PEOPLE v. CHACON
53 Cal.Rptr.3d 876 (2007)
40 Cal.4th 558
150 P.3d 755
The PEOPLE, Plaintiff and Appellant,
v.
Maria Socorro CHACON, Defendant and Respondent.
No. S125236.
Supreme Court of California.
February 8, 2007.
Steve Cooley, District Attorney, George M. Palmer, Head Deputy District Attorney, Patrick D. Moran, Brent Riggs, Brentford J. Ferreira and Phyllis C. Asayama, Deputy District Attorneys, for Plaintiff and Appellant.
Nasatir, Hirsch, Podberesky & Genego, Michael D. Nasatir, Santa Monica, Tariq A. Khero; and John L. Ryan, for Defendant and Respondent.
Michael P. Judge, Public Defender (Los Angeles) and John Hamilton Scott, Deputy Public Defender, as Amici Curiae on behalf of Defendant and Respondent.
CORRIGAN, J.
Maria Chacon was charged with violating Government Code section 1090 by holding a financial interest in a contract made by the public agency of which she
was a member.1 The trial court ruled in limine that defendant could assert the defense of entrapment by estoppel. As a result, the People announced they could not proceed and the court dismissed the case under Penal Code section 1385.2 On appeal, the People challenged the recognition of entrapment by estoppel, a question of first impression. The Court of Appeal held it was error to allow the defense, and reversed the dismissal order. We granted defendant's petition for review to consider two issues: 1) whether, on appeal from a pretrial dismissal, the People may obtain review of a ruling that assertedly rendered them unable to proceed; and 2) whether the entrapment by estoppel defense is available under the circumstances of this case. We conclude that an in limine ruling may be reviewed on appeal from a dismissal. Further, an entrapment by estoppel defense is not available in this case. Accordingly, we affirm the judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND3
Defendant, while a member of the Bell Gardens City Council, sought and obtained appointment as city manager. Her conduct in securing that position resulted in criminal charges under Government Code section 1090.
Defendant solicited the support of fellow councilmember Rogelio Rodriguez, advising him of her desired salary and terms. However, the Bell Gardens Municipal Code provided that a councilmember was ineligible for appointment for one year following his or her departure from the council. City Attorney Arnoldo Beltran drafted an ordinance eliminating the waiting period, and Councilmember Pedro Aceituno placed it on the council agenda. Defendant joined the other councilmembers in voting unanimously for the ordinance.
The council met in a special closed session to choose a city manager. Defendant excused herself from this session, but remained in a nearby office. During a break, City Attorney Beltran asked Councilmember Aceituno to meet with defendant and the mayor to discuss defendant's appointment and contract terms. After Aceituno returned to the session, the council approved defendant's appointment, but modified her requested terms. The council then announced its decision in a public session. Defendant accepted the appointment, resigned from the council and signed an employment contract, approved by Beltran.
1. Government Code section 1090 states in pertinent part: "Members of the Legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members."
2. Unless otherwise indicated, all further statutory references are to the Penal Code.
3. The facts are taken from the preliminary hearing transcript.
4. Section 1385, subdivision (a) states in relevant part: "The judge ... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes ..."
5. Government Code section 1097 prescribes criminal penalties for persons who "willfully" violate Government Code section 1090.
6. Section 1252 provides in relevant part: "On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General."
8. Of course, the trial court in its discretion may refuse to dismiss the case. Defendant, who wants the dismissal here, does not claim the trial court should have refused to dismiss. Rather, she argues that the in limine ruling was not reviewable. Defendant seeks reversal of the Court of Appeal judgment with directions to affirm the order of dismissal.
