
1. The People’s Appeal
“„[A] demurrer raises an issue of law as to the sufficiency of the accusatory
pleading, and it 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
of Santa Ana (1995) 9 Cal.4th 1069, 1090 [“A demurrer to a criminal complaint lies only
to challenge the sufficiency of the pleading and raises only issues of law.”].) On appeal
“We review an order sustaining a demurrer without leave to amend de novo, exercising
our independent judgment as to whether, as a matter of law, the complaint . . . states a
cause of action on any available legal theory. [Citation.] In doing so we assume the truth
of all material factual allegations, and we are required to accept them as such, together
with those matters subject to judicial notice. [Citation.]” (Honig v. San Francisco
Planning Dept. (2005) 127 Cal.App.4th 520, 524, fn. omitted.)

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2. Defendants’ Writ Petitions
“The Code of Civil Procedure provides that mandate „may be issued . . . to compel
the performance of 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 cannot be issued to control a court‟s discretion, in
unusual circumstances the writ will lie where, under the 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 indictment failed to a state public
offense, then defendants would lack an adequate remedy at law without first incurring the
time and expense of a trial.
B. Judicial Notice Requests
Defendant Burum, in connection with his petition for writ of mandate, requests
this court take judicial notice of the judgment of validation in San Bernardino Superior
Court case No. SCVSS146272, dated March 29, 2007, attached as Exhibit A to his
judicial notice request. The judgment of validation is not relevant to any issue defendant
Burum raises in his writ petition, and he only mentions the document in 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

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exhibits to their judicial notice requests, that purportedly pertain to the legislative
histories of Government Code sections 1090 and 9054. The appeal and writ petitions
have been consolidated, as previously noted, and as a result the record in the appeal is
properly before us. The documents purportedly related to the legislative histories of the
noted Government Code sections are 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 defendant parties. 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 contend the attorney must explain why he has superior knowledge,
and that failure to do so renders the verification inadequate.
The People do not cite authority for that contention, and therefore we are not
persuaded. Code of Civil Procedure section 446 offers three reasons for the attorney
rather than the party to verify a pleading—the party is absent from the county where the
attorney has his or her office, “from some cause” the party is unable to verify the
pleading, and the facts are within the knowledge of his or her attorney. (Code Civ. Proc.,

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§ 446.) Defendant Erwin‟s attorney stated that he has superior knowledge of the 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 reasons for 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. For this reason,
we view the verifications as adequate compliance with the requirement that writ petitions
be verified. (See Code Civ. Proc., § 1086; Cal. Rules of Court, rule 8.486(a)(4).)
D. Analysis
1. Bribery in Violation of Penal 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)
As set out above, the indictment alleges in count 1 that defendants conspired to
commit five target crimes. Alleged target crime 1 is bribery in violation of Penal Code
section 165.3 The indictment alleges in count 2 that defendant Biane violated section
165, in count 4 that defendants Burum and Erwin aided and abetted Postmus in violating
3 All further statutory references will be to the Penal Code unless otherwise
indicated.

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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 who asks for and/or receives a bribe. Count 6
of the indictment alleges that defendant Biane violated 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 count 8 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, asserted in his demurrer
he was the person who offered the bribes, and as a matter of law he could not aid and abet
Postmus and defendant Biane in the crimes of receiving the bribe, nor could he conspire
with any of the other defendants to commit that crime. Therefore, defendants Burum,
Biane and Erwin all argued that the facts alleged in the indictment could not establish
conspiracy based on target crimes 1 (bribery) and 2 (asking for and/or receiving a bribe)
nor could they establish counts 2, 4, 5, 6, 7 and 8, which allege bribery in violation of
section 165 and asking for and/or receiving a bribe in violation of section 86, either as a
direct perpetrator (Biane) or as an aider and abettor (Burum and Erwin).

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The trial court sustained defendant Burum‟s demurrer to 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 gave the 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 document alleges 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 made both
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 more persons, but fixes punishment for 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 each is guilty
is separate and distinct from that of the other. It follows that the definitions of accessory,
4 The trial court did not specify in its order whether it was granting leave to
amend. However, because the defect in the indictment involves a question of law,
namely whether defendant Burum is legally capable of committing the charged crimes,
we construe the order as denying leave to amend the indictment.

