Supreme Court of California Justia
Docket No. S125236
People v. Chacon

Filed 2/8/07


Plaintiff and Appellant,
Ct.App. 2/4 B164649
Los Angeles County
Defendant and Respondent.
Super. Ct. No. BA219058

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

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.”
Unless otherwise indicated, all further statutory references are to the Penal

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.
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.

The facts are taken from the preliminary hearing transcript.

Defendant was charged with violating Government Code section 1090
because, as a city councilmember, she had “participated in making or causing to
be made . . . for the Bell Gardens City Council [an employment contract] in which
she was financially interested or had the expectation of financial interest.” By
pretrial motion, defendant informed the court she sought to call Beltran as a
witness. She represented that Beltran advised her on the legality of her efforts to
become city manager and was actively involved in the appointment process.
Concerned that Beltran might invoke his Fifth Amendment privilege not to testify,
defendant asked the court to grant him use immunity. By separate motion, the
prosecutor sought to exclude evidence of Beltran’s advice as irrelevant, arguing
that because defendant was charged with a general intent crime, advice of counsel
was not a defense.
On the eve of trial, defendant advised the court that she intended to assert
the defense of “entrapment by estoppel.” Citing United States v. Tallmadge (9th
Cir. 1987) 829 F.2d 767, she contended that the defense, based on federal due
process, applied because she relied on advice from a government official that her
conduct was legal. The court declined to confer immunity on the city attorney,
and took the novel question of the defense under submission.
The court ultimately denied the motion to exclude evidence of Beltran’s
advice and ruled that defendant could present evidence of entrapment by estoppel.
The court expressed doubt that a city official’s advice could bind the state, but felt
compelled to follow Cox v. Louisiana (1965) 379 U.S. 559. In Cox, the United
States Supreme Court reversed a conviction because the defendant had acted at the
direction of the local police chief. Applying Cox, the court ruled that it would
“permit” the defense, noting the jury must determine whether defendant
reasonably relied on Beltran’s advice.
The prosecutor called the ruling a “devastating development,” and asked for
a continuance to seek writ review. Defendant objected that she was ready for trial
immediately. The court agreed that its recognition of entrapment by estoppel in
these circumstances was a “fair question for appeal,” but expressed concern at
granting a continuance over defendant’s objection.
When the prosecutor asked whether the court intended to instruct on the
newly recognized defense, the court replied that it would do so if warranted by the
evidence. The prosecutor responded, “[T]he People are announcing that we’re
going to be unable to proceed to trial.” The court then dismissed the case under
section 1385.4
The trial court incorporated its ruling in the minutes: “The court denies the
People’s motion to exclude testimony regarding advice of counsel to defendant by
the Bell Gardens City Attorney. As a general matter, advice of counsel is not a
defense in actions under Government Code 1090 and 1097,” which the court
determined were general intent crimes.5 “However, in this case defendant has
asserted the defense of entrapment by estopp[el].” The minutes also reflect that
the court had “not settle[d] upon the language of any jury instructions, but if
defendant’s evidence established the necessary elements of the defense the court
would give the jury an appropriate instruction. The People then announced they
were unable to proceed.”
The People appealed under section 1238, subdivision (a)(8) (hereafter
section 1238(a)(8)) from “the orders denying the People’s motion to exclude
evidence and dismissing the case. . . .” The Court of Appeal considered the merits
of the in limine ruling. It assumed without deciding that the defense of entrapment
by estoppel is recognized in California and that defendant would present sufficient
evidence at trial to warrant an appropriate instruction. Unlike the trial court, the

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. . . .”
Government Code section 1097 prescribes criminal penalties for persons
who “willfully” violate Government Code section 1090.

