1

Filed 3/4/22 P. v. Wessman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

v.

JOHN WESSMAN,

Defendant and Respondent.

E076327

(Super.Ct.No. INF1901460)

OPINION

APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. 

Reversed.

Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District 

Attorney, for Plaintiff and Appellant.

Keker, Van Next & Peters, Elliot R. Peters, Steven A. Hirsch, Steven P. Ragland, 

Patrick E. Murray; Rodney Lee Soda, Rodney Lee Soda and David Greenberg for 

Defendant and Respondent.
2

I. INTRODUCTION

Defendant and respondent John Wessman was a prominent real estate developer in 

the City of Palm Springs (the City). Codefendant Richard Meaney (Meaney) was a 

business associate of defendant and codefendant Stephen Pougnet (Pougnet), who served 

as the City’s mayor from 2007 until 2015. In February 2017, the People filed a criminal 

complaint against all three individuals and, in August 2019, a grand jury returned a 30-

count indictment against them. The indictment charged defendant with nine counts of 

bribery (Pen. Code,

1 § 67, counts 2, 4, 6, 8, 10, 12, 14, 16, & 18) and one count of 

conspiracy to commit bribery (§ 182, subd. (a), count 30).

On December 4, 2020, the trial court granted defendant’s motion to set aside the 

indictment pursuant to section 995, and dismissed all counts against defendant on the 

basis that the evidence was not sufficient to sustain the indictment.

2

 The People appeal 

from this order. Based upon our independent review of the record, we conclude the 

evidence before the grand jury was sufficient to support the indictment and that the 

alternative grounds for affirmance of the order suggested by defendant are not supported 

by the record. Accordingly, we reverse the order granting defendant’s motion to set aside 

the indictment.

1

 Undesignated statutory references are to the Penal Code.

2 The trial court denied similar motions brought by Meaney and Pougnet, and 

they are not parties to this appeal.
3

II. FACTS & PROCEDURAL HISTORY

A. Summary of Relevant Evidence Before the Grand Jury3

1. Testimony of City Manager

The city manager testified that defendant was a well-known real estate developer 

in the City. One of defendant’s largest projects was the downtown project, which 

involved the complete redevelopment of an abandoned shopping mall considered a blight 

on the City’s tourism economy (Downtown Project). The Downtown Project had been a 

high priority among city council members for years, and the City had considered multiple 

actions to spur redevelopment of the property, including the use of eminent domain. 

Ultimately, the City entered into a public-private partnership with defendant’s company,

in which the City would contribute $50 million to the redevelopment, while defendant’s 

company would contribute $200 million.

The city council established a subcommittee specifically for the purpose of 

managing the Downtown Project, of which Pougnet was a member. The subcommittee 

would meet regularly with defendant’s company; was responsible for resolving numerous 

issues related to the construction, aesthetics, and management of the Downtown Project; 

and would reserve only the largest decisions to be made by the full city council. The city

3

 Because the grand jury proceedings involved the investigation of multiple 

individuals, and the indictment included charges against Pougnet, in addition to the 

bribery allegations against defendant, we summarize only the evidence related to the 

counts alleged against defendant.
4

manager believed Pougnet would not have been eligible to serve on this subcommittee, if 

it had been known that Pougnet had a financial relationship with defendant.

In addition to the Downtown Project, the city manager confirmed that between 

2012 and 2014, defendant also had other development projects subject to approval or 

review by the city council, including hotel operations agreements; a housing development 

project (Pedregal Project); and the development of a gated community (Dakota Project). 

Pougnet did not recuse himself from the city council’s decisions involving any of these 

developments, although many of these votes were unanimous and in accordance with 

recommendations by city staff. With respect to the Pedregal Project, Pougnet’s vote was 

a decisive vote in obtaining an outcome more favorable to defendant.

2. Testimony of Director of Community and Economic Development

The former director of community and economic development for the City 

testified that defendant was the largest locally based developer in the City. Defendant’s 

company acquired a mostly abandoned shopping mall in the City’s downtown area in 

2001, but struggled to redevelop the property for many years. During this time, Pougnet 

was opposed to defendant’s vision for redeveloping the property, and he was an active 

proponent of using eminent domain to take possession of the property. In 2010, the city 

council authorized taking the initial steps needed to begin an eminent domain action and 

hired an independent firm to develop an alternative plan for the property’s 

redevelopment. However, after consulting with hundreds of community members, the 

plan ultimately developed was very similar to the plans originally proposed by defendant 
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and, as a result, the City decided to pursue redevelopment through a public-private 

partnership with defendant.

The director also recalled that Pougnet was a deciding vote on a proposal by 

defendant related to the Pedregal Project. A prior developer had obtained approval for 

the project, performed some preliminary work, but lost the property in foreclosure. 

Defendant had purchased the property and proposed the city council enforce or transfer 

the prior developer’s completion bond to fund completion of infrastructure related to the 

project. The director believed such a request was unusual in situations in which a 

subsequent developer assumes a project with the intent to complete it. Defendant’s 

request was ultimately approved in 2012 by a vote of 3 to 2 by the city council, with 

Pougnet voting in the majority, resulting in a financial “windfall” to defendant.

