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*The following provisions should be included in any instruction on commercial bribery:
1. You may not convict the defendant of commercial bribery unless it is proven that the “thing of value” had a monetary worth of over $100.
[2. [If defendant is the employee] Defendant must have the specific intent to use [his] [her] position for the benefit of the person from whom the money or thing of value was received or promised with the further specific intent to injure or defraud __________ [insert appropriate person from PC 641.3(d)(3)].]
[2. [If defendant is non-employee] Defendant must have had the specific intent that the employee use [his] [her] position for the benefit of defendant and, further, defendant must have specifically intended to injure or defraud __________ [insert appropriate person per PC 641.3(d)(3)].]
Points and Authorities
The monetary worth provision is required by PC 641.3(b). That section makes it clear that the “thing of value” must be of monetary value and cannot, therefore, be an intangible matter not capable of specific valuation.
The statute actually includes two specific intents: (1) to use the employee’s position for the benefit of the non-employee (PC 641.3(a) and (2) to injure or defraud an employer or competitor. (PC 641.3(3).)
NOTE: PC 641.4 provides that a person may be prosecuted under that section and/or PC 641.3 (general commercial bribery) but cannot be punished under both sections.