Court of Appeal distinguished Cox v. Louisiana, supra, 379 U.S. 559, on the basis
that the police official in Cox was responsible for administering and enforcing the
particular statute at issue. The Court of Appeal concluded that the Bell Gardens
City Attorney has neither enforcement nor regulatory authority over criminal
conflict of interest statutes. Thus, as a matter of law, the city attorney did not have
the power to bind the state to an erroneous interpretation of the conflict of interest
statutes. The Court of Appeal reversed the order of dismissal. It then directed the
trial court to exclude evidence of, and deny instruction on, the defense.
A. Consideration of the In Limine Ruling

Defendant claims that although the judgment of dismissal was “technically”
appealable, the Court of Appeal improperly considered the underlying in limine
ruling. Defendant urges the People could obtain appellate review of that ruling
only in conjunction with a defense appeal following her conviction. (§ 1252.)6
The prosecution’s right to appeal in a criminal case is strictly limited by
statute. (People v. Williams (2005) 35 Cal.4th 817, 822.) Long standing authority
requires adherence to these limits even though the “the People may thereby suffer
a wrong without a remedy.” (People v. Superior Court (Howard) (1968) 69
Cal.2d 491, 499.) The circumstances allowing a People’s appeal are enumerated
in section 1238.
The People relied on subdivision (a)(8) of section 1238, which allows
appeal from “[a]n order or judgment dismissing or otherwise terminating all or any
portion of the action including such an order or judgment after a verdict or finding
of guilty or an order or judgment entered before the defendant has been placed in

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.”

jeopardy or where the defendant has waived jeopardy.” The trial court dismissed
the action in the interest of justice under section 1385 before jeopardy attached.
The question here is the permissible scope of review on the People’s appeal.
Both defendant and the People agree that the in limine ruling was the focus
of the People’s appeal. The subsequent dismissal merely followed the People’s
declared inability to proceed because of the in limine ruling. The Court of Appeal
reasoned that “if the case against Chacon goes forward to trial, the entrapment by
estoppel defense is allowed, and she is acquitted, the People could not appeal
because jeopardy would have attached. This places the People in an impossible
position because they could not have obtained appellate review to determine
whether the defense of entrapment by estoppel is cognizable.”
The Court of Appeal properly relied on the long-established rule that if a
trial court dismisses a case because the People announce they cannot proceed in
light of a pretrial ruling, the prosecution may appeal the dismissal, and, as part of
the appeal, challenge the underlying ruling. This rule, extending back three
decades, finds its origin in a line of cases in which trial courts granted non-
statutory suppression motions, then dismissed the actions after the People
announced they were unable to proceed. On appeal of the dismissal, these courts
concluded that the merits of such suppression rulings were cognizable. (People v.
Dewberry (1975) 40 Cal.App.3d 175, 181-185; People v. Mills (1985) 164
Cal.App.3d 652, 654-655; People v. Angeles (1985) 172 Cal.App.3d 1203, 1209-
1211; People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1652-1656)

In Yarbrough, the Court of Appeal noted the general rule that in limine
rulings are not binding because the trial court has the power to reconsider, modify
or set aside its order before submission of the cause. (Yarbrough, supra, 227
Cal.App.3d at p. 1655.) This general rules applies to the prosecution as well as
defense. (Ibid.) Nevertheless, the Yarbrough court observed that exceptions to
the general rule exist, including the circumstance in which in which a prosecutor

accepts a dismissal of the charge in order to obtain review of the ruling on appeal.
As the Yarbrough court explained, this exception “is recognized by the Dewberry-
Angeles-Mills line of cases upholding review of an adverse evidentiary ruling on
an appeal [of a dismissal] by the People where that ruling renders the People
unable to proceed to trial. [Citations.] The court in Dewberry reached that
conclusion commonsensically: ‘It would have little meaning if the court could
consider only the technical correctness of the order of dismissal but not review the
reason behind it, especially where the two are intertwined.’ [Citation.] Allowing
appellate review in such a case makes sense for another reason as well: review by
writ of prohibition or mandate does not lie. (See, e.g., People v. Municipal Court
(Ahnemann) (1974) 12 Cal.3d 658, 660.) A final reason for following Dewberry,
Angeles and Mills jumps out: the need for consistency and clarity in the definition
of reviewable questions on an appeal by the People pursuant to section 1238,
subdivision (a)(8).” (Id. at pp. 1655-1656.)
There is no reason to disturb this well-established rule: When the trial
court dismisses the case because the prosecution announces it is unable to proceed
as a result of a pretrial ruling, the People may appeal the order of dismissal under
section 1238(a)(8) and by this means seek review of that ruling underlying the
dismissal.7 “An appeal under section 1238, subdivision (a)(8) is an election of
remedies.” (People v. Dewberry, supra, 40 Cal.App.3d at pp. 183.) To obtain
appellate review of a pretrial ruling, the prosecution must suffer a dismissal. If the
appeal fails, the prosecution is precluded from refiling the case. “If, pursuant to
paragraph (8) of subdivision (a), the people prosecute an appeal to decision, or any
review of such decision, it shall be binding upon them and they shall be prohibited
from refiling the case which was appealed.” (§ 1238, subd. (b), italics added.)