3. Testimony of City Council Members

C.M. testified he was a member of the city council from 2001 through 2017. He 

served alongside Pougnet on the City’s subcommittee for the Downtown Project. C.M. 

explained that the public-private partnership for the Downtown Project involved an 

agreement by the City to purchase all of the land dedicated to streets and parking from 

defendant. However, the money paid would only be used to fund other aspects of the 

redevelopment subject to the City’s ongoing approval. C.M. also recalled the vote on the 

Pedregal Project and expressed the view that defendant’s request for the City to call or 

transfer a prior developer’s completion bond was unfair, outside the general practice of 

the City, and represented a significant financial advantage of at least $1,000,000 to 

defendant.
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G.F. testified she was a member of the city council from 2003 to 2017. With 

respect to the Downtown Project, the city council established a subcommittee that 

handled the details of the redevelopment. Subcommittee meetings that involved 

negotiation of terms and conditions of the Downtown Project were not open to the public 

or to the press. One of the subcommittee members would regularly report matters back to 

the city council, but the city council rarely changed any of the decisions negotiated, and 

agreed to, by the subcommittee.

P.L. testified that he also served as a city council member from 2011 through 

2015. He recalled that shortly after being elected, Pougnet arranged for P.L. to meet with 

Meaney and asked P.L. to “ ‘listen’ ” to what Meaney had to say. Meaney discussed the 

issue of public improvement bonds in relation to an upcoming vote regarding the 

Pedregal Project. P.L. understood the project was being developed by defendant and was 

uncertain why Meaney was speaking to him about the project. P.L. did not recall ever 

personally meeting with defendant.

4. Testimony of H.M.

H.M. testified that he owned an advertising company, was the chairman of the 

Palm Springs International Film Festival (PSIFF), and was involved with various other 

social organizations in the City. In 2011, he attended a regular meeting of organizers 

advocating for the passage of a city sales tax that had been submitted to voters for 

approval. There were about 20 people present, including defendant and Pougnet. Instead 

of discussing advocacy of the tax proposal, Pougnet unexpectedly announced to everyone 

in attendance that he could not run for reelection unless he obtained a job in the 
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community. The meeting then turned into a discussion regarding how Pougnet could be 

convinced to run for reelection.

In response, the PSIFF offered Pougnet a job as a fundraising consultant to be paid 

$150,000 annually, or $12,500 per month, and first paid Pougnet in January 2012. 

According to H.M., Pougnet was credited with subsequently bringing in many large 

donors this first year. However, the contract was contingent on Pougnet bringing in more 

donations than his salary; there was a drop off in fundraising activity associated with 

Pougnet after his first year; and the PSIFF subsequently cut Pougnet’s annual salary to 

$75,000 in the subsequent years.

H.M. confirmed that defendant was a founding donor to the PSIFF and served on 

the PSIFF’s board the entire time the PSIFF employed Pougnet. H.M. also confirmed the 

PSIFF had received a donation of $75,000 from defendant but, for reasons unknown to 

him, had to return that donation in May 2012.

5. E-mail Evidence

A special agent with the Federal Bureau of Investigation (FBI) testified that she 

reviewed multiple e-mails as part of the investigation of Pougnet.

In May 2011, Meaney sent an e-mail to Pougnet, stating: “Meeting with John on 

Tuesday. They have spok[en] to Harold. I believe everything is in place. The big 

question from everyone, including Curt, is what are your plans? . . . Hard to nail 

everyone down when you’re leaving your options open. When are you going to commit 

to something?” In response, Pougnet sent an e-mail stating: “I need to know that an 

offer is very real, that I am an employee somewhere that has a letter ‘of employment.’ 
8

That will make a decision much easier to make.” In response, Meaney sent an e-mail 

asking: “If it is 220 annually, will you commit?” Pougnet countered with: “$225,000. 

When I know exactly what it is, I will sit down with [my husband], and we will make a 

decision.” The agent expressed the belief that “John” referred to defendant and “Harold” 

referred to H.M., given the discussion about Pougnet’s need to make a decision in 

relation to the prospect of employment.

In a second set of e-mails exchanged in June 2012, Meaney, defendant, and 

another executive in defendant’s company discussed the bankruptcy of the developer who 

owned the Pedregal Project, acquisition of the property in foreclosure, and anticipated 

votes by the city council related to the project.

6. Testimony of District Attorney Investigator

An investigator with the Riverside County District Attorney’s Office testified that 

he was involved with an investigation of Pougnet. The investigation was initiated in 

response to allegations of conflicts of interest involving Pougnet made by political 

activists and local media. Based upon his public disclosure forms, Pougnent reported 

receiving no income other than his mayoral salary in 2010 and 2011. However, 

beginning in 2012, Pougnet reported receiving a significant amount of money from 

PSIFF, a company owned by S.M., and later a different company owned by Meaney.

In October 2016, the investigator obtained a search warrant for review of 

Pougnet’s bank account information. Over the course of the next five months, the 

investigator obtained additional search warrants for financial records related to 

individuals and transactions based upon his review of Pougnet’s bank records. These 
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records included those of defendant, defendant’s businesses, Meaney, Meaney’s business,

and other third parties. Based upon his review of these records, the investigator noted 

several transactions he found suspicious.

