People v. Biane CA4/2

Filed 11/6/15 P. v. Biane CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant, E061951

v. (Super.Ct.No. FSB1102102)

PAUL ANTOINE BIANE et al., ORDER MODIFYING OPINION
AND DENYING PETITION FOR
Defendants and Respondents. REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT

The petition for rehearing filed on October 27, 2015, is denied. The opinion filed

in this matter on October 14, 2015, is modified as follows:

On page 11, footnote 5 should be added after the last sentence on that page, which

ends with “. . . described in section 803(c).” All subsequent footnotes should be

renumbered accordingly. The last full sentence on page 11, including the new footnote

should read as follows:
1
 Given these facts, we are not persuaded that the Legislature intended to exclude

conspiracies to commit target offenses that are based on misconduct in office but at the

same time to include conspiracies that are themselves based on misconduct in office,

even though their target offenses are not crimes enumerated or described in section

803(c).5

These modifications do not change the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:

HOLLENHORST
Acting P. J.

MILLER
J.

5 The Attorney General contends that the introductory phrase of section 801.5,
“[n]otwithstanding Section 801 or any other provision of law,” resolves any latent
ambiguity in sections 801.5 and 803 with respect to the Legislature’s intentions regarding
the applicability of section 801.5 to conspiracy. We would ordinarily give great weight
to that language as reflecting the Legislature’s intent to override any existing provisions
of law to the contrary. (See People v. Benson (1998) 18 Cal.4th 24, 31-32.) However, a
latent ambiguity exists “where ‘“some extrinsic evidence creates a necessity for
interpretation or a choice among two or more possible meanings.” [Citation.]’” (Coburn
v. Sievert, supra, 133 Cal.App.4th at p. 1495, quoting Mosk v. Superior Court (1979) 25
Cal.3d 474, 495, fn. 18.) Here, as we discuss, there is extrinsic evidence that despite that
language, the Legislature did not intend to extend the statute of limitations for
conspiracy.

2
Filed 10/14/15 P. v. Biane CA4/2

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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant, E061951

v. (Super.Ct.No. FSB1102102)

PAUL ANTOINE BIANE et al., OPINION

Defendants and Respondents.

APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Melissa Mandel, Deputy Attorney General; Michael A. Ramos, District Attorney, and

Michael Abney, Deputy District Attorney, for Plaintiff and Appellant.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and

Respondent Paul Antoine Biane.

1
 Arent Fox, Stephen G. Larson, Mary Carter Andrues, Jonathan E. Phillips; Law

Offices of Dennis A. Fischer and Dennis A. Fischer for Defendant and Respondent

Jeffrey Scott Burum.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and

Respondent Mark Allen Kirk.

Law Office of Rajan Maline and Rajan Maline for Defendant and Respondent

James Howard Erwin.

INTRODUCTION

Defendants and respondents Paul Biane, Mark Kirk, James Erwin and Jeffrey

Burum are defendants in a long-running political corruption prosecution, which has been

the subject of several prior appeals. At issue in this appeal is the trial court’s order

sustaining the defendants’ demurrers to count 1 of the indictment, without leave to

amend, and the subsequent dismissal of that count, based on the trial court’s conclusion

that the conspiracy alleged in count 1 was subject to a three-year statute of limitations

and that the prosecution was time-barred. The Attorney General contends that count 1,

as an offense “the basis of which is misconduct in office,” (Pen. Code, § 803, subd. (c))

is governed instead by the four-year statute of limitations provided for in Penal Code

section 801.5, and that the prosecution of count 1 is therefore not time-barred. We

disagree, and we will affirm the judgment of dismissal as to count 1.

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 FACTUAL BACKGROUND

As stated in People v. Biane (2013) 58 Cal.4th 381 (Biane I), the factual

background is as follows:

“On May 9, 2011, a grand jury issued a 29-count indictment against Paul Antoine

Biane, a member of the San Bernardino County Board of Supervisors; Mark Kirk, chief

of staff for a different member of the board of supervisors; defendant Jeffrey Burum, a

general partner in Colonies Partners, L.P. (Colonies); and defendant James Erwin, who

was an agent for Burum. The indictment alleged that these individuals conspired together

with William Postmus, who was the chairman of the board of supervisors and who has

already pleaded guilty and agreed to aid the prosecution, to settle a lawsuit brought by

Colonies against San Bernardino County (County) on terms favorable to Colonies in

exchange for a contribution of $100,000 each to political action committees controlled by

Biane, Kirk, Erwin, and Postmus. Among other charges, the indictment accused Burum

and Erwin of conspiracy to accept bribes to influence the vote of a public official (Pen.