People v. Rawlings (1974) 42 Cal.App.3d 952, to the extent it is
inconsistent with this conclusion, is disapproved.

Nevertheless, defendant argues that the prosecution should not have been
able to “force” a dismissal to obtain review of the pretrial ruling here because that
ruling was merely tentative and did not affect the prosecution’s case-in-chief. As
we shall explain below, the ruling was not tentative. It was a final decision to
recognize a novel defense. As to the ruling’s impact, the prosecution must
evaluate the effect of the ruling on its ability to succeed at trial. Faced with an
adverse ruling, the prosecution has two choices: (1) accept the ruling and proceed
to trial knowing that, once jeopardy has attached, an adverse ruling may never be
appealed; or (2) accept a dismissal and appeal the ruling, knowing that if the ruling
is upheld on appeal the case will never go to trial. Either choice entails significant
risk. When the People determine they cannot proceed, the trial court may permit
the People’s election of remedies by dismissing the case.8 “The Legislature has
given the trial court the power to dismiss under the broad standard of justice[,]
[citation] and there would be no reason to further detain or harass the defendant by
insisting the case continue in some form of vacuum when the People are unable to
continue.” (People v. Dewberry, supra, 40 Cal.App. 3d at p. 185.)
Here, on appeal of the dismissal under section 1238(a)(8), the Court of
Appeal properly considered the merits of a ruling permitting the assertion of a
novel defense.
B. Propriety of Recognizing the Defense of Entrapment by Estoppel
1. Background
In a pretrial memorandum, defendant argued, “As demonstrated at the
preliminary hearing, Mrs. Chacon relied upon the legal advice and actions of the

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.

Bell Garden’s [sic] City Attorney when she entered into that employment contract
[as city manager.]”
At oral argument, defense counsel requested immunity for City Attorney
Beltran by making an offer of proof as to what Beltran “could say” at trial.
Defense counsel recounted Beltran’s anticipated testimony as follows: “. . . I was
asked whether this waiting period was essential under state law, or whether we
could adopt the ordinance that we finally adopted. I ordered my subordinate . . . to
do a memo on that. I took that memo . . . and drafted a statute. I put that statute
on the agenda. I had the council vote on it. I was there to explain anything they
wanted. . . . [A]s I drafted the statute and as I said in the statute, the waiting
period was not required by state law.9 And if we got rid of the waiting period, we
would be in accordance with state law. I checked with other municipalities. They
didn’t have a waiting period. I put it on the agenda for a first reading. After it was
put on for first reading, we had a waiting period. It was put on for a second
reading. There were comments. I spoke to Mrs. Chacon about whether or not this
statute was a legal statute, and her actions, if she became city manager or any
council member became city manager, whether that would be legal. I authorized
that as yes, it would be in compliance with state law. And actions were taken with
regard to my advice.” (Italics added.) “I, then, on December 7th, I placed on the
agenda the appointment of Mrs. Chacon to be . . . City Manager. I always do that.
I asked Mr. Aceituno to see what she wanted as far as salary. I was in a closed
session with the rest of the council members talking about the legality of a city
councilman becoming city manager, about the terms and contracts of employment,
about what the requirements were for city manager.” According to the defense
offer of proof, Beltran relayed the council’s salary offer and contract terms to

The People do not dispute that elimination of the one-year waiting period
was lawful.

