Penal Code § 68 PC – Bribery by an Executive Officer in California

Penal Code § 68 PC is the California statute that makes it a crime for an executive officer, a ministerial officer, or public employee to ask for or take a bribe. A violation of this law is a felony offense punishable by a jail or prison term of up to 4 years.

Section 68 PC states that “every executive or ministerial officer, employee, or appointee of the State of California…who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his or her vote, opinion, or action…shall be influenced thereby, is punishable by imprisonment in the state prison for two, three, or four years…”

Examples

• a district attorney accepting $1,000 from a person to drop criminal charges.
• a police officer asking a suspect for the keys to his car in order to “forget about” a DUI offense.
• an inspector taking cash for “overlooking” a contractor’s building code violation.

Legal Defenses

A person accused of bribery can try to challenge the charge with a legal defense. A few common defenses include:

• no executive officer or public employee,
• no representation of unlawful influence, and/or
• entrapment.

Penalties

A violation of California Penal Code Section 68 is charged as a felony. This is opposed to:

• a misdemeanor, or
• an infraction.

The crime is punishable by custody in state prison for up to four years.

Note that a judge may award a defendant with felony (or formal) probation in lieu of jail time.

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

• 1. What is a crime under Penal Code 68?
• 2. Can a defendant raise a legal defense?
  • 2.1 No executive/ministerial officer or public employee
  • 2.2 No representation of unlawful influence
  • 2.3 Entrapment
• 3. What are the penalties for violating the law?
• 4. Will a violation result in negative immigration consequences?
• 5. Can a defendant get a conviction expunged?
• 6. Does a conviction affect an offender’s gun rights?
• 7. Are there related crimes?
  • 7.1 Bribing an executive officer – PC 67
  • 7.2 Bribery by and of legislators – PC 85 and 86
  • 7.3 Bribery by and of witnesses – PC 137 and 138

1. What is a crime under Penal Code 68?

A prosecutor must prove the following to successfully convict a defendant under this code section:

1. the defendant was an executive officer, ministerial officer, or public employee of the State of California,
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

For purposes of this statute, an “executive officer” is a government official who may use his/her own discretion in performing his/her job duties (e.g., a district attorney or police officer).²

A “ministerial officer” is one that does not exercise his/her own discretion, but rather follows a superior’s directions (e.g., a clerk or inspector).³

Further, a “public employee” is a person who works for the State of California.

As used under these laws, “bribe” means:

• something of present or future value or advantage, or
• a promise to give something of present or future value or advantage.⁴

2. Can a defendant raise a legal defense?

Any person accused under this statute has a right to raise a legal defense to challenge the accusation. Common defenses include a defendant showing that:

1. he/she was not an officer or public employee,
2. he/she did not represent that the bribe would unlawfully influence his/her opinion, and
3. he/she was entrapped.

2.1 No executive/ministerial officer or public employee

Recall that a person is only guilty under this code section if he/she was either:

• an executive officer of the state,
• a ministerial officer of the state, or
• a public employee of the state.

This means it is always a defense for an accused to show that he/she was not working in any of these capacities. Note, though, that the defendant might still get charged under another bribery statute.

2.2 No representation of unlawful influence

Also recall that an officer or employee can only be guilty of taking a bribe if he/she did so while representing that the bribe would unlawfully influence his/her official act. A defense, then, is for a defendant to show that he/she did not make this representation. Perhaps, for example, the accused merely accepted someone’s money without saying anything.

2.3 Entrapment

Entrapment occurs when law enforcement lure or coax a person into committing a crime. The defense is common if a bribery charge arises after some type of police sting operation. It is an acceptable defense provided that the accused shows he only committed the crime because of the entrapment.

3. What are the penalties for violating the law?

A violation of PC 68 is a felony offense.

The crime is punishable by:

• imprisonment in state prison for up to four years, and/or
• substantial fines.⁵

Note that a judge does have the authority to award a defendant with felony probation in lieu of a prison sentence.

4. Will a violation result in negative immigration consequences?

A conviction under this statute could have negative results for non-citizen defendants.

California law says that some felonies (including a bribery offense) can amount to “aggravated felonies,” depending on the facts of the case.

If a non-citizen defendant commits one of these crimes, then he/she can be:

1. deported, or
2. marked as inadmissible.

Therefore, a bribery offense can result in negative immigration consequences if the facts show that the bribery committed was an aggravated felony.

5. Can a defendant get a conviction expunged?

A person convicted of bribery can only get the conviction expunged if he/she received probation in lieu of prison time (and successfully completed probation).

Expungements are not authorized for offenses that result in prison terms.

6. Does a conviction affect an offender’s gun rights?

A PC 68 violation will cost a person his or her gun rights.

California’s gun laws say that convicted felons cannot own or possess a gun.

Since bribery is a felony offense, a conviction means that the defendant would be stripped of his/her gun rights.

7. Are there related crimes?

There are three crimes related to an executive officer taking a bribe. These are:

1. bribing an executive officer – PC 67,
2. bribery by and of legislators – PC 85 and 86, and
3. bribery by and of witnesses – PC 137 and 138.

7.1 Bribing an executive officer – PC 67

Penal Code 67 PC is the California statute that makes it a crime for a person to bribe an executive officer.

Note that while PC 68 penalizes an officer from taking a bribe, this offense punishes the person that makes or offers the bribe.

7.2 Bribery by and of legislators – PC 85 and 86

Penal Code 85 PC addresses bribery of legislators and Penal Code 86 PC addresses bribery by legislators and elected officials.

While legislators and elected officials are the subject under this statute, Penal Code 68 is restricted to punishing executive/ministerial officers and public employees.

7.3 Bribery by and of witnesses – PC 137 and 138

Penal Code 137 PC addresses bribery of witnesses and Penal Code 138 PC defines the crime of bribery by witnesses.

As with a PC 68 violation, convictions under these code sections are felony offenses.

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact our law firm at the Shouse Law Group.

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Legal References:

1. CALCRIM No. 2603 – Requesting or Taking a Bribe. Judicial Council of California Criminal Jury Instructions (2017 edition). As to the “corrupt intent” element, see People v. Gliksman (1978) 78 Cal.App.3d 343.
2. CALCRIM No. 2603. See also People v. Strohl (1976) 57 Cal.App.3d 347.
3. See same.
4. California Penal Code 7(6) PC.
5. California Penal Code 68 PC.