9. The People do not dispute that elimination of the one-year waiting period was lawful.
10. See, e.g., U.S. v. Batterjee (9th Cir.2004) 361 F.3d 1210, 1216 (a defendant asserting the defense of entrapment by estoppel has the burden of proving that an authorized government official, empowered to render the asserted erroneous advice, and who has been made aware of all the relevant necessary facts, affirmatively told the defendant the proscribed conduct was permissible and that defendant reasonably relied on the erroneous advice); U.S. v. Funches (11th Cir.1998) 135 F.3d 1405, 1407 (To successfully assert this defense, a defendant must actually and reasonably rely on a point of law misrepresented by an official of the state); U.S. v. West Indies Transport, Inc. (3rd Cir.1997) 127 F.3d 299, 313 (entrapment by estoppel applies when the defendant establishes that a government official told him the conduct was legal; the defendant relied on the official's statements; and the defendant's reliance was reasonable and in good faith based on the identity of the official, the point of law represented, and the substance of the official's statement); U.S. v. Trevino-Martinez (5th Cir.1996) 86 F.3d 65, 69 (criminal defendant may be entitled to raise a defense of entrapment by estoppel only when a government official or agent actively assures a defendant that certain conduct is legal and the defendant, reasonably relying on that advice, continues or initiates the conduct); U.S. v. Levin (6th Cir.1992) 973 F.2d 463, 468 ("To determine the availability of the defense, the court must conclude that (1) a government must have announced that the charged criminal act was legal; (2) the defendant relied on the government announcement; (3) the defendant's reliance was reasonable; and, (4) given the defendant's reliance, the prosecution would be unfair"). 11. Defendant's proposed jury instruction stated: "Entrapment by Estoppel occurs when a government official such as the City Attorney of Bell Gardens, acts in such a way or represents to the defendant that certain conduct is legal and the defendant reasonably relies on the representation. [¶] In order for Entrapment by Estoppel to apply, the evidence must establish that the reliance on the official's misleading advice was reasonable—in the sense that a person sincerely desirous of obeying the law would have accepted the advice as true, and would have not have been put on notice to make further inquiries. [¶] Here the City Attorney of Bell Gardens is a government official duly licensed and authorized to render a legal opinion to a Bell Gardens Council Member."
12. Government Code section 41801 provides: "The city attorney shall advise the city officials in all legal matters pertaining to city business."
13. In California, cities are classified as "general law cities," organized under the general law of the state, or "chartered cities," organized under a charter. (Gov.Code, §§ 34100, 34101, 34102.) The government of a general law city is vested in the city council, city clerk and treasurer, police and fire chiefs, "and [a]ny subordinate officers or employees provided by law." (Gov.Code, § 36501, subd. (f), italics added.) A city council may appoint a city attorney and "such other subordinate officers or employees as it deems necessary." (Gov.Code, § 36505, italics added.) The city attorney and other appointive officers and employees serve at the pleasure of the city council. (Gov.Code § 36506.)
14. Defendant cites U.S. v. Hedges (11th Cir. 1990) 912 F.2d 1397, in which Hedges, an Air Force colonel, was convicted under a federal conflict of interest statute for negotiating employment with a defense contractor while still serving in the military. Hedges offered evidence that he had consulted his "Standards of Conduct" officer, who, by regulations and order of General McCarthy, was specifically charged with the "duty and responsibility of precluding any conflict of interest that might arise." (Id. at p. 1404.) The Eleventh Circuit Court of Appeals reversed the conviction, concluding the trial court erroneously refused an entrapment by estoppel defense. (Id. at p. 1405.) Hedges is not binding on us. Further, the Hedges court specifically noted that "this is not a reliance on advice of counsel case." (Ibid.) Instead, the Hedges court based its analysis on the express role of this military ethics officer. 15. The city attorney has a limited power to prosecute misdemeanors with the consent of the district attorney. Government Code section 41803.5, subdivision (a) provides: "With the consent of the district attorney of the county, the city attorney of any general law city ... may prosecute any misdemeanor committed within the city arising out of violation of state law. ." At the in limine hearing, the deputy district attorney represented that the Bell Gardens City Attorney does not prosecute misdemeanors. The power to prosecute felonies, such as those charged against defendant, is retained by the district attorney.