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aider and abettor ([] §§ 31, 971) do not operate to subject either to prosecution under the
section proscribing the act of the other, and neither falls within the code definition of an
accomplice as to the act of the other (id.). Bribery is such a crime. The giver whose
offense is specifically made a crime ([] § 67) is not an accomplice in the separate and
distinct crime ([] § 68) of the receiver [citations].” (Id. at pp. 803-804.)
The indictment in 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 defendant in receipt of the bribe as alleged in
target crimes 1 and 2, and in counts 4, 5, 7 and 8. On that basis, the trial court sustained
defendant Burum‟s demurrer to those counts.
The People contend Wolden is 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 who is liable to
prosecution for the identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given.” (§ 1111.)
Wolden is not limited to section 1111, and instead involves application of the
principle that “[w]here the cooperation of two or more persons is necessary to the
commission of the substantive crime, and there is no ingredient of an alleged conspiracy
that is not present in the substantive crime, then the persons necessarily involved cannot
be charged with conspiracy to commit the substantive offense and also with the

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substantive crime itself. [Citations.] This is the „concert of action rule‟ or Wharton‟s
Rule. (1 Anderson, Wharton‟s Criminal Law and Procedure (1957) p. 191.) The classic
Wharton‟s Rule has been applied to crimes characterized by a general congruence of the
agreement and the completed offenses. The rule is considered in modern legal thinking
as an aid in construction of statutes, 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, Iannelli v. United States (1975) 420 U.S. 770, 785-786.) Because we reject 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 Wolden is 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 contend the principle that the bribe giver cannot aid and abet the bribe receiver
is obiter dictum because the issue in Wolden was whether the trial 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.
We addressed 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 which constitutes the ground of the decision, and

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it is this principle or rule which has the effect of a precedent. It is therefore necessary to
read the language of an opinion in the light of its 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.‟” (Id. at p. 199, quoting 9 Witkin, Cal.
Procedure (3d ed. 1985) Appeal, § 783, p. 753; see also Areso v. CarMax, Inc. (2011)
195 Cal.App.4th 996, 1005-1006.)
The issue in Wolden was whether, in a prosecution of a tax collector for receiving
bribes from property owners, the testimony of 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 was the issue the Wolden court had to decide in order to resolve the
corroboration question. Therefore, its resolution of that issue is not obiter dictum.
Even if we were to agree with the People‟s obiter dictum claim, we nevertheless
would confirm the underlying legal principle because it was discussed and applied in
People v. Davis (1930) 210 Cal. 540, which held, “It is likewise true that since 1915,
under the amendment of that year to section 1111 of the Penal Code providing that an
accomplice is one who is liable to the prosecution for the identical offense charged
against the defendant on trial, the giver and receiver 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]), inasmuch as the asking or receiving a

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bribe is made a separate offense from offering or giving a bribe under section 68 of the
Penal Code.” (Id. at p. 557.)
Application of the 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 who receives the
bribe—requires us to affirm the trial court‟s order sustaining defendant Burum‟s
demurrer to counts 4, 5, 7 and 8. Moreover, Wolden also holds that 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.2d at p. 804, citing People
v. Keyes (1930) 103 Cal.App. 624 [opinion of Supreme Court denying hearing].) Thus,
we conclude the trial court also correctly sustained defendant Burum‟s demurrer to target
crimes 1 and 2 of the conspiracy charged in count 1. The trial court purported to overrule
defendant Burum‟s demurrer to target crimes 1 and 2 with respect to the allegation that
he conspired with persons unknown to commit the two crimes in question, but we dismiss
those allegations as well. The identity of the person with whom defendant Burum
conspired cannot save 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 of Mandate
Although defendant Erwin joined in defendant Burum‟s demurrer, the trial court
overruled his demurrer to target crimes 1 and 2, and counts 4, 5, 7 and 8, because it found