defendant and drafted the employment contract.
Defense counsel also said Beltran would testify: “I urged Mrs. Chacon to
become city manager. I thought she would be a good city manager. I thought it
would be good for the city of Bell Gardens, and I prevailed upon her to sign the
contract and give it a try. I told her that if she became city manager, that was an
automatic resignation from the city council, and I never gave any indication that
there was anything improper about this entire situation.” (Italics added.) Defense
counsel advised the trial court that witnesses other than Beltran could provide
some, but not all of this information.
2. Entrapment by estoppel
Entrapment by estoppel, based on principles of federal due process, has
been recognized by the federal courts and in some sister states. The defense
evolved from three United States Supreme Court opinions, although none used the
term “entrapment by estoppel.” The concept was first applied in Raley v. Ohio
(1959) 360 U.S. 423. Defendants there were convicted of contempt for refusing to
answer questions before Ohio’s Un-American Activities Commission. The
defendants had invoked their privilege against self-incrimination after being
advised of their right to do so by the commission chairman. (Id. at pp. 424-425.)
The advice, however, was contrary to the Ohio immunity statute, which eliminated
the availability of the privilege for persons testifying before legislative
committees. (Id. at p. 431.) The United States Supreme Court held that the
contempt convictions violated due process: “After the Commission, speaking for
the State, acted as it did, to sustain the Ohio Supreme Court’s judgment would be
to sanction an indefensible sort of entrapment by the State―convicting a citizen
for exercising a privilege which the State had clearly told him was available to
him.” (Id. at pp. 425-426.)
Cox v. Louisiana, the Supreme Court applied Raley to reverse the
convictions of protestors arrested for picketing across the street from a courthouse.
The leader of the demonstration had been given permission by the police chief to
demonstrate at the location. The demonstrators were nevertheless arrested and
convicted under a state statute barring certain demonstrations “near” any
courthouse. (Cox v. Louisiana, supra, 379 U.S. at pp. 568-571.) In reversing the
convictions, the Supreme Court observed: “[T]he highest police officials of the
city, in the presence of the Sheriff and Mayor, in effect, told the demonstrators that
they could meet where they did . . . . In effect, appellant was advised that a
demonstration at the place it was held would not be one ‘near’ the courthouse
within the terms of the statute.” (Id. at p. 571.) “The Due Process Clause does not
permit convictions to be obtained under such circumstances.” (Ibid.)
United States v. Pennsylvania Chem. Corp. (1973) 411 U.S. 655, the
court considered the defense in a regulatory setting involving a corporate
defendant found to have discharged refuse into navigable waters. The Supreme
Court, relying on Raley and Cox, held the defendant should have been allowed to
present a defense that it had been misled by administrative regulations which
appeared to permit the defendant’s actions. (Id. at pp. 670-675.)
Federal cases applying the entrapment by estoppel defense, while varying
slightly in their formulation, rest on the premise that the government may not
actively provide assurances that conduct is lawful, then prosecute those who act in
reasonable reliance on those assurances.10 Under these limited circumstances,

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

(footnote continued on next page)

fundamental fairness supports the defense, even when the prosecution can prove
each element of the crime.
Courts have cautioned that the defense is narrowly circumscribed. (See
e.g., U.S. v. Spires (5th Cir. 1996) 79 F.3d 464, 466.) [“The defense is a narrow
exception to the general rule that ignorance of the law is no excuse . . . .”]; U.S. v.
Corso (2nd Cir. 1994) 20 F.3d 521, 528 [“Judicial decisions indicate great caution
should be exercised when it comes to the application of the defense”]; U.S. v.
Howell (7th Cir. 1994) 37 F.3d 1197, 1204 [“Entrapment by estoppel . . . is a
defense that is rarely available”]; U.S. v. Smith (1st Cir. 1991) 940 F.2d 710, 714
[entrapment by estoppel is “recognized as applicable under certain, relatively
narrow, circumstances”].)

Contrary to defendant’s assertion, the trial court’s recognition of the
entrapment by estoppel defense and its concomitant refusal to exclude supporting
evidence was not tentative. Under the court’s ruling, of course, defendant was
then required to present sufficient evidence to support the defense she was allowed
to interpose.11 Regardless of whether she succeeded in this effort, however, the

(footnote continued from previous page)
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
Defendant’s proposed jury instruction stated: “Entrapment by Estoppel
occurs when a government official such as the City Attorney of Bell Gardens, acts

