Penal Code § 641.3 PC – Commercial Bribery – California Law

Penal Code § 641.3 prohibits commercial bribery, which occurs when an employee takes a bribe worth more than $250.00 in exchange for using his or her position to benefit the other person.

The law is designed to promote fairness and transparency in the workplace, and to ensure that employees make decisions based on merit rather than personal gain.

Examples

• an employee accepts a $100,000 payment from their employer’s business competitors to disclose certain business practices belonging to the company.
• a manufacturer gives season tickets to an employee of a company in return for awarding it a contract with the company.
• a corporate executive accepts $25,000 from a certain media outlet in exchange for informing it of questionable hiring policies of their employer.

Common Defenses

You can challenge a commercial bribery charge with a legal defense. Effective defenses include showing that you:

• did not act with corrupt intent,
• took something with a value less than $250, and/or
• acted with the consent of the employer.

Penalties

A violation of California Penal Code section 641.3 can be charged as either a misdemeanor or a felony, depending on the amount of the bribe involved.

If the bribe was $1,000 or less, then the offense is charged as a misdemeanor offense. The crime is punishable by custody in county jail for up to one year.

If the bribe exceeds $1,000, then you receive a felony conviction. A felony offense is punishable by imprisonment in state prison for up to three years.

Our California criminal defense attorneys will explain the following in this article:

• 1. Commercial Bribery Defined
• 2. Best Defenses
• 3. Penalties
• 4. Record Expungement
• 5. Related Crimes

1. Commercial Bribery Defined

According to 641.3 PC, the act of commercial bribery occurs when employees, in a corrupt manner and without the employer’s consent, actively seek, accept, or consent to receive a bribe exceeding $250.00. This exchange is done in return for using their position to benefit the person offering the bribe.

A prosecutor must prove the following to successfully prove that you are guilty under the state’s commercial bribery statute:

1. you were an employee of a company who solicited or took something of more than $250 from someone other than your employer,
2. you did so with corrupt intent and without the knowledge or consent of your employer, and
3. you took the thing of value in exchange for using your position to the benefit of the other person.¹

For purposes of this statute, a “corrupt intent” means to purposely act to injure or defraud:

• the employee’s employer,
• the employer of the person offering the bribe, or
• a competitor of either employer.²

Note that this criminal law covers both parties to a bribe or kickbacks. This means it is a crime if:

• you accept a bribe, or
• you offer an employee a bribe.

2. Best Defenses

Our criminal defense attorneys often defend against PC 641.3 charges by showing that:

1. you did not act with corrupt intent.
2. you took something of value under $250.
3. you took something of value with the consent of your employer.

No corrupt intent

Recall that you are guilty under PC 641.3 only if you acted with corrupt intent. This means it is always a defense to show that you did not act with this purpose.

Value less than $250

This statute does not apply if you took something (or offered something) with a value of less than $250.³ A defense, then, is to show that you accepted something less than this value.

Consent of employer

Recall that you cannot be convicted under this statute unless the prosecutor shows that your employer did not consent to the taking of something of value. Therefore, a good defense is to show that you took something but did so with the consent of your company.

3. Penalties

A violation of this statute can get charged as either a misdemeanor or a felony, depending on the amount of the bribe.

You will receive a misdemeanor conviction if the amount was $1,000 or less. The crime is punishable by imprisonment in county jail for up to one year.⁴

If the bribe was greater than $1,000, then you are charged with a felony. A felony conviction is punishable by custody in state prison for up to three years.⁵

As to felonies, a judge can award you with felony (or formal) probation in lieu of prison time.

4. Record Expungement

If you are convicted of a misdemeanor commercial bribery charge, you can get an expungement provided that you successfully complete:

• jail time, or
• probation (whichever was awarded).

If you are convicted of felony bribery, you can get your conviction expunged only if you received probation instead of a prison term. California law prohibits expungements for crimes that result in prison custody.

5. Related Crimes

There are three crimes related to this statute. These are:

1. bribery by or of executive officers – PC 67 and 68,
2. bribery by or of legislators – PC 85 and 86, and
3. bribery by or of a witness – PC 137 and 138.

Bribery by or of executive officers – PC 67 and 68

Penal Code 67 and Penal Code 68 are the California statutes that make bribery by or of an executive officer a crime.

As with commercial bribery, you are only guilty under these laws if you act with corrupt intent.

Bribery by or of legislators – PC 85 and 86

Penal Code 85 PC and Penal Code 86 PC are the California laws that make bribery by or of legislators a criminal offense.

Unlike violations of PC 641.3, violations of these laws are always felony offenses.

Bribery by or of judges and jurors – PC 92 and 93

Penal Code 92 PC and Penal Code 93 PC are the California statutes that make bribery by or of judges and jurors a criminal offense.

Unlike the commercial bribery law, there is no knowledge element to these offenses. A prosecutor just has to show that:

• a bribe was offered or taken, and
• you acted with corrupt intent.

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Legal References:

1. California Penal Code 641.3a PC. The language of the code section reads as follows:

   (a) Any employee who solicits, accepts, or agrees to accept money or any thing of value from a person other than his or her employer, other than in trust for the employer, corruptly and without the knowledge or consent of the employer, in return for using or agreeing to use his or her position for the benefit of that other person, and any person who offers or gives an employee money or any thing of value under those circumstances, is guilty of commercial bribery.

   (b) This section does not apply where the amount of money or monetary worth of the thing of value is two hundred fifty dollars ($250) or less.

   (c) Commercial bribery is punishable by imprisonment in the county jail for not more than one year if the amount of the bribe is one thousand dollars ($1,000) or less, or by imprisonment in the county jail, or in the state prison for 16 months, or two or three years if the amount of the bribe exceeds one thousand dollars ($1,000).

   (d) For purposes of this section:

   (1) “Employee” means an officer, director, agent, trustee, partner, or employee.

   (2) “Employer” means a corporation, association, organization, trust, partnership, or sole proprietorship.

   (3) “Corruptly” means that the person specifically intends to injure or defraud (A) his or her employer, (B) the employer of the person to whom he or she offers, gives, or agrees to give the money or a thing of value, (C) the employer of the person from whom he or she requests, receives, or agrees to receive the money or a thing of value, or (D) a competitor of any such employer.

   See also People v. Riley (2015) 238 Cal.App.4th 1016.

2. California Penal Code 641.3d3 PC.
3. California Penal Code 641.3b PC.
4. California Penal Code 641.3c PC.
5. See same.