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the indictment alleged 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 contends the trial court erred. We disagree.
The trial court relied on People v. Davis, supra, which holds “when the bribe is
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 of the other party 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, and if
there is any doubt as to the proper status of the emissary, the question is one, under
proper instructions, for the jury. [Citation.]” (People v. Davis, supra, 210 Cal. at pp.
557-558.)
Relying on People v. Davis, the trial court found that the indictment alleged
defendant Erwin “is accused of being an intermediary in Burum‟s bribery of Postmus,
Biane, and Kirk [who are] not the payor of the bribes. Erwin‟s involvement in those
transactions was not necessary to the commission of the crimes. Under Wolden[,] Erwin
cannot be prosecuted for conspiring with Burum to bribe Erwin but he can be prosecuted
for conspiring with Burum to bribe Postmus, Biane and Kirk.” Therefore, the trial court
overruled defendant Erwin‟s demurrer to target crimes 1 and 2 alleged in count 1, and
counts 4, 5, 7 and 8.

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The trial 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 on its facts, noting that the intermediary in that case “gave
no money of 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 contends the factual allegations 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 money of 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 indictment in this case.

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However, we do not view the facts cited in Wolden as exclusive. The indictment in this
case alleges specific facts that connect defendant Erwin with defendant Burum, and also
with Postmus, one of the bribe receivers.
More particularly, 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 conveyed various threats and/or inducements
from defendant Burum to Postmus, defendant Biane, and defendant Kirk; defendant
Burum offered to pay defendant Erwin if he helped obtain a settlement favorable to
Burum in the Colonies case; defendant Burum paid defendant Erwin $100,000 after
defendant Burum received a substantial portion of the Colonies settlement from the
county; defendant Erwin claimed to have created political mailers, which disclosed
Postmus was addicted to drugs, in order to persuade Postmus to convince defendant
Biane to vote in favor of settling the Colonies lawsuit; defendant Erwin reputedly said the
mailers would not go out if the lawsuit was settled on terms defendant Burum found
favorable; defendant Erwin created political mailers that depicted defendant Biane
unfavorably, and those mailers were to be used to influence defendant Biane to vote in
favor of a settlement in the Colonies lawsuit; after the Board approved the Colonies
settlement, defendant Burum hosted defendant Erwin on a private jet trip to New York
and Washington, D.C., where he provided meals, refreshments, lodging, watches,
entertainment, spending money, and prostitutes as gifts for defendant Erwin‟s assistance
in obtaining the Colonies settlement from the county.

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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 October 1,
2006, and November 28, 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 and an unindicted coconspirator] acting as intermediaries.”
For purposes of 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 of liability for conspiracy to commit bribery and/or receiving
a bribe, as well as aiding and abetting Postmus in committing those crimes. Therefore,
the allegations in count 4 and count 7 that defendant Erwin aided and abetted Postmus in
receiving a bribe are sufficient to state a public offense against defendant Erwin such that
the trial court correctly overruled his demurrer to 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 was the 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.

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Unlike the allegations discussed above that defendant Erwin acted as the intermediary for
defendant Burum and Postmus in settling the Colonies case, and that afterward Postmus
appointed defendant Erwin to assistant county assessor, there are no factual allegations
that suggest defendant Erwin acted on behalf of defendant Biane. As a result, we must
conclude the indictment is 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 agent of the bribe giver, defendant Burum, in persuading defendant
Biane to 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 of Public Funds in Violation of Section 424 (Alleged in
Count 1 As Target Crime 3, and in Counts 12 and 13 Against All Four Defendants)
The indictment alleges in count 1 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 November 28, 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” and that he did “in a manner not incidental and minimal without authority of
law, appropriate the same, and a portion thereof, to personal use and the use of another

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25
and loaned the same or any portion thereof and made a profit out of and 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 demurred to the target crime 3 allegation in count 1 that they
conspired to violate section 424, and to the charges alleged in counts 12 and 13 on the
ground that the statute applies only to the unauthorized acts of public officials. Because
county supervisors are authorized by law to settle lawsuits, defendants asserted they
could not be liable 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 other things that section 424 according to its express language
applies to embezzlement of public funds, or the manipulation of accounts and other acts
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
payment of a settlement in return for an alleged bribe. Alternatively, defendant Burum
argued that any other interpretation 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).

