Opinion
H035478
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. KULWANT LASHER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Santa Clara County Super. Ct. No. CC819098
Defendant Kulwant Lasher appeals from a judgment of conviction entered after a jury found him guilty of offering a bribe to a public officer or employee (Pen. Code, § 67.5, subd. (b).) The trial court placed defendant on probation for three years and imposed a 90-day sentence in county jail. On appeal, defendant contends that section 67.5 is unconstitutionally vague. He also contends that there was insufficient evidence to sustain his conviction. We affirm.
All further statutory references are to the Penal Code.
I. Statement of Facts
Stephen Lodge, the chief of police for the City of Santa Clara (city), is responsible for the issuance, suspension, and revocation of taxicab licenses. The permit unit of the police department, which is staffed by a sworn police officer and a community service officer, oversees, among other things, the licensing of taxicabs, monitors compliance with the municipal code, conducts inspections, and makes recommendations to the police chief regarding the suspension and revocation of taxicab licenses. After a taxicab license is revoked, a taxicab company can no longer lawfully operate its business in the city. When a taxicab company appeals the revocation order, a hearing is held.
In July 2008, defendant was the owner of USA Express Cab Company (USA Express), and his license to operate the taxicab company had been suspended. On July 11, 2008, Ty Oto, a community service officer and a taxicab inspector for the city, notified defendant that his license to operate USA Express would be revoked permanently unless his company complied with the municipal code. Defendant's company was unable to do so.
On July 29, 2008, Chief Lodge signed a revocation notice directed to USA Express. USA Express had failed to maintain the minimum of 10 safety-inspected taxicabs and the minimum of 10 licensed drivers, lacked adequate insurance, and had picked up passengers in the city while its license was suspended.
After defendant appealed the revocation of the license, a hearing was held on September 8, 2008. The hearing officer was the city manager, and defendant, his attorney, and the police chief were present. Defendant's attorney stated that USA Express had 10 safety-inspected taxicabs at that time. Defendant's attorney also stated that he did not have all the necessary documents, and the hearing was continued for eight days. During this period, the city provided defendant with copies of the documents regarding the problems with his taxicabs. The police chief also asked Oto to go to defendant's place of business to conduct safety inspections prior to the continued hearing date. A favorable inspection by Oto would have assisted defendant to get the company's license reinstated.
Oto did not have a social relationship with defendant, and he knew him only through his official duties as a taxicab inspector. Oto contacted defendant and scheduled an inspection at USA Express for September 11, 2008. When Oto arrived on that date, he began inspecting the taxicabs in the garage area. Defendant and several drivers were present while Oto conducted the inspection. Oto observed that the taxicabs would not pass the inspection because there were violations involving lighting, signage, and body damage.
After Oto had inspected four taxicabs, defendant suggested that he take a break. Defendant escorted Oto to his upstairs office where they chatted and had a cold drink. No one else was present in the office. After about five or 10 minutes, Oto decided to return to the garage area. As Oto was walking out the office door, defendant slipped some money into Oto's right front pocket, and said "something to the effect of . . . I realize that I forgot to get you a gift, . . . " Oto was shocked, and said "something like that's not necessary, or that's not the kind of thing we do . . . ." Oto pulled the money out of his pocket and realized it was five $100 bills. Oto then excused himself and called the police. When the police officer arrived, Oto gave him the $500.
The defense presented the testimony of Kalwindar Singh, the owner of an auto repair shop in Campbell. He inspected all the taxicabs of USA Express in July and September 2008, and they passed the inspection requirements of the City of San Jose. On cross-examination, he acknowledged that the respective cities conduct their own inspections.
Maria Jimenez, the taxi industry regulator for the City of San Jose, knew defendant as the owner of USA Express. As of May 2008, USA Express had 11 taxicabs that were permitted in the City of San Jose. She did not know whether the two cities had different standards governing taxicabs.
II. Discussion
A. Constitutionality of Section 67.5
Defendant contends that section 67.5 is unconstitutionally vague in violation of our state and federal Constitutions.
Section 67.5 states: "(a) Every person who gives or offers as a bribe to any ministerial officer, employee, or appointee of the State of California, county or city therein, or political subdivision thereof, any thing the theft of which would be petty theft is guilty of a misdemeanor. [¶] (b) If the theft of the thing given or offered would be grand theft the offense is a felony."
" 'The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of "life, liberty, or property without due process of law," as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must " 'be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.' " [Citations.]' (Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) [¶] This court has recognized 'the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute . . . cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." ' (Walker v. Superior Court (1988) 47 Cal.3d 112, 143.) Therefore, 'a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that "the law is impermissibly vague in all of its applications'" . . . [Citation.]' (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201.)" (People v. Morgan (2007) 42 Cal.4th 593, 605-606.)