Code, §§ 86, 165), to misappropriate public funds (Pen. Code, § 424), to commit a

criminal conflict of interest (Gov. Code, § 1090), and to improperly influence a

legislative action (Gov. Code, § 9054) (count 1; Pen. Code, § 182, subd. (a)(1)), and of

aiding and abetting the acceptance of bribes by Postmus and Biane (counts 4, 5, 7, and 8;

Pen. Code, §§ 86, 165).

“According to the indictment, Colonies is the owner of a 434-acre parcel of land in

Upland that was intended for residential and commercial development. The parcel

includes a 67-acre flood control basin over which the County had asserted easement

3
rights. Colonies spent $23.5 million on flood control improvements and requested that

the County reimburse those costs. When the County declined, asserting that the 67-acre

basin itself was sufficient for flood control without improvements, Colonies sued the

County in March 2002, challenging the County’s easements and claiming that it had been

deprived of its ability to develop the flood control basin. In July 2005, the Court of

Appeal ruled in favor of the County as to 30 acres of the easement established in 1933

but found issues of fact remained as to the applicability and extent of a 1939 easement.

“The indictment alleges that Burum, on behalf of Colonies, then concocted a

scheme to obtain a settlement of this litigation ‘through corrupt means’: a combination of

threats, extortion, bribery, and inducements to secure votes for a favorable termination of

the litigation from the five-member board of supervisors. Burum’s agent, Erwin,

conspired with Burum and conveyed threats and inducements from Burum to Postmus

and Biane, who were members of the board of supervisors, and to Kirk, who was chief of

staff to Gary Ovitt, a member of the board of supervisors. Erwin agreed to accept money

from Burum in exchange for influencing the votes of Postmus and Biane. Kirk agreed to

accept money in exchange for influencing Ovitt’s vote. Postmus and Biane joined the

conspiracy by agreeing to accept the bribes.

“The indictment recites that Postmus, after being provided cash, meals, and

entertainment of various kinds by Burum during a trade mission to China, announced to

the County’s administrative officer on September 20, 2005, ‘We’ve got to settle this

Colonies thing’; that Burum offered money to Erwin to assist in obtaining votes for the

settlement; that Burum offered money to Kirk if he could deliver Ovitt’s vote for the

4
settlement; that Burum offered money to Biane in exchange for a favorable settlement

from the County; and that Burum campaigned against Measure P (a ballot measure to

increase the salary of the members of the board of supervisors) as a means of exerting

pressure on Biane. Erwin told Postmus’s staff that Burum had hired private investigators

to sift through the board chair’s trash for incriminating information, and threatened to

distribute mailers to voters claiming that Postmus was addicted to drugs, as a means of

pressuring him to secure Biane’s vote. As a means of pressuring Biane directly, Erwin

created mailers related to the Measure P campaign asserting that Biane was in debt and

unable to pay his bills.

“In October or November of 2006, Burum and Postmus discussed the prospect of a

settlement at the Doubletree Hotel in Ontario, using Erwin as an intermediary. During

one meeting, Burum had a courier deliver ‘hit piece’ mailers relating to Measure P in an

effort to intimidate Postmus. Postmus and Biane eventually agreed to vote to approve a

settlement favorable to Colonies in exchange for a bribe. Kirk agreed, in exchange for a

bribe, to urge Ovitt to support the settlement.

“On November 28, 2006, over the objections of San Bernardino County Counsel

as well as private attorneys retained by the County, Postmus, Biane, and Ovitt provided

the necessary three votes on the five-member board of supervisors to approve a $102

million settlement with Colonies. In the months following the County’s initial payment

of $22 million to Colonies, Colonies made three separate payments of $100,000 each to

political action committees controlled, secretly or otherwise, by Biane, Kirk, and Erwin,

and two payments of $50,000 each to political action committees secretly controlled by

5
Postmus. Each of these conspirators funneled money from the committees for his own

personal benefit. Biane, Kirk, and Erwin failed to report these payments on their Fair

Political Practices Commission statement of economic interest forms or on their income

tax returns.” (Biane I, supra, 58 Cal.4th at pp. 385-387.)