(footnote continued on next page)

trial court had made a final legal ruling that the defense was available and,
therefore, evidence of Beltran’s advice was admissible.
We assume, as do the parties, that defendant would have produced evidence
consistent with the offer of proof described above. Under these facts, the defense
of entrapment by estoppel is not available as a matter of law.
We also assume, but do not decide, that defendant’s conduct would fall
within the proscription of Government Code section 1090. (See ante, p.1, fn.1) A
contract made in violation of that section may be voided by any party except the
financially interested official. (Gov. Code, § 1092.) To incur criminal liability, an
official must act both willfully and knowingly. (Govt. Code, § 1097; People v.
Honig (1996) 48 Cal.App.4th 289, 333-336.) An official who purposefully makes
the prohibited contract acts “wilfully.” (Honig at p. 334.) To act “knowingly” the
official must be aware “there is a reasonable likelihood that the contract may result
in a personal financial benefit to him.” (Id. at p. 338.) An official is not required
to know that his conduct is unlawful. (Id. at pp. 336-337.) Therefore, reliance on
advice of counsel as to the lawfulness of the conduct is irrelevant.
Nevertheless, defendant argues that she is entitled to assert the defense of
entrapment by estoppel because City Attorney Beltran is a government lawyer,
authorized to advise the city council on legal matters.12 Defendant’s attempt to

(footnote continued from previous page)
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.”
Government Code section 41801 provides: “The city attorney shall advise
the city officials in all legal matters pertaining to city business.”

rely on existing authority fails. Unlike those charged in Cox v. Louisiana, supra,
379 U.S. 559 and Raley v. Ohio, supra, 360 U.S. 423 559, defendant was not an
ordinary citizen confronting the power of the state. Defendant was a member of
the executive branch of government. A public office is a position held for the
benefit of the people; defendant was obligated to discharge her responsibilities
with integrity and fidelity. (City of Imperial Beach v. Bailey (1980) 103
Cal.App.3d 191, 197.) The law in question regulates the very manner in which
defendant was empowered to exercise her governmental authority. “For over a
hundred years our courts have consistently held that that our conflict-of-interest
statute, now embodied in [Government Code] section 1090, is intended to enforce
the government’s right to the absolute, undivided, uncompromised allegiance of
public officials by proscribing any personal interest.” (People v. Honig, supra, 48
Cal.App.4th at pp. 324-325.) “In our society, people of ordinary sensibility should
recognize, without the intervention of a criminal proscription, that a public official
is a trustee and that it is wrong for such a trustee to engage in self-dealing,
including the contingent feathering of one’s own nest.” (Id. at p. 338, italics
For these reasons, we are reluctant to extend the defense to public officials
who seek to defend conflict of interest accusations by claiming reliance on the
advice of public attorneys charged with counseling them and advocating on their
behalf. Recognizing entrapment by estoppel in such circumstances is antithetical
to the strong public policy of strict enforcement of conflict of interest statutes and
the attendant personal responsibility demanded of our officials.
The defense is particularly inappropriate here. Bell Gardens is a general
law city, in which the city attorney is a subordinate officer of the city council,
appointed by and serving at its pleasure.13 An official cannot escape liability for
conflict of interest violations by claiming to have been misinformed by an
employee serving at her pleasure. If permitted to rely on the defense of
entrapment by estoppel, such an official could insulate herself from prosecution by
influencing an appointee to provide the advice she seeks. The appointee would be
forced to choose between two masters: the official in whose hands his continued
employment rests and the public that both are sworn to serve. Obviously, this
circumstance is not in the public interest.14
Additional policy considerations also support our conclusion. City
Attorney Beltran is authorized to give legal advice to the city council on matters
related to city business. He is not similarly situated to those public officials whose
actions have been found to bind the state. In Cox v. Louisiana, supra, 379 U.S. at
page 568, the police chief was charged with administering and enforcing the

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.)
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

(footnote continued on next page)

statute at issue, and in United States v. Pennsylvania Chem. Corp., supra, 411 U.S.
at page 674, the Army Corp of Engineers was the administrative agency
promulgating regulations “as to the meaning and requirements of the statute.” In
Raley v. Ohio, supra, 360 U.S. at page 437, the commission chairman conducting
the hearing “clearly appeared to be the agent of the State.” Legal advice regarding
the application of a statute must be distinguished from the authority to bind the
government. Any lawyer may be asked to provide an opinion as to the meaning of
a statute. However, only certain government authorities are empowered to
administer or enforce particular statutes. Officials like the police chief or the
commission chairman are designated to apply and implement the law in question.
This specific authority is quite different from the general role of any lawyer to
provide a client with a legal interpretation.
The city attorney offering an interpretation of Government Code section
1090 to councilmembers in the course of his daily responsibilities acts simply as a
lawyer advising a client. Government Code section 1090 applies statewide to
“[m]embers of the Legislature, state, county, district, judicial district, and city
officers or employees.” City Attorney Beltran’s clients are the officials of Bell
Gardens. Section 1090 is one of the myriad of state statutes he and other city
attorneys must advise upon in the course of their daily responsibilities. Beltran is
not authorized to criminally enforce or administer this law.15