In September 2012, within a span of 10 days, the following transactions occurred: 

a company owned by S.M. issued a check to Pougnet, a company owned by Meaney

issued a check to S.M.’s company, Meaney invoiced defendant’s company for consulting 

work, and defendant’s company paid Meaney’s invoice. In November 2012, a similar 

sequence of events occurred: Meaney’s company issued a check to S.M.’s company, 

S.M.’s company issued a check to Pougnet the following day, Meaney invoiced 

defendant’s company for consulting work one day later, and defendant paid Meaney’s 

invoice a few days after that invoice. In December 2012, a similar set of events occurred 

again: Meaney invoiced defendant’s company, defendant paid the invoice the next day, 

Meaney wrote a check to S.M.’s wife the same day that he was paid by defendant, and 

Pougnet received a check from S.M.’s company the following day. While the specific 

amounts transferred in each transaction differed, the transactions taken as a whole 

amounted to exactly $75,000 transferred from defendant’s company to Meaney’s 

company; $75,000 transferred from Meaney’s company to S.M.; and $75,000 transferred 

from S.M.’s company to Pougnet.

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4

 The investigator also noted that the $75,000, when combined with Pougnet’s 

new salary with the Film Festival, would have amounted to $225,000—the amount 

Pougnet suggested would be sufficient to convince him to run for reelection in 2011.
10

In 2013, the following transactions occurred: a payment of $100,000 from 

defendant to Meaney’s company in May 2013, a payment of $75,000 from Meaney’s 

company directly to Pougnet a few days later, and a second payment of $25,000 from 

Meaney’s company directly to Pougnet five months later. In November 2013, Meaneys’ 

company issued a third payment directly to Pougnet for $50,000 and, a few days later, 

defendant’s company paid Meaney’s company $50,000. Again, the investigator noted 

that, when viewed together, the transactions showed that in the year 2013, exactly 

$150,000 had been transferred from defendant to Meaney’s company, and that Meaney’s 

company transferred exactly $150,000 to Pougnet.

In 2014, the following transactions occurred: between January and March, 

defendant signed three checks to Meaney’s company totaling $63,650.09 and, on the 

same date that the last of these checks was issued, Meaney’s company issued a check to 

Pougnet for $60,000. In April 2014, Meaney’s company issued a check to Pougnet for 

$15,000 and, a few days later, defendant signed two checks to Meaney’s company 

totaling $17,719. Finally, in September 2014, defendant signed a check to Meaney’s 

company for $225,000. That same day, Meaney transferred $150,000 to an account for a 

joint business venture he had with defendant and wrote a check to Pougnet for $75,000.

Finally, the investigator identified at least 13 instances in which Pougnet voted to 

support projects that benefitted defendant or Meaney while Pougnet was serving on the 

city council in 2012, 2013, and 2014. According to the investigator, given the financial 

relationship indicated in the bank records for these individuals, these were instances in 

which Pougnet should have recused himself.
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7. Testimony of S.M. 

S.M. testified he has been in the real estate business for more than 25 years and 

developed both a business and social relationship with Meaney. In 2012, Meaney asked 

S.M. to facilitate several payments to Pougnet as a favor. Meaney wrote three checks to 

S.M.’s company and in turn, S.M. caused three checks totaling the same amount to be 

written to Pougnet. S.M. acknowledged the money was not intended as an official 

campaign donation and described himself as a “middle man” to simply facilitate the 

transfer of money to Pougnet. S.M. never spoke with Pougnet about the payments and 

did not expect Pougnet to provide any services in exchange for the payments. S.M.’s 

company simply provided a tax form to Pougnet corresponding with each payment. S.M. 

recalled that Meaney specifically asked the checks to Pougnet be written through S.M.’s 

company.

B. Indictment and Section 995 Motion

On August 15, 2019, the grand jury returned an indictment against defendant, 

Meaney and Pougnet. The indictment accused defendant of nine counts of offering a 

bribe (§ 67, counts 2, 4, 6, 8, 10, 12, 14, 16, 18). The counts arose out of the nine total 

payments to Pougnet in 2012, 2013, and 2014. The indictment also accused defendant of 

one count of conspiracy to commit bribery (§ 182, subd. (a), count 30). Finally, the 

indictment alleged that the statute of limitations was tolled because the offenses could not 

have been reasonably discovered earlier as a result of Pougnet’s false statements in his 

public disclosure forms.
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On November 13, 2019, defendant filed a motion to set aside the indictment 

pursuant to section 995. On December 4, 2020, the trial court granted defendant’s 

motion, concluding there was insufficient evidence to sustain the allegations in the 

indictment against defendant. The People appeal from this order.

III. DISCUSSION

A. The Evidence Was Sufficient To Support the Indictment

On appeal, the People contend the trial court erred in concluding there was 

insufficient evidence to support the grand jury’s indictment of defendant on nine counts 

of bribery and one count of conspiracy to commit bribery. Upon our independent review 

of the record, we believe the evidence was sufficient to provide probable cause for the 

indictment and, as such, the trial court erred in granting defendant’s section 995 motion 

based upon the insufficiency of the evidence.

1. General Legal Principles and Standard of Review

“The role of the grand jury in an indictment proceeding is to ‘determine whether 

probable cause exists to accuse a defendant of a particular crime.’ [Citation.] Probable 

cause ‘ “ ‘means such a state of facts as would lead a man of ordinary caution or 

prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the 

accused.’ ” ’ [Citations.] The grand jury serves as the functional equivalent of a 

magistrate who presides over a preliminary examination on a felony complaint. ‘Like the 

magistrate, the grand jury must determine whether sufficient evidence has been presented 

to support holding a defendant to answer on a criminal complaint.’ ” (Stark v. Superior 

Court (2011) 52 Cal.4th 368, 406 (Stark).)
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“In a section 995 proceeding, the trial court may set aside the indictment only if 

the grand jury acted ‘without reasonable or probable cause.’ ” (People v. Pic’l (1982) 

31 Cal.3d 731, 737.) This is the same standard applied to the review of a magistrate’s 

determination at a preliminary hearing. (Munoz v. Superior Court (2020) 45 Cal.App.5th 

774, 778-779.) It is “ ‘an “exceedingly low” standard.’ ” (Id. at p. 779.) “To establish 

probable cause sufficient to overcome a section 995 motion, ‘the People must make some 

showing as to the existence of each element of the charged offense.’ [Citation.] 