PROCEDURAL HISTORY

Count 1 alleges that in violation of Penal Code section 182, subdivision (a)(1),

defendants conspired to commit the crimes of supervisor accepting a bribe (Pen. Code,

§ 165); asking for/receiving a bribe (Pen. Code, § 86); misappropriation of public funds

(Pen. Code, § 424); obtaining a thing of value to improperly influence a legislative action

(Gov. Code, § 9054); and conflict of interest (Gov. Code, § 1090). It further alleges that

in violation of Penal Code section 182, subdivision (a)(4), defendants conspired to cheat

and defraud any person of any property, by any means which are in themselves criminal,

or to obtain money or property by false pretenses or by false promises with fraudulent

intent not to perform those promises, and that in violation of Penal Code section 182,

subdivision (a)(5), defendants conspired to commit any act injurious to the public health,

the public morals, or to pervert or obstruct justice, or the due administration of justice.1

The indictment further alleges that the object of the conspiracy was to illegally obtain

$102 million from the County of San Bernardino for personal gain, and for certain public

officials to profit from those gains.

1 All further statutory citations refer to the Penal Code unless a different code is
specified.

6
 Burum demurred to count 1 or, in the alternative, moved to dismiss it as time-

barred, arguing that the statute of limitations for conspiracy is three years, commencing

from the commission of the last overt act alleged.2 The last overt act alleged took place

on July 12, 2007. The indictment was filed more than three years later, on May 5, 2011.

The prosecution argued, however, that count 1 was subject to the four-year statute of

limitations, which commences upon discovery of the offense, as provided in section

801.5 and section 803, subdivision (c) (hereafter section 803(c)).

The trial court held, based on the decision in People v. Milstein (2012) 211

Cal.App.4th 1158 (hereafter Milstein), that all conspiracies, regardless of their target

offenses, are subject to the three-year statute of limitations. It sustained the demurrer

without leave to amend as to count 1 and dismissed count 1. The trial court sustained the

demurrer with respect to other counts of the indictment but granted leave to amend as to

those counts. The court stated that the prosecution could include count 1 in an amended

indictment in order to preserve the issue for appeal or writ proceedings. The first

amended indictment realleged count 1. Defendants again demurred. The court sustained

the demurrer and stated that its ruling was retroactive to the date of its original ruling.

The prosecution filed a timely notice of appeal.

2 Burum demurred to and/or sought to dismiss counts 1, 4, 5, 7, 8 and 13 of the
indictment due to the expiration of the applicable statutes of limitations. The dismissal of
count 1 is the sole issue on appeal.
Biane also filed a demurrer to count 1 and other counts. The other defendants
joined in the demurrers as to count 1.

7
 LEGAL ANALYSIS

CONSPIRACY TO COMMIT CRIMES BASED ON MISCONDUCT IN PUBLIC

OFFICE IS NOT SUBJECT TO SECTIONS 801.5 AND 803(c)

Standard of Review

This appeal involves both the sustaining of a demurrer and the interpretation of a

statute. A demurrer to an accusatory pleading raises only issues of law (People v. Biane

(2013) 58 Cal.4th 381, 388 (Biane I); § 1004), and we independently determine whether

the charging document states a cause of action. (Zelig v. County of Los Angeles (2002)

27 Cal.4th 1112, 1126.) We assume the truth of all material factual allegations and

matters subject to judicial notice. (Honig v. San Francisco Planning Dept. (2005) 127

Cal.App.4th 520, 524.) The interpretation of a statute also presents a question of law that

is subject to de novo review. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488.) In

construing a statute, our objective is to ascertain and give effect to the Legislature’s intent

in enacting the statute. (People v. Skiles (2011) 51 Cal.4th 1178, 1185.)

Summary of the Issue

Section 801.5 provides that prosecution of any offense “described in subdivision

(c) of Section 803 shall be commenced within four years after discovery of the

commission of the offense, or within four years after the completion of the offense,

whichever is later.” Section 803(c) provides, in pertinent part: “A limitation of time

prescribed in this chapter does not commence to run until the discovery of an offense

described in this subdivision. This subdivision applies to an offense punishable by

imprisonment in the state prison or imprisonment pursuant to subdivision (h) of

8
Section 1170, a material element of which is fraud or breach of a fiduciary

obligation, . . . or the basis of which is misconduct in office by a public officer,

employee, or appointee . . . .” Section 803(c) lists a number of specific offenses to which

it applies, but the list is “neither exclusive nor exhaustive.”3 (Milstein, supra, 211

Cal.App.4th at p. 1167.) Accordingly, a crime which is not enumerated in section 803(c)

but meets one of the general descriptors in subdivision (c) is subject both to the four-year

statute of limitations provided for in section 801.5 and the discovery provision provided

for in section 803(c).