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26
The trial court agreed, relying in part on D’Amato, and sustained defendants‟
demurrers to target crime 3 of the conspiracy charged in count 1, and to counts 12 and 13.
Although not expressly stated, that ruling necessarily was without leave to amend.
a. The People’s Appeal
The People contend the trial court erred in sustaining defendants‟ demurrers 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 or the trial
court applied them incorrectly. We agree.
The first issue we must resolve is whether the alleged act of approving a
settlement in return for a bribe, or a kickback, violates section 424, which provides,
“Each officer of this state, or of any county, city, town, or district of this state, and every
other person charged with the receipt, safekeeping, transfer, or disbursement of public
moneys, who either: [¶] 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 imprisonment in the state prison for two,
three, or four years, and is disqualified from holding any office in this states. [¶] (b) As
used in this section, „public moneys‟ includes the proceeds derived from the sale of bonds
or other evidence or indebtedness authorized by the legislative body of any city, 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.”

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27
Defendants argued in the trial court, as they do in this appeal, that section 424 only
applies when the public official‟s action, which in this case is 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 language is 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 be construed 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 settlement of its 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 construed to allege the county
supervisors knew the bribes or kickbacks would be paid out of the money they had
appropriated for the settlement. As a 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 indictment alleges a violation of section 424.
In sustaining defendants‟ demurrers to the section 424 violations alleged in the
indictment, the trial court incorrectly focused on the purportedly lawful act of settling the

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28
lawsuit and ignored the additional allegation that the identified supervisors appropriated a
portion of the settlement money to their own use without authority of law by obtaining a
kickback or bribe. The alleged act of approving a settlement knowing it includes an
appropriation of money, a portion of which would go to 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 money to their own use does not require an inquiry into the
motives of the supervisors and therefore does not violate the separation of powers
doctrine. Consequently, the trial court also incorrectly relied on D’Amato to sustain
defendants‟ demurrers to target crime 3 of the conspiracy charge, and counts 12 and 13.
In D’Amato, the defendant city administrator recommended formation of a joint
powers committee in order to obtain funding for a 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
defendant city administrator was charged with aiding and abetting the codefendant in
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 codefendant in
violating Government Code section 1090 because, absent a financial interest on the part
of the city administrator (and thus presumably his own conflict of interest), the

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prosecution was based 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 members is to insure
absolute loyalty and undivided allegiance to the best interest of the [government agency]
they serve and to remove all 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 1090 is easily
identified: If a public official is pulled in one direction by his financial interest and in
another direction by his official duties, his judgment cannot and should not be trusted,
even if he attempts impartiality.‟ [Citation.] Thus, where a public official holds a
personal interest, criminal liability may accrue even in the absence of „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 powers doctrine, embodied in the California
Constitution, article III, section 3: „The powers of state government are legislative,
executive, and judicial. Persons charged with the exercise of one power may not exercise

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either of the others except as permitted by this Constitution.‟” (Id. at p. 869.) “When the
Legislature confers legislative power on a municipal body, a judicial or executive body
may not interfere with that legislative power, except as the Legislature authorizes.
[Citation.] [¶] „An . . . important corollary of the separation of powers doctrine is courts
cannot inquire into the impetus or motive behind legislative action.‟ [Citation.] „[T]he
rule barring judicial probing of lawmakers‟ motivations applies to local legislators as well
as to members of the state Legislature or of Congress.‟ [Citation.]” (D’Amato, at pp.
869-870.)
Unlike D’Amato, the indictment at issue here alleges the identified supervisors had
a financial interest in the money they appropriated for the settlement and therefore
violated section 424 by appropriating funds to their own use without lawful authority.
No inquiry into their subjective motives is necessary.
The indictment alleges 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 of whom are alleged to be officers of the county, or
persons charged with the receipt, safekeeping, transfer, or disbursement of public
moneys, can be held criminally responsible on a theory of aiding and abetting or
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 who is not an

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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 defendant in 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 was affirmed on appeal. Similarly, in Little, the defendant was charged
with and found guilty of violating section 424 by embezzling public funds based on his
conduct of receiving and spending money his girlfriend embezzled from her job as a
bookkeeper with the city water department. That conviction was affirmed on appeal.
In this case, defendant Burum‟s alleged act of offering and/or giving kickbacks or
bribes to the county supervisors in return for their 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 conclude the trial court should have overruled
defendants‟ demurrers to counts 12 and 13, and to target crime 3 of the conspiracy
charge. We will reverse the order sustaining the demurrers to those allegations and
counts.

