Penal Code § 86 PC – Legislator Requesting or Taking a Bribe in California

Penal Code § 86 PC is the California statute that makes it a crime for a legislator to ask for or to receive a bribe. A legislator includes state legislators and members of city or county legislative bodies. A violation of this law is a felony punishable by up to 4 years in jail or prison.

While this statute punishes a legislator for taking a bribe, Penal Code 85 PC punishes a person for bribing a legislator.

The full text of the code section reads as follows:

86. Every Member of either house of the Legislature, or any member of the legislative body of a city, county, city and county, school district, or other special district, who asks, receives, or agrees to receive, any bribe, upon any understanding that his or her official vote, opinion, judgment, or action shall be influenced thereby, or shall give, in any particular manner, or upon any particular side of any question or matter upon which he or she may be required to act in his or her official capacity, or gives, or offers or promises to give, any official vote in consideration that another Member of the Legislature, or another member of the legislative body of a city, county, city and county, school district, or other special district shall give this vote either upon the same or another question, is punishable by imprisonment in the state prison for two, three, or four years and, in cases in which no bribe has been actually received, by a restitution fine of not less than four thousand dollars ($4,000) or not more than twenty thousand dollars ($20,000) or, in cases in which a bribe was actually received, by a restitution fine of at least the actual amount of the bribe received or four thousand dollars ($4,000), whichever is greater, or any larger amount of not more than double the amount of any bribe received or twenty thousand dollars ($20,000), whichever is greater.

In imposing a fine under this section, the court shall consider the defendant’s ability to pay the fine.

Examples of unlawful acts

• a state legislator taking $12,000 to vote “no” on a particular piece of legislation.
• a school district board member receiving cash to use his public office to support a specific initiative.
• a local elected official asking a store owner for a free vacation to vote for a specific ordinance.

Legal Defenses

A legislator charged under this statute can challenge it with a legal defense. A few effective defenses include showing that:

• the accused was not a legislator in state or local government,
• the defendant did not exhibit corrupt intent,
• the defendant was entrapped.

Penalties

A bribery conviction is a felony offense (as opposed to a misdemeanor or an infraction).

The crime is punishable by:

• custody in state prison for up to four years, or
• felony (or formal) probation.

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

• 1. When is it a crime for a legislator to receive a bribe?
• 2. What are common defenses to Penal Code 86 PC?
  • 2.1 No legislator
  • 2.2 No corrupt intent
  • 2.3 Entrapment
• 3. What are the penalties?
• 4. Can a person get a conviction expunged?
• 5. Are there related offenses?
  • 5.1 Bribery by or of executive officers – PC 67 and 68
  • 5.2 Bribery by or of judges and jurors – PC 92 and 93
  • 5.3 Bribery by or of witnesses – PC 137 and 138

1. When is it a crime for a legislator to receive a bribe?

A prosecutor must prove the following to convict a legislator under this statute successfully:

1. the defendant was a legislative officer,
2. the defendant requested, took, or agreed to take a bribe,
3. when the defendant requested, took, or agreed to take the bribe, he/she represented that the bribe would unlawfully influence his/her official act, decision, vote, or opinion, and
4. the defendant acted with the corrupt intent that his/her public or official duty would be unlawfully influenced.¹

A person acts with “corrupt intent” when he or she acts to wrongfully gain a financial or other advantage for himself, herself, or someone else.²

Note that a “legislator” includes:

• state legislators,
• members of city or county legislative bodies, and
• members of school district legislative bodies.³

2. What are common defenses to Penal Code 86 PC?

An accused can contest a bribery charge with a legal defense. A few common defenses include the defendant showing that he/she:

1. was not a legislator,
2. acted without a corrupt intent, and/or
3. was entrapped by police officers.

2.1 No legislator

PC 86 only applies to legislators. Therefore, a defendant can always challenge a charge by showing that he/she did not hold the status of a legislative officer at the time of any alleged crime.

2.2 No corrupt intent

Recall that a legislator is only guilty under this statute if he/she acted with a corrupt intent when asking for or taking a bribe. A defense, then, is for an accused to show that he/she did not act with this intent.

2.3 Entrapment

Entrapment occurs when law enforcement officers lure or coax a person into committing a crime. It is an acceptable defense provided that the accused shows he/she only committed the crime because of the entrapment by the peace officers.

3. What are the penalties?

A violation of this statute is charged as a felony.

The crime is punishable by:

• imprisonment in state prison for up to four years, and/or
• substantial fines.

A judge may award a defendant with felony probation in lieu of prison time.

4. Can a person get a conviction expunged?

A legislator can only get a bribery conviction expunged if he/she receives probation in place of a prison term.

Under California law, persons convicted of a crime cannot get an expungement if the conviction results in prison time.

5. Are there related offenses?

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 judges and jurors – PC 92 and 93, and
3. bribery by or of witnesses – PC 137 and 138.

5.1 Bribery by or of executive officers – PC 67 and 68

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

Note the difference in the status of the offender. While PC 86 applies to legislators, these laws focus on executive officers.

5.2 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 the bribery by or of judges and jurors a criminal offense.

As with PC 86, a violation of these laws results in felony charges.

5.3 Bribery by or of witnesses – PC 137 and 138

Penal Code 137 PC and Penal Code 138 PC make the bribery by or of a witness a felony offense.

Like with PC 86, a person is only guilty under these laws if he/she acts with a corrupt intent.

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Legal References:

1. Penal Code section 86 PC; CALCRIM 2603 – Requesting or Taking a Bribe. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Diedrich (1982) 31 Cal.3d 263, 182 Cal.Rptr. 354, 643 P.2d 971; People v. Pic’l (1982) 31 Cal.3d 731, 183 Cal.Rptr. 685, 646 P.2d 847; People v. Powell (1920) 50 Cal.App. 436, 195 P. 456.
2. See same. See also People v. Gliksman (1978) 78 Cal.App.3d 343; People v. Zerillo (1950) 36 Cal.2d 222, 223 P.2d 223.
3. California Penal Code 86 PC; see also People v. Strohl (1976) 57 Cal.App.3d 347.