Penal Code 85 & 86 PC | “Bribery of Elected Legislators” Laws Explained, When, Where & How

Anyone who offers a bribe to any of the officials with corrupt intent can be charged with bribery.

Definition of Bribery Of Elected Legislators Under California Penal Code 85 & 86?

The california Penal Code section 85 covers bribery1 to elected legislators2 which entails giving3 something of value to an elected legislator for the purpose of influencing his/her act/decision/opinion in your favor.

Penal Code 86

The California Penal Code section 86 covers bribes requested or agreed to by elected legislators.  In other words, the official himself/herself either requests or agrees to accept a bribe for the corrupt purpose of benefiting himself in exchange for an act/decision/opinion in the briber’s favor. Offering a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show an intent to bribe.  The thing offered does not need to actually be given, exist at the time it is offered, or have a specific value.

How Does A Prosecutor Prove The Crime?

To prove that you are guilty of bribery of elected legislators under penal code 85, the prosecutor has to prove the following facts or elements4:

  • You gave or offered a bribe
  • To an elected legislator
  • You acted with the corrupt intent5
  • To unlawfully influence that legislator’s act/decision/vote/opinion
Example

Joe, an influential lobbyist, sends a large campaign contribution to a congressman to influence the way the congressman votes on a bill that Joe has been lobbying for.  Joe may be guilty of commiting bribery.

Proving Penal Code 86

To prove guilt of bribery by elected legislators, the prosecutor has to prove the following facts or elements:6

handcuffs in courtroom
  • An elected legislator
  • Requested or agreed to receive7
  • A bribe or something of value
  • With a corrupt intent, for the purpose of influencing his/her decision in an official matter
Example

Ann’s district representative phones her and tells her that if she mails him a contribution for $500, he will make sure to bring to the other legislator’s attention the safety in local parks bill she has been writing to him about for the last several months. Under this scenerio both ann and the district representative could be prosecuted for bribery.

Legal Defenses

There are several defenses that your attorney can assert on your behalf to fight a charge of bribery.  Here are the most common ones:

Lack of Corrupt Intent

Because one of the elements the prosecutor has to show is that the defendant had corrupt intent, if you can show that you acted without such intent, you cannot be charged with bribery.

For example, you could have offered a campaign contribution to a congressman just because you really believe in what he does and the way his policies will shape the district rather than because you wanted him to vote a certain way on a bill.  However, you may not have had any corrupt intent for the bribe.

Coercion

Extortion is bribery with the additional element of coercion.  Accordingly, the defendant cannot be guilty of receiving a bribe and extortion in the same transaction8.

Entrapment

Is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit and therefore may be a defense to criminal liability9.  In such a situation, because the idea originated with the law enforcement and not with the defendant himself/herself, it would serve as a defense to criminal liability.

Intoxication

Voluntary intoxication can be a defense if you can show that you were intoxicated and that as a result, you were unable to form the corrupt intent that the prosecutor has to prove.

What are the penalties, punishment and sentencing guidelines for bribery?

Bribery of elected legislators (Penal Code Section 85):

  • punishable by imprisonment in the state prison for two, three or four years; and 
  • disqualified from holding any office in this state.

Bribery by elected legislators (Penal Code Section 86): 

  • Punishable by imprisonment in the state prison for two, three, or four years10.
  • In cases in which no bribe has been actually received punishable by a restitution fine of not less than two thousand dollars ($2,000) or not more than ten thousand dollars ($10,000) or;
  • In cases in which a bribe was actually received, punishable by a restitution fine of at least the actual amount of the bribe received or two thousand dollars ($2,000), whichever is greater, or any larger amount of not more than double the amount of any bribe received or ten thousand dollars ($10,000), whichever is greater, and, in addition, forfeits his or her office, employment, or appointment, and is forever disqualified from holding any office, employment, or appointment, in this state.

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Footnotes

  1. As used here, a bribe means something of present or future value or advantage, or a promise to give such a thing, that is given or offered with the corrupt intent to unlawfully influence the public or official action, vote, decision, or opinion of the person to whom the bribe is given.  Calcrim No. 2600; Bribe Defined. Penal Code Section 85. []
  2. A legislative officer is a member of the Assembly, Senate, or other legislative body specified in Penal Code Section 86 of this state. []
  3. The legislative officer does not need to have accepted the bribe. []
  4. Elements. Penal Code Section 85; CALCRIM No. 2600. []
  5. Corrupt Intent Is an Element of Bribery. People v. Gliksman (1978) 78 Cal.App.3d 343, 351 [144 Cal.Rptr. 451]People v. Zerillo (1950) 36 Cal.2d 222, 232 [223 P.2d 223].  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.  Corrupt Intent Defined. Penal Code, § 7, subd. 3. []
  6. Elements. Penal Code Section 86; CALCRIM No. 2603. []
  7. Requesting or agreeing to take a bribe does not require specific words or behavior, as long as the language used and the circumstances clearly show that the person is seeking a bribe from someone else. The prosecutor does not need to prove that the other person actually consented to give a bribe.  CALCRIM No. 2603. []
  8. People v. Powell (1920) 50 Cal.App. 436, 441 [195 P. 456]. []
  9. The crime is complete once an offer is made. Accordingly, subsequent efforts to procure corroborative evidence do not constitute entrapment. (People v. Finkelstin (1950) 98 Cal.App.2d 545, 553 [220 P.2d 934]; People v. Bunkers (1905) 2 Cal.App. 197, 209 [84 P. 364]. []
  10. California Penal Code Section 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 two thousand dollars ($2,000) or not more than ten thousand dollars ($10,000) 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 two thousand dollars ($2,000), whichever is greater, or any larger amount of not more than double the amount of any bribe received or ten thousand dollars ($10,000), whichever is greater.  In imposing a fine under this section, the court shall consider the defendant’s ability to pay the fine.” []

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