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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 indictment alleges as target crime 4, that defendant Kirk violated Government
Code section 9054 by conspiring with defendant Burum and his 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 count 9 with
improper lobbying in violation of Government Code section 9054. Defendant Kirk
demurred to the allegations on the ground that Government Code section 9054 only
applies to the State Legislature. The trial court overruled his demurrer. Defendant Kirk
challenges that ruling in his petition for writ of mandate. Defendants Burum and Erwin
also contend in their writ petitions that Government Code section 9054 applies only to
members of the State Legislature, and therefore the trial court should have sustained their
demurrers to target crime 4 of the conspiracy charge. We disagree and conclude the trial
court correctly overruled their demurrers.
Government Code section 9054 states, in pertinent part, that, “Every person who
obtains, or seeks to obtain, money or other thing of value from another person upon a
pretense, claim, or representation that he can or will improperly influence in any manner
the action of any member of a legislative body in regard to any vote or legislative matter,
is guilty of a felony.”
Defendants contend in their writ petitions that the phrase “a legislative body” is
not defined in Government Code section 9054, and when viewed in context, refers only

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to the State Legislature and not a county board of supervisors. We do not share their
view.
“Under settled 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 other aids, such as the statute‟s purpose,
legislative history, and public policy.‟ [Citation.]” (Imperial 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 Code that purportedly pertains only to state
government, namely “Title 2, (Government of the State of California), Division 2,
(Legislative Department), Part 1, (Legislature), Chapter 1.5, (General), Article 3, (Crimes
against the Legislative Power).”

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Despite its placement in the code, it is apparent from other provisions in Article
3—all adopted in 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 Code refers to the
“California Legislature,” sometimes also accompanied by a 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 not intend, as defendants claim, to
limit that section only to the California Legislature. To put it bluntly, if the Legislature
had meant to limit the statute in the manner defendants contend, the Legislature would
have said so.
We also do not share defendants‟ view that the phrase “improperly influence” used
in Government Code section 9054 is unconstitutionally vague and/or overly broad.
“As generally stated, the void-for-vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement. [Citations.]” (Kolender v. Lawson (1983) 461 U.S.
352, 357.)
The phrase “improperly influence” means “„the use of personal, or any secret or
sinister, influence upon legislators‟” either in support of or opposition to the passage of
an act, as opposed to “„the open advocacy of the same before the legislature or any

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35
committee thereof in open session.‟” (Crawford v. Imperial Irrigation Dist. (1927) 200
Cal. 318, 321-322.) Government Code section 9054 makes it 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 can or will use personal, secret or sinister influence on a member of a
legislative body in regard to a vote or legislative matter.
In arguing the statute is vague, defendant Erwin cites examples of conduct that
could constitute “improper influence,” such as one legislator 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 because there is no solicitation of money or a 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 manner the
action of any member of a 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 member of any legislative 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 member of a legislative body.
For each of the reasons discussed, we reject defendants‟ various challenges to the
constitutionality of Government Code section 9054 and conclude the trial court properly

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overruled their demurrers to target crime 4 in the conspiracy charge, and defendant Kirk‟s
demurrer to count 9.
4. Conflict of Interest in Violation of Government Code Section 1090 (Alleged
in Count 1 as Target Crime 5, and in Count 11 Against Defendants Burum and Erwin,
for Aiding and Abetting Defendant Biane, Defendant Kirk and Postmus)
Count 11 of the indictment charges defendants Burum and Erwin with violating
Government Code section 1090 by aiding and abetting defendants Kirk and Biane, and
Supervisor Postmus, to commit a conflict of interest. The conspiracy alleged in count 1
of the indictment identifies Government Code section 1090 as target crime 5. Defendants
Burum, Erwin and Kirk demurred to count 11 and the conspiracy allegation in count 1
based on target crime 5 on the ground that, as a matter of law, the statute does not apply
to the acts of a private citizen. The trial court disagreed and overruled their demurrers.
Defendants Burum and Erwin contend in their writ petitions that the trial court
erred and that Government Code section 1090 only applies to government officials and
government employees, but not to private citizens. Therefore, as a matter of law, they
cannot violate that statute and the trial court should have sustained their demurrers. We
agree.
Government Code section 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. Nor shall state, county, district, judicial district, and city officers or