(footnote continued from previous page)
counsel case.” (Ibid.) Instead, the Hedges court based its analysis on the express
role of this military ethics officer.
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

(footnote continued on next page)

Private attorneys interpret and advise their clients on the application of
statutes under all kinds of circumstances. Yet the average citizen cannot rely on a
private lawyer’s erroneous advice as a defense to a general intent crime. (See
People v. Vineberg (1981) 125 Cal.App.3d 127, 137; People v. Aresen (1949) 91
Cal.App.2d 26, 35; People v. McCalla (1923) 63 Cal.App. 783, 793.) “The
defense of action taken in good faith, in reliance upon the advice of a reputable
attorney that it was lawful, has long been rejected. The theory is that this would
place the advice of counsel above the law and would place a premium on
counsel’s ignorance or indifference to the law.” (1 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Defenses, § 38, p. 369, and cases cited therein.)
Defendant cannot evade that rule by asserting the attorney who mistakenly advised
her happened to hold a governmental position.
We express no view as to whether defendant’s conduct violated
Government Code section 1090. We hold only that the defense of entrapment by
estoppel is not available under the offer of proof contained in this record.

(footnote continued from previous page)
not prosecute misdemeanors. The power to prosecute felonies, such as those
charged against defendant, is retained by the district attorney.

For the foregoing reasons, we affirm the judgment of the Court of Appeal.


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chacon

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 1117 Cal.App.4th 961
Rehearing Granted


Opinion No.

Date Filed: February 8, 2007


County: Los Angeles
Judge: Michael M. Johnson


Attorneys for Appellant:

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


Attorneys for Respondent:

Nasatir, Hirsch, Podberesky & Genego, Michael D. Nasatir, 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.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Phyllis C. Asayama
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5916

Michael D. Nasatir
Nasatir, Hirsch, Podberesky & Genego
2115 Main Street
Santa Monica, CA 90405
(310) 399-3259

Opinion Information
Date:Docket Number:
Thu, 02/08/2007S125236

1Chacon, Maria Socorro (Defendant and Respondent)
Represented by Michael D. Nasatir
Nasatir & Hirsch
2115 Main Street
Santa Monica, CA

2Chacon, Maria Socorro (Defendant and Respondent)
Represented by John Louis Ryan
c/o Law Offices of Dennis A. Fischer
1448 Fifteenth Street, Suite 206
Santa Monica, CA

3The People (Plaintiff and Appellant)
Represented by Phyllis Chiemi Asayama
Los Angeles County District Attorney's Office
320 W. Temple Street, Suite 540
Los Angeles, CA

4The People (Plaintiff and Appellant)
Represented by Pamela C. Hamanaka
Office of the Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA

5Los Angles County Public Defender (Amicus curiae)
Represented by John Hamilton Scott
Office of the Public Defender
320 W. Temple Street, Suite 590
Los Angeles, CA

Feb 8 2007Opinion: Affirmed

Jun 1 2004Petition for review filed
  counsel for resp Maria Socorro Chacon
Jun 1 2004Record requested
Jun 2 2004Received Court of Appeal record
Jul 21 2004Time extended to grant or deny review
  to and including August 30, 2004.
Aug 11 2004Petition for review granted (criminal case)
  The issues to be briefed and argued are specified as follows: (1) When the trial court denies the prosecution's pretrial motion to exclude evidence relevant to a defense, and consequently the prosecution asserts that it is unable to proceed to trial and obtains dismissal of the action pursuant to Penal Code section 1385, do the People have a right to appeal from the dismissal order? (2) In what circumstances may a pretrial evidentiary ruling properly justify a discretionary dismissal in the furtherance of justice pursuant to Penal Code section 1385, subdivision (a), and what factors should a trial court consider in exercising its discretion? (3) In any appeal from a pretrial order of dismissal pursuant to Penal Code section 1385, when, if ever, are the merits of evidentiary rulings preceding the order of dismissal reviewable in that appeal? (4) Should California law recognize the defense of entrapment by estoppel, and if so, can this defense bar a criminal conviction when the defendant relies upon the advice of a city attorney regarding the legality of her actions under state law? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 10 2004Request for extension of time filed
  opening brief/merits to 10-11-04>>respondent Maria Socorro Chacon
Sep 10 2004Request for judicial notice filed (granted case)
  respondent Maria Socorro Chacon
Sep 22 2004Extension of time granted
  to and including October 11, 2004 for respondent to file opening brief on the merits. No further extensions will be granted.
Oct 8 2004Opening brief on the merits filed
  respondent Maria Socorro Chacon
Oct 8 2004Association of attorneys filed for:
  respondent Maria Chacon [atty Ryan]
Oct 8 2004Request for judicial notice filed (granted case)
  respondent Maria Chacon
Nov 4 2004Request for extension of time filed
  to file appellant's answer brief/merits asking to Dec., 7th.
Nov 10 2004Extension of time granted
  To December 7, 2004 to file appellant's answer brief on the merits. No further extensions will be granted.
Nov 23 2004Request for judicial notice filed (granted case)
  appellant People
Nov 23 2004Request for judicial notice filed (granted case)
  appellant People
Dec 3 2004Answer brief on the merits filed
  appellant People
Dec 22 2004Reply brief filed (case fully briefed)
Jan 14 2005Received application to file Amicus Curiae Brief
  Los Angeles County Public Defender [in support of resp]
Jan 24 2005Permission to file amicus curiae brief granted
  Los Angeles County Public Defender
Jan 24 2005Amicus curiae brief filed
  by Los Angeles County Public Defender in support of respondent. Answer due within 20 days.
Feb 14 2005Response to amicus curiae brief filed
  to ac brief of Los Angeles County Public Defender>> respondent Maria Socorro Chacon
Feb 14 2005Received:
  errata to opening & reply briefs/merits>>respondent Maria Socorro Chacon
Jul 20 2005Filed:
  Letter from counsel for respondent dated 7/18/05 informing the court of potential scheduling conflict and request that oral argument be scheduled for a date after Nov. 1, 2005.
May 31 2006Received:
  Legislative Intent Service binder re 1998 amendment to P.C. 1238(a)(8)
Aug 1 2006Received:
  Letter from Michael Nasatir, counsel for respondent Maria Chacon, advising of vacation plans and requesting that the case not be set for argument in October.
Nov 7 2006Case ordered on calendar
  Tuesday, December 5, 2006, at 2:00 p.m., in Los Angeles
Nov 27 2006Order filed
  respondent {Chacon} Supplemental Authorities and Exhibit [Two Legislative Hearing DVDs] In support of previously judicially noticed material Re: Statutes of 1998, Chapter 208
Nov 28 2006Request for judicial notice granted
  Appellant's requests for judicial notice filed on September 10, 2004, and October 8, 2004 are granted. Respondent's requests for judicial notice filed on November 23, 2004, are granted.
Nov 30 2006Order filed
  The order filed on November 28, 2006, is amended to read, in its entirety; Respondent's requests for judicial notice filed on September 10, 2004, and October 8, 2004, are granted. Appellant's requests for judicial notice filed on November 23, 2004, is granted.
Dec 5 2006Cause argued and submitted
Feb 7 2007Notice of forthcoming opinion posted
Feb 8 2007Opinion filed: Judgment affirmed in full
  Majority Opinion by Corrigan, J. joined by George C.J., Baxter J., Kennard J., Chin J., Werdegar J., and Moreno J.
Feb 22 2007Rehearing petition filed
  Respondent Maria Socorro Chacon Attorneys Michael D. Nasatir and John L. Ryan
Feb 26 2007Time extended to consider modification or rehearing
  to and including April 27, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Mar 28 2007Rehearing denied
Apr 4 2007Remittitur issued (criminal case)
  case final
Apr 16 2007Received:
  Receipt for Remittitur from the Court of Appeal, Second Appellate District, Division Four

Oct 8 2004Opening brief on the merits filed
Dec 3 2004Answer brief on the merits filed
Dec 22 2004Reply brief filed (case fully briefed)
Jan 24 2005Amicus curiae brief filed
Feb 14 2005Response to amicus curiae brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website