‘Evidence that will justify a prosecution need not be sufficient to support a conviction.’ ” 

(People v. Scully (2021) 11 Cal.5th 542, 582 (Scully).)5

5

 On more than one occasion, defendant implies that probable cause does not exist 

where the evidence may be equally susceptible to innocent explanations, citing to 

Malleck v. Superior Court of San Francisco (1956) 142 Cal.App.2d 396, 399. In that 

case, the Court of Appeal held that evidence was insufficient to support an indictment 

where “it is still as probable that the petitioner did not commit the crime as that he did,”

relying solely on the generic definition of the term “ ‘probable’ ” as meaning “having 

more evidence for than against.” (Ibid.) However, we have found no California 

published decisions that have cited to Malleck for this definition of probable cause. Nor 

does this definition appear consistent with the definition widely recognized today.

As numerous California authorities have recognized, the standard test of 

reasonable or probable cause to support an indictment is the same as that used in 

considering the issuance of a search warrant, an arrest without a warrant, and a 

commitment by a magistrate. (People v. Aday (1964) 226 Cal.App.2d 520, 532-533;

People v. Pease (1966) 242 Cal.App.2d 442, 445-446.) And in these other contexts, the 

California Supreme Court has repeatedly affirmed that the possibility of an innocent 

explanation does not vitiate probable cause. (People v. Souza (1994) 9 Cal.4th 224, 233 

[finding probable cause for warrantless detention and explaining, “[a] different result is 

not warranted merely because circumstances known to an officer may also be 

‘ “consistent with lawful activity” ’ ”]; People v. Brown (2015) 61 Cal.4th 968, 985-986 

[“ ‘ “[T]he possibility of an innocent explanation does not deprive the officer of the 

capacity to entertain a reasonable suspicion of criminal conduct.” ’ ”].) In the context of 
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“ ‘When we review a section 995 motion, we “disregard[] the ruling of the 

superior court and directly review[] the determination of the magistrate.” ’ ” (Zemek v. 

Superior Court (2020) 44 Cal.App.5th 535, 544-545; People v. Superior Court (Costa) 

(2010) 183 Cal.App.4th 690, 699.) A reviewing court considers the evidence in the light 

most favorable to the indictment (People v. Manson (1976) 61 Cal.App.3d 102, 167; 

People v. Guzman (2011) 201 Cal.App.4th 1090, 1096); it does not “substitute its 

judgment as to the weight of the evidence for that of the grand jury, and must draw all 

reasonable inferences in favor of the indictment” (Stark, supra, 52 Cal.4th 368 at pp. 406-

407). A reviewing court will not set aside an indictment “ ‘ “if there is some rational 

ground for assuming the possibility that an offense has been committed and the accused 

is guilty of it.” ’ ” (Scully, supra, 11 Cal.5th at p. 582; Zemek, at pp. 544-545.)

2. The Evidence Was Sufficient To Support the Grand Jury’s Indictment

Here, the indictment alleged nine counts of bribery in violation of section 67 

against defendant, with each count corresponding to specific, alleged payments to 

Pougnet in 2012, 2013, and 2014. It also alleged one count of conspiracy to commit 

a grand jury indictment, where the standard sufficient to support an indictment is met, the 

fact that there may also be an innocent explanation for defendant’s actions is not grounds 

for setting aside the indictment. The grand jury is not under any legal obligation to 

accept the innocent explanation. (People v. Kegley (1961) 198 Cal.App.2nd 501, 502.) 

Thus, it is now widely understood that a trial court may not dismiss an indictment based 

upon its own view of the relative weight to be afforded the evidence. (People v. Evans

(1959) 175 Cal.App.2d 274, 276 [“It is now well settled that on hearing a motion to 

dismiss . . . the Superior Court may not reweigh the evidence . . . .”]; Kegley, at p. 502 

[same].)
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bribery, listing the nine payments to Pougnet as overt acts in furtherance of the 

conspiracy.

Section 67 provides: “Every person who gives or offers any bribe to any 

executive officer in this state, with intent to influence him in respect to any act, decision, 

vote, opinion, or other proceeding as such officer, is punishable by imprisonment . . . .” 

Additionally, “[c]riminal conspiracy is an offense distinct from the actual commission of 

a criminal offense that is the object of the conspiracy.” (People v. Morante (1999) 

20 Cal.4th 403, 416.) It “requires proof that the defendant and another person had the 

specific intent to agree or conspire to commit an offense, as well as the specific intent to 

commit the elements of that offense, together with proof of the commission of an overt

act ‘by one or more of the parties to such agreement’ in furtherance of the conspiracy.” 

(Ibid.) Further, “an overt act” in furtherance of the agreement “ ‘need not amount to a 

criminal attempt and it need not be criminal in itself.’ ” (People v. Joseph (2021) 

63 Cal.App.5th 1058, 1066.)

Drawing all inferences in the light most favorable to the indictment, we believe the 

evidence here was sufficient to support the bribery and conspiracy charges. 

First, the evidence permitted the jury to infer that defendant was directly involved in 

funding payments to Pougnet. Defendant personally signed all of the checks alleged to 

constitute the source of the funds used to bribe Pougnet. The payments were made to 

various intermediary companies, but the owner of one of those companies testified that he

was simply used as a “middle man” to transfer money to Pougnet. While the amount of 

each payment made between intermediaries differed at times, the total amount disbursed 
16

by defendant matched the exact amount ultimately received by Pougnet in the years 2012 

and 2013, even though one of the intermediary companies ceased to be involved in 2013. 

We acknowledge it is possible that the identical sums are merely a matter of 

mathematical coincidence, but it is also clearly reasonable for the grand jury to infer that 

Pougnet was the intended recipient of the payments disbursed by defendant under these 

facts.

Further, while the amount disbursed by defendant to Meaney, and the amount 

ultimately received by Pougnet, differed significantly in 2014, the total sum disbursed by 

defendant was clearly sufficient to fund all of the payments ultimately received by 

Pougnet.

6

 Moreover, on at least one occasion, defendant wrote a check for $225,000 to 

Meaney and, on that same day, Meaney transferred $150,000 into the separate account of

a joint venture in which defendant was an investor, and then wrote a check to Pougnet for 

the remaining $75,000. Given the fact that the joint venture had its own account, there 

was no apparent reason for defendant to use Meaney as an intermediary to invest money 

into that venture. As such, at least one reasonable inference that can be drawn from his 

decision to do so is that the transfer of money to Meaney was intended to hide a payment 

to Pougnet.

Second, there was evidence that Pougnet was in a position to influence numerous 

official actions on behalf of defendant, as well as evidence that Pougnet failed to recuse 

6

 The testimony suggested defendant disbursed a total of $490,000 to Meaney and 

to Meaney’s company while Pougnet ultimately received $150,000 from Meaney’s 

company in 2014.
17

himself from decisions related to these actions. Multiple development projects by 

defendant’s company were subject to review and approval from the city council during 

this time period, and Pougnet did not recuse himself when voting on any of these matters. 

There was evidence that Pougnet assisted in lobbying other city councilmembers on 

issues that were beneficial to defendant, such as arranging for Meaney to meet with 

another councilmember to discuss a vote financially favorable to defendant. Even if we 

ignored the details surrounding this specific vote,

7

the evidence certainly gives rise to a 

reasonable inference that defendant was in a position, and was willing, to use his 

influence to lobby other city councilmembers into voting on matters in a manner 

favorable to defendant’s interests. Finally, Pougnet continued to serve as a member of 

the subcommittee charged with deciding most of the details related to the Downtown 

Project throughout the entire relevant time period. The testimony suggested that serving 

on this subcommittee placed Pougnet in an even more influential position to advance 

7

 Defendant contends that any payment in 2012 could not have been intended to 

influence Pougnet’s vote on the Pedregal Project because the vote was held in July 2012, 

and the alleged payments to Pougnet began two months after. The timing of Pougnet’s 

actual receipt of payments is not necessarily dispositive in this case. There was also 

evidence that prior to the vote on the Pedregal Project, defendant had made a donation of 

$75,000 to the PSIFF. By this time, Pougnet was employed by the PSIFF as a fundraiser, 

and Pougnet’s salary was expressly tied by contract to the amount of donations he could 

generate for the PSIFF. However, PSIFF returned defendant’s donation in May 2012 for 

reasons that remain undisclosed. Given that the amount of the returned donation again 

coincides with the exact amount ultimately received by Pougnet in 2012, the grand jury 

would have been entitled to infer that defendant initially attempted to use the PSIFF as an 

intermediary to transmit funds to defendant prior to the Pedregal vote, but when that 

proved unsuccessful, he had to resort to alternate intermediaries.
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defendant’s interests, and that Pougnet should have recused himself from serving, given 

his financial relationships.

Given this evidence, it would have been reasonable for a grand jury to infer that 

defendant caused money to be transferred to Pougnet for the purpose of influencing 

Pougnet in acts, votes, or opinions related to matters within Pougnet’s official duties. 

Further, because the evidence also showed that the payments made by defendant 

were always made to an intermediary, the same evidence would be sufficient to support 

an inference that defendant participated in a conspiracy with respect to the payments. We 

acknowledge that the evidence presented to the grand jury was largely circumstantial. 

Nevertheless, the evidence is not so lacking that a reasonable person could not be led to 

believe and conscientiously entertain a strong suspicion that defendant committed the 

alleged offenses. That is all that is required to avoid dismissal under section 995. It is 

plainly inferable from the evidence that there is some rational ground for assuming the 

possibility that the bribery and conspiracy offenses charged have been committed and the 

defendant is guilty of them. As such, it was error for the trial court to grant defendant’s 

section 995 motion.

3. Defendant’s Arguments Regarding the Insufficiency of the Evidence Are 

Unpersuasive

Defendant argues that the evidence before the grand jury in this case cannot 

support the indictment because (1) the evidence in this case is weaker than that found 

lacking in Dong Haw v. Superior Court of Sacramento County (1947) 81 Cal.App.2d 153 

(Dong Haw); (2) there was no evidence of defendant’s intent; and (3) the grand jury was 
19

“overwhelmed” with irrelevant evidence related to other individuals who were not 

subject to the allegations against defendant. As we explain below, we do not find any of 

these arguments sufficient grounds for setting aside the indictment.

a. Dong Haw is distinguishable

In Dong Haw, the Court of Appeal granted writ relief in favor of a defendant 

indicted on one count of conspiracy to commit bribery on the ground that insufficient 

evidence supported his indictment. (Dong Haw, supra, 81 Cal.App.2d at pp. 154, 160.) 