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employees be purchasers at any sale or vendors at any purchase made by them in their
official capacity.” The penalty for being a public officer or other person precluded by
law from making a contract in which the person has an interest is set out in Government
Code section 1097.5
As previously 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 abettor liability. Specifically,
„where the Legislature has dealt with crimes which necessarily involve the joint action of
two or more persons, and where no punishment at 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 be liable to
prosecution for conspiracy as an aider and abettor to commit a crime even though he or
she is incapable of committing the crime itself, the rule does not apply where the statute
defining the substantive offense discloses an affirmative legislative policy the conduct of
one of the parties shall go unpunished. [Citation.]‟ [Citation.]” (Id. at p. 873; see also In
re Meagan R. (1996) 42 Cal.App.4th 17, 24.)
5 Government Code section 1097 states, “Every officer or person prohibited by the
laws of this state from making or being interested in contracts, or from becoming a
vendor or purchaser at sales, or from purchasing scrip, or other evidences of
indebtedness, including any member of the governing board of a school district, who
willfully violates any of the provisions of such laws, is punishable by a fine of not more
than one thousand dollars ($1,000), or by imprisonment in the state prison, and is forever
disqualified from holding any office in this state.”

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We share our colleagues‟ view that the Legislature intended Government Code
section 1090 to exclude criminal liability on either a conspiracy or an aiding and abetting
theory for anyone other than public officials and public employees with a financial
interest in the underlying contract. Neither defendant Burum nor defendant Erwin was a
public official at the time alleged in the indictment. Therefore, the trial court should have
sustained their demurrers to count 11, and to target crime 5 of count 1.
III.
CONCLUSION
The trial court correctly sustained the demurrer of defendant Burum to target
crimes 1 and 2 of the conspiracy alleged in count 1, and to the crimes charged in counts
4, 5, 7 and 8. We will affirm that ruling and will further direct the trial court to strike
target crimes 1 and 2 in their entirety as to defendant Burum.
The trial court correctly overruled defendant Erwin‟s demurrer to target crimes 1
and 2, and to counts 4 and 7, which allege, respectively, that he conspired with defendant
Burum and with William Postmus, a member of the San Bernardino County Board of
Supervisors, to ask for and/or receive a bribe, and aided and abetted Postmus in
committing those crimes. The trial 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 as the recipient of the bribe. Therefore, we will
issue a writ of mandate directing the trial court to sustain defendant Erwin‟s demurrer to
counts 5 and 8 and dismiss those counts as to him.

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The trial court erred in sustaining defendants‟ demurrers to the conspiracy alleged
in count 1 based on target crime 3, the crime of misappropriating public funds in
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 Postmus in violating that section. Therefore, we
will reverse the trial court‟s ruling in that regard.
The trial 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 Code section 1090. The trial 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 Code section
1090. Therefore, we will direct a writ of mandate issue commanding the trial court to
sustain the demurrers of defendants Burum and Erwin to count 11, and target crime 5 of
the conspiracy alleged in count 1.
We also will deny defendant Kirk‟s petition for writ of mandate because the trial
court did not err in overruling his demurrer to count 9, the charge that he misappropriated
funds in 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.

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40
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, which alleges he conspired with defendants Erwin,
Kirk and Biane and with Postmus to misappropriate public funds in violation of Penal
Code section 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 two
noted crimes.
IV.
DISPOSITION
The trial court‟s ruling sustaining defendants‟ demurrers to counts 12 and 13, and
the related predicate crimes alleged in the conspiracy charged in count 1, is reversed.
The trial court is further directed to sustain in its entirety defendant Burum‟s demurrer to
the conspiracy alleged in count 1 based on the predicate crimes in Penal Code section 165
and Penal Code section 86 and to 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 count 1;
(2.) Sustain the demurrer of defendant Erwin to counts 5 and 8, and the related
predicate crime alleged in count 1, and dismiss counts 5 and 8.

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Petitioners are DIRECTED to 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 on all parties.
The trial court‟s ruling is otherwise affirmed, and the matter is remanded to the
trial court.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.

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