The crime of conspiracy is normally subject to a three-year statute of limitations,

which commences to run with the commission of the last overt act in furtherance of the

conspiracy. (Milstein, supra, 211 Cal.App.4th at p. 1165; § 801.) This limitation applies

regardless of the statute of limitations which applies to any target offense—for example,

murder has no statute of limitations (§ 799), but conspiracy to commit murder is subject

to the three-year statute of limitations. (Milstein, at pp. 1166-1167.) The Attorney

General argues, however, that section 803(c) encompasses conspiracies “the basis of

3 The enumerated offenses are Penal Code sections 68, 86 and 93 (Pen. Code,
§ 803(c)(1)); Penal Code sections 72, 118, 118a, 132, 134, and 186.10 (Pen. Code,
§ 803(c)(2)); Corporations Code sections 25540, “of any type,” and 25541 (Pen. Code,
§ 803(c)(3)); Government Code sections 1090 and 27443 (Pen. Code, 803(c)(4)); Welfare
and Institutions Code sections 11483 and 14107 (Pen. Code, § 803(c)(5)); Insurance
Code sections 548, 550, and 1871.4, and former section 1871.1 (Pen. Code, § 803(c)(6));
Business and Professions Code sections 580, 581, 582, 583, and 584 (Pen. Code,
§ 803(c)(7)); Business and Professions Code section 22430 (Pen. Code, § 803(c)(8));
Health and Safety Code section 103800 (Pen. Code, § 803(c)(9)); Penal Code section
529a (Pen. Code, § 803(c)(10)); and Penal Code section 368, subdivisions (d) and (e)
(Pen. Code, § 803(c)(11)).

9
which is misconduct in office” and that such conspiracies are therefore subject to the

four-year statute of limitations provided for in section 801.5. She contends that whether a

conspiracy comes within section 803(c) does not depend on the objective or target

offense of the conspiracy; rather, the critical fact is whether the conspiracy itself involves

misconduct in office. She differentiates between a conspiracy engaged in by public

officials such as the one alleged in this case, where the conspiracy allegedly involves the

misuse of public office to attain the goal of the conspiracy, and one engaged in by a

person who happens to be a public official or employee but which does not involve the

misuse of that person’s official capacity.4 As long as there is a nexus between the

person’s official capacity and the conspiracy, she contends, it falls within the plain

meaning of section 803(c)’s misconduct in office provision. She notes that the California

Supreme Court has held, albeit in a different context, that “[a] crime committed in a

defendant’s official capacity necessarily suffices to establish ‘willful or corrupt

misconduct in office’ under Government Code section 3060.” (Stark v. Superior Court

(2011) 52 Cal.4th 368, 410.) Accordingly, she contends, the phrase “an offense, ‘the

basis of which is misconduct in office’” includes a criminal conspiracy involving the

misuse of a public office or position, even if the objective of the conspiracy is not itself a

crime based on misconduct in office.

4 A conspiracy by a public official with others who are not public officials to sell
contraband not using public resources at any stage of the conspiracy is one possible
example of a conspiracy not subject to section 803(c), as the Attorney General conceives
it. In contrast, a conspiracy by a public official in which he or she uses public resources
in furtherance of the objective of selling contraband would fall within the Attorney
General’s conception of section 803(c).

10
 On its face, the Attorney General’s argument is plausible. Certainly, a public

employee or official can engage in a conspiracy to commit a crime purely in his or her

private capacity, and the Legislature could choose to apply a shorter statute of limitations

for such a private act than for one which does involve the misuse of public office.

However, even if the plain meaning of the statute allows for the Attorney General’s

interpretation, as we discuss below, the California Supreme Court’s repeated holding that

the statute of limitations for conspiracy is three years creates at least a latent ambiguity as

to the Legislature’s intent with regard to the inclusion or exclusion of conspiracy in the

provisions of sections 803(c) and 801.5. Where there is a latent ambiguity in a statute, a

court may resort to extrinsic sources to ascertain the intent of the Legislature. (Coburn v.

Sievert (2005) 133 Cal.App.4th 1483, 1495-1496.) And, as we will explain, the

Legislature has indicated that it does intend to maintain the three-year statute of

limitations for conspiracies to commit crimes which are either enumerated in section

803(c) or which fall within the general categories described in section 803(c). Given

these facts, we are not persuaded that the Legislature intended to exclude conspiracies to

commit target offenses that are based on misconduct in office but at the same time to

include conspiracies that are themselves based on misconduct in office, even though their

target offenses are not crimes enumerated or described in section 803(c).