Defendant argues section 67.5 "is vague and ambiguous as to what conduct is prohibited and to what the purpose of the bribe or gift might be." Not so. The statute criminalizes the giving or offering of a bribe to a public officer or employee. As commonly understood, a bribe is "money or favor given or promised in order to influence the judgment or conduct of a person in a position of trust." (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 142.) This definition is consistent with the legal definition of bribe as set forth in section 7, subdivision (6), which states: "[t]he word 'bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action, vote, or opinion, in any public or official capacity." (§ 7, subd. (6).) Thus, section 67.5 provides adequate notice regarding the proscribed conduct and sufficient guidance to law enforcement.
Defendant also argues that section 67.5, subdivision (b) is "so vague and ambiguous that law enforcement cannot have sufficient guidelines by which to enforce the statute." We disagree. Subdivision (b) states when the offense is elevated to a felony, that is, "[i]f the theft of the thing given or offered would be grand theft the offense is a felony." (§ 67.5, subd. (b).) At the time of defendant's offense, "grand theft" was defined as "[w]hen the money, labor, or real or personal property is of a value exceeding four hundred dollars ($400) . . . ." (Former § 487, subd. (a).) Though there may be different methods for determining the value of a particular item, the phrase "value exceeding four hundred dollars" is not ambiguous. Here, defendant gave a bribe of $500 in cash, which clearly exceeded $400. Thus, defendant has failed to demonstrate that the statute is vague in all its applications.
Section 487, subdivision (a) has been amended to replace "four hundred dollars ($400)" with "nine hundred fifty dollars ($950)." (Stats. 2010, ch. 694, § 1.5.)
In sum, section 67.5, section 7, subdivision (6), and section 487 adequately place individuals on notice that giving or offering something that is worth more than $400 to a public officer or employee with the intent to influence that individual's official conduct is a felony. Thus, we reject defendant's void for vagueness challenge to section 67.5.
B. Sufficiency of the Evidence
Defendant next contends that the evidence was insufficient to establish the necessary elements of section 67.5.
"The law we apply in assessing a claim of sufficiency of the evidence is well established: ' " ' "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " ' [Citation.] The standard is the same under the state and federal due process clauses. [Citation.] 'We presume " 'in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." [Citations.]' [Citation.]" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294.)
Here, the prosecutor was required to prove: (1) defendant gave a bribe of a value exceeding $400 to a public employee; and (2) defendant acted with the corrupt intent to unlawfully influence that employee's official act, decision, or opinion. (§ 67.5; CALCRIM No. 2601.)
Defendant does not dispute that Oto was a city employee or that the money he gave to Oto was more than $400. He argues, however, that there was insufficient evidence that he acted with corrupt intent.
Here, defendant knew that his license to operate USA Express had been revoked permanently because the company did not have the minimum number of taxicabs that met the safety requirements of the municipal code. He appealed that decision, a hearing was held, and then continued until September 16, 2008. Prior to the continued hearing date, Oto made arrangements with defendant to inspect the taxicabs. When Oto arrived on September 11, 2008, he began inspecting the taxicabs in the garage area where several drivers were present. Oto observed that the taxicabs would not pass the safety inspection. Defendant then suggested that Oto take a break and led him to an office where no one else was present. After a short conversation, Oto decided to return to the garage area. As Oto was walking out of the office, defendant placed $500 in Oto's pocket and stated that he had forgotten to give him a gift. Oto knew defendant only through his official duties as a taxi cab inspector. Based on the timing of the bribe, defendant's awareness that the inspection could affect whether his license was reinstated, and his knowledge that Oto was responsible for determining whether the taxicabs met the safety requirements, one could reasonably conclude that defendant acted with corrupt intent to unlawfully influence Oto in the performance of his official duties. Thus, there was substantial evidence to support defendant's conviction of section 67.5.
Defendant argues, however, that since Oto did not advise him that the taxicabs would not pass inspection on September 11, 2008, there was no evidence that he gave money to Oto to influence the results of the inspection. There is no such requirement for a conviction under section 67.5. People v. Gaio (2000) 81 Cal.App.4th 919 (Gaio) considered the elements of bribery under section 67.5 and concluded that the offense "did not require that each bribe have been given and received with intent to influence a specific official act by [the county employee]. The evidence was sufficient if it established that [the county employee] received [the defendant's] payments, and [the defendant] made them, with the intent (or agreement or understanding . . .) that [the county employee] be influenced in any one or more instances, types, or courses of official action." (Gaio, at p. 931.) Thus, evidence was not required to prove that defendant gave Oto the bribe with the intent to influence a specific official act.
III. Disposition
The judgment is affirmed.
Mihara, Acting P. J. WE CONCUR: Duffy, J. Walsh, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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