Defendant argues that the evidence in this case compels the same conclusion because it is 

weaker than that presented in Dong Haw. However, Dong Haw is clearly 

distinguishable. In that case, the evidence before the grand jury showed that the 

defendant’s son delivered a case of assorted liquor, money, and a letter to a city manager. 

(Id. at pp. 155-156) The letter was written by the defendant’s daughter and raised 

concerns over the fact that the city’s chief of police had closed a social club that rented 

space on the defendant’s property. (Id. at pp. 156-157.) The Court of Appeal found such 

evidence insufficient to support the indictment against the defendant, noting that his only 

connection with the alleged bribe was his familial relationship with the individuals 

actually alleged to have engaged in the acts constituting the bribe. (Id. at p. 158.)

While the Court of Appeal in Dong Haw did not suggest what additional evidence 

might have been sufficient to support an indictment, the California Supreme Court 

subsequently did so in Lorenson v. Superior Court of Los Angeles County (1950) 

35 Cal.2d 49 (Lorenson). In distinguishing Dong Haw, the high court stated: “[T]he 

only links connecting [the defendant] with the alleged conspiracy was his parental 
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relation to the other actors, his ownership of the building in which [the interested tenant]

was located, and ownership of a truck used to deliver some liquor. Other than as 

landlord, he had no connection with the club which was being closed . . . , and it 

affirmatively appeared that a letter bearing his name was not signed by him or with his 

knowledge or consent. There was no evidence, direct or circumstantial, tending to prove 

that [the defendant] had ever participated in the bribery, if that crime was committed, or 

from which it reasonably might be inferred that he was interested in obtaining any favor

from the police . . . .” (Id. at p. 58.) Thus, our Supreme Court implied that the two 

crucial pieces of evidence lacking in Dong Haw were (1) some direct involvement in an 

act alleged to constitute the bribe, and (2) evidence to suggest the defendant had an 

interest in obtaining favorable treatment from the official allegedly bribed.

As we have already explained, the grand jury in this case had both evidence of 

defendant’s direct involvement in the actions alleged to constitute the bribes and evidence 

of defendant’s interest in obtaining favorable treatment from Pougnet. There was direct 

evidence that defendant signed each of the checks alleged to have funded the payments to 

Pougnet and ample evidence that defendant had a direct financial interest in official 

matters subject to Pougnet’s influence, whether in his votes as a city councilmember or in 

his participation in the subcommittee overseeing the Downtown Project. Given this 

evidence, we disagree with defendant’s characterization of the evidence in this case as 

being weaker than that in Dong Haw.
21

b. There was sufficient circumstantial evidence of intent

Defendant also argues that there was no evidence to support the essential element 

of intent. Again, we disagree. “The specific intent to commit the crime of bribery is an 

essential element of the charge, but the trier of fact may resort to circumstantial evidence 

to determine its existence . . . .” (People v. Meacham (1967) 256 Cal.App.2d 735, 744.) 

We have found no published authority discussing the sufficiency of circumstantial 

evidence to support an indictment related to the element of intent, and neither party has 

directed us to any such authority in their briefs. Nevertheless, we observe that several 

cases have discussed the sufficiency of circumstantial evidence of intent to support a 

conviction.

Thus, for example, in People v. Gaio (2000) 81 Cal.App.4th 919, evidence that 

(1) payments were made, (2) the recipient occupied a position that enabled him to 

beneficially advance the payor’s interest, and that (3) the recipient did, in fact, act in the 

payor’s interest was deemed sufficient to support a conviction for bribery. (Id. at 

pp. 931-932.) The Court of Appeal opined that under such circumstances, “it is plainly 

inferable that [the defendants] engaged in the various payments with the intent that [the 

recipient] be influenced to do so.” (Id. at p. 932.)

Likewise, in People v. Wong (2010) 186 Cal.App.4th 1433, the Court of Appeal 

affirmed a conviction for bribery, concluding that “corrupt intent” could be inferred from 

the clandestine payment of funds; the failure of the recipient to disclose his relationship 

with the payor; the recipient’s decision to continue acting in his official capacities, 
22

impacting the payor’s interests; and the cessation of payments as soon as the recipient left 

public office. (Id. at p. 1448.)

Finally, in People v. Diedrich (1982) 31 Cal.3d 263, our Supreme Court concluded 

that evidence that money was paid to an intermediary, the intermediary paid the 

defendant, and the defendant engaged in two official acts for the benefit of the payor was 

sufficient to support a conviction for bribery. (Id. at pp. 271-272.) Notably, the Supreme 

Court found such evidence would be sufficient, even if evidence of direct 

communications between the payor and the recipient regarding the subject of the bribe 

were entirely disregarded, and even in the face of evidence that there were a legitimate, 

alternative reasons for the payor to have hired and paid the intermediary. (Ibid.)

In each of these cases, evidence of payments made, and official actions taken in 

response to those payments, was considered sufficient circumstantial evidence of intent to 

support a conviction. Since “ ‘[e]vidence that will justify a prosecution need not be 

sufficient to support a conviction’ ” (People v. Slaughter (1984) 35 Cal.3d 629, 637), 

similar and even less substantial circumstantial evidence would clearly be sufficient to 

support an indictment. As such, we cannot conclude that the circumstantial evidence in 

this case was lacking.

c. Presentation of other evidence is not grounds for dismissal 

Defendant also complains at length that the People inundated the jury with 
23

inadmissible and irrelevant evidence.

8

 Even if true, this argument is entirely irrelevant to 

our review of the sufficiency of the evidence.

9

With respect to the sufficiency of the evidence, the California Supreme Court has 

repeatedly made clear that a reviewing court’s role is limited and, as long as “there is 

some evidence to support the indictment, the courts will not inquire into its sufficiency.” 

(Greenberg v. Superior Court of San Francisco (1942) 19 Cal.2d 319, 322; Lorenson,

supra, 35 Cal.2d at p. 55; People v. Crosby (1962) 58 Cal.2d 713, 730.) Thus, “[t]he 

presentation to the grand jury of inadmissible or tainted evidence does not in itself 

invalidate an indictment. If sufficient competent evidence, exclusive of the challenged 

8

 We note that the premise of defendant’s argument is highly questionable. 

Defendant appears to characterize any evidence that fails to directly reference his 

involvement in the alleged crime as inadmissible, reasoning that such evidence is

irrelevant. However, the charges being investigated by the grand jury included 

conspiracy to commit bribery. With respect to this charge, “ ‘ [o]ther than the agreement, 

the only act required is an overt act by any of the conspirators, not necessarily the 

defendant, and the overt act need not itself be criminal.’ ” (People v. Ware (2020) 

52 Cal.App.5th 919, 938; People v. Russo (2001) 25 Cal.4th 1124, 1135 [“[A]ny one of 

the conspirators, and not necessarily the charged defendant, may commit the overt act to 

consummate the conspiracy.”].) Thus, the fact that evidence presented to the grand jury 

addressed acts taken by alleged coconspirators does not render such evidence irrelevant

to the charges ultimately brought against defendant, and defendant’s blanket assertion 

that all such evidence would be inadmissible on relevance grounds is not well founded. 

The respondent’s brief identifies only a single instance in which an item of evidence was 

inadmissible on a ground other than its purported irrelevance.

9

 The cases cited by defendant stand for the proposition that the grand jury’s 

reliance on inadmissible evidence may result in setting aside the indictment on other 

grounds afforded by statute or based upon constitutional concerns of due process. 

(§ 939.6, subd. (b); People v. Backus (1979) 23 Cal.3d 360, 393.) However, as we 

explain, ante, we do not believe such grounds exist in this case.
24

evidence, was presented to indict, the indictment will not be found defective.” (People v. 

Fujita (1974) 43 Cal.App.3d 454, 478; Mason v. Superior Court (2015) 242 Cal.App.4th 

773, 787 [“ ‘[T]he fact that evidence that would have been excluded at trial was received 

by the grand jury does not render the indictment void where sufficient competent 

evidence to support the indictment was received by the grand jury.’ ”].)

If, as here, relevant and admissible evidence in the record supports the essential 

elements of the offenses charged in the indictment, the presence of additional evidence 

that may be irrelevant or inadmissible does not somehow negate the existence of the 

admissible evidence in support of the indictment. Thus, defendant’s argument that the 

presence of inadmissible or irrelevant evidence constitutes grounds for finding the 

evidence insufficient is without merit.

B. The Record Does Not Support Defendant’s Claims of Prosecutorial Misconduct

Defendant contends that, even if sufficient evidence supports the indictment, the 

trial court’s order can be affirmed on an alternative ground based upon alleged 

prosecutorial misconduct. Specifically, defendant argues the prosecutor engaged in 

misconduct by (1) failing to present exculpatory evidence to the jury as required by 

section 939.71, and (2) “improperly” questioning witnesses. We do not believe the 

record supports either of these claims.

1. The Record Does Not Show a Violation of Section 939.71

The prosecutor has a statutory duty to inform the grand jury of the nature and 

existence of exculpatory evidence and, thereafter, inform the grand jury of its power to 

order any additional evidence to be produced. (§ 939.71.) The failure to comply with 
25

this statutory duty may, in some cases, justify setting aside an indictment. (See Johnson 

v. Superior Court of San Joaquin County (1975) 15 Cal.3d 248, 255 (Johnson); People v. 

Becerra (2008) 165 Cal.App.4th 1064, 1070.)

However, defendant concedes that the People in this case provided the grand jury 

with a defense letter that, in defendant’s own words, contained a “detailed description of 

exculpatory material . . . and a collection of many exculpatory documents along with a 

description of how each document tended to negate the charges.” The record confirms 

that the prosecutor informed the grand jury of this letter; made the identified documents 

available for the grand jury’s review; and informed the grand jury of its statutory duty 

and power with respect to requesting additional evidence.

10

Provision of such a defense letter, as well as an appropriate admonishment 

regarding the grand jury’s duties under section 939.7, complies with the prosecutor’s 

statutory duty in relation to the disclosure of exculpatory evidence. (See People v. 

McAlister (1976) 54 Cal.App.3d 918, 926 [Where a defense letter “in fact came to the 

10

 In full, the prosecutor stated: “The last thing we’re going to do by way of 

giving you over evidence is something that we call Johnson. . . . [¶] The grand jury is 

not required to hear evidence for the target, but it shall weigh all the evidence submitted 

to it, and when it has reason to believe that other evidence within its reach will explain 

away the charge, it shall order the evidence to be produced and, for that purpose, may 

require the deputy district attorney to issue process for the witness. [¶] As a part of this 

proceeding, we did provide all of the targets with the opportunity to provide whatever 

evidence they wanted you to have. That has been marked as Exhibit 54, which is a 

binder with a letter and some exhibits attached, and Exhibit 72, which is a letter. [¶] So 

we’re providing you with these materials to review. And if there is anything that you 

wish for us to produce pursuant to that Johnson instruction, you let us know during your 

deliberations, and if we can, we will provide you with that information.”
26

grand jury’s attention, it is axiomatic that the district attorney’s obligation under Johnson

[is] discharged, albeit not directly by him.”].)

Defendant’s true complaint is not that the prosecutor failed to inform the grand 

jury of the existence of exculpatory evidence, but that the prosecutor should have done 

more to draw the jury’s attention to the defense evidence or the arguments made by 

defense counsel in its letter. However, there is no authority for the proposition that the 

duty to inform the grand jury of the nature and existence of exculpatory evidence, and of 

its power to order any additional evidence to be produced, also requires the prosecutor to 

highlight particular items of evidence, present potential defense theories that might offer 

alternative explanations for that evidence, or make arguments on behalf of the 

defendant.

11

With respect to defendant’s complaint regarding the manner in which exculpatory 

evidence was presented to the jury, the California Supreme Court rejected a similar 

argument in People v. Houston (2012) 54 Cal.4th 1186, 1205-1206 (Houston). In that 

case, it was undisputed that the prosecutor disclosed the existence of video evidence to 

11

 In fact, Justice Mosk’s concurrence in Johnson expressly recognizes that such 

rights are not conferred by the statutory scheme, observing that, “If prosecution is begun 

by information the accused immediately becomes entitled to an impressive array of 

procedural rights, including a preliminary hearing before a neutral and legally 

knowledgeable magistrate, representation by retained or appointed counsel, the 

confrontation and cross-examination of hostile witnesses, and the opportunity to 

personally appear and affirmatively present exculpatory evidence”; “[b]y contrast, the 

indictment procedure is distinctive because of its deliberate omission” of such safeguards. 

(Johnson, supra, 15 Cal.3d at pp. 256-257.)
27

the grand jury, declined to present the evidence, but informed the grand jury of its right to 

request its production. (Ibid.) The defendant argued the manner of presentation was 

inadequate because the “prosecutor’s statements dissuaded the grand jury from requesting 

the evidence and improperly implied that the recordings had no exculpatory value.” (Id.

at p. 1206.) The Supreme Court disagreed, concluding that regardless of the prosecutor’s 

comments, the defendant suffers no prejudice warranting dismissal under section 995 

where the jury is aware of the existence of the evidence and aware of its authority to 

request it. (Ibid.)

The manner in which the prosecutor presented the exculpatory evidence here is no 

different than that in Houston. The prosecutor openly acknowledged the existence of the 

defense letter as well as exhibits identified as exculpatory evidence and reminded the 

grand jury it had the power to request further production of any evidence for review. In 

fact, unlike in Houston, the prosecutor in this case actually included the alleged

exculpatory evidence with the exhibits made available to the grand jury, instead of 

waiting for a further request from the grand jury to review the evidence. Thus, there was 

no violation of the prosecutor’s statutory duty to inform the grand jury of the nature or 

existence of exculpatory evidence.

2. The Record Does Not Support Prosecutorial Misconduct Based Upon 

“Improper” Questioning

Defendant also contends the prosecutor engaged in misconduct because the record 

is “rife with leading questions, invitations for speculation, improper vouching for lawenforcement witnesses, irrelevant testimony, and needless argument and commentary
28

. . . .” We disagree that these constitute grounds for setting aside an indictment otherwise 

supported by sufficient evidence in the record.

The “grand jury proceeding is investigatory, not adversarial.” (People v. Petrilli

(2014) 226 Cal.App.4th 814, 825.) The statutory protections California has chosen to 

build into its grand jury proceedings do not change the proceeding’s fundamental nature. 

(People v. Brown (1999) 75 Cal.App.4th 916, 931-932 [Statutory protections have not 

“transformed the grand jury proceeding from one that is investigatory to one that is 

adjudicatory.”].) Because the grand jury serves as part of the charging process of 

criminal procedure, and not the adjudicative process, many of the rules intended to 

“ ‘protect the accused during trial-type confrontations with the prosecutor’ ” are generally 

not applicable. (Ibid.) For example, the subject of an investigation is not afforded a right 

to present his own theories, evidence, or argument (§ 939.7); not afforded a right to 

counsel even when summoned to appear before the grand jury (Brown, at pp. 931-932); 

and not afforded a right to grand jurors free from all bias (Packer v. Superior Court

(2011) 201 Cal.App.4th 152, 165-166 [no right to screen grand jurors for potential bias in 

light of a grand jury’s investigatory and accusatory role]).

When viewed in the correct context, it is apparent that the conduct of which 

defendant complains simply does not rise to the level of misconduct, let alone misconduct 

justifying setting aside an indictment otherwise supported by sufficient evidence. The 

prohibition against leading questions is a rule of evidence expressly governing direct and 

cross-examination in the context of an adversarial hearing. (Evid. Code, § 767.) It is 

entirely unclear why defendant believes such a rule has any application to a grand jury 
29

proceeding, which is not an adversarial proceeding, does not include a right of 

confrontation, and does not include the direct or cross-examination of witnesses.

Likewise, the prosecutor’s ability to communicate with a grand jury