11
 Analysis

We begin with Milstein, supra, 211 Cal.App.4th 1158, on which both parties rely.5

The defendants contend that Milstein is dispositive on this issue, asserting that the court

in that case held that conspiracy can never be subject to sections 801.5 and 803(c). This

is not entirely correct. In Milstein, the court addressed whether conspiracy to commit

fraud falls within the “material element of which is fraud” clause of section 803(c).

(Milstein, at pp. 1164-1169.) The court held that it does not. In reaching that conclusion,

the court held that because California courts have consistently recognized that conspiracy

is a separate and distinct crime from the offense that is the object of the conspiracy, the

elements of the target offense are not elements of conspiracy. Accordingly, the court

held that fraud is not a material element of conspiracy to commit fraud, and such a

conspiracy is not subject to section 801.5. (Milstein, at pp. 1166-1168.)

The Milstein court went on to discuss the legislative history of section 801.5. The

court noted, “[I]t is a well-established principle of statutory construction that the

‘Legislature . . . is deemed to be aware of statutes and judicial decisions already in

existence, and to have enacted or amended a statute in light thereof.’ [Citation.] At the

5 The Attorney General asserts that Milstein established a three-part analysis for
the purpose of determining whether a conspiracy is subject to section 803(c), and that the
final prong of the analysis is whether the charged conspiracy contains a material element
of fraud. She asserts that Milstein holds that if the conspiracy does not contain a material
element of fraud, it may be subject to sections 801.5 and 803(c). She contends that the
trial court skipped this “critical third step” in determining whether the conspiracy alleged
in this case falls within section 803(c). Milstein did not, however, create any type of test
for determining whether conspiracies in general come within section 803(c). (Milstein,
supra, 211 Cal.App.4th at pp. 1164-1169.)

12
time section 801.5 was amended by the Legislature in 1995 to apply a four-year-after-

discovery statute of limitations to any offense described in section 803, subdivision (c)

(Stats. 1995, ch. 704, § 1, p. 5313), it had long been decided by the California Supreme

Court that a three-year statute of limitations applies to criminal conspiracies commencing

with the last overt act in furtherance of the conspiracy ([People v. Zamora (1976) 18

Cal.3d 538, 548-549, 560; People v. Crosby (1962) 58 Cal.2d 713, 727-729]). However,

the Legislature made no attempt to include conspiracy to commit any crime among the

offenses subject to a four-year limitations period, either in 1995 when it expanded section

801.5’s application to any offense described in section 803, subdivision (c) (Stats. 1995,

ch. 704, § 1, p. 5313), or in 1998 when it expanded section 803, subdivision (c)’s list of

enumerated offenses (Stats. 1998, ch. 944, § 2, p. 6941). As this court observed in

[People v. Prevost (1998) 60 Cal.App.4th 1382], ‘[l]egislative silence in view of the case

law such as [Davis v. Superior Court (1959) 175 Cal.App.2d 8], Crosby and Zamora, is

instructive. It informs us that there is no reason to depart from the legal precedent which

provides that criminal conspiracy has a three-year statute of limitations, irrespective of

the underlying offense.’ [Citation.]” (Milstein, 211 Cal.App.4th at p. 1168, fn. omitted.)

Thus, the court did not hold, as defendants assert, that the statute of limitations for

conspiracy can never be other than three years. Rather, the court found no reason to

conclude that the Legislature intended to apply a four-year statute of limitations to

conspiracy based upon the statute of limitations that applies to the conspiracy’s target

offense.

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 Milstein’s discussion of the history underlying sections 803(c) and 801.5 is

relevant, however, and the history of sections 801.5 and 803(c) subsequent to Milstein

demonstrates that (1) the Legislature understood Milstein to reflect existing law, i.e., that

the crime of conspiracy is not subject to the extended limitations period provided for in

section 801.5, and (2) that for financial reasons, the Legislature did not want to extend the

statute of limitations for conspiracy to commit any of the offenses enumerated or

described in section 803(c). In the 2013-2014 legislative session, Senate Bill No. 951

was introduced to add section 801.7 to the Penal Code, to provide that “Prosecution for

conspiracy to commit a felony pursuant to Section 182 shall be commenced within the

time required for the commencement of prosecution for the underlying crime.” (Sen. Bill

No. 951 (2013-2014 Reg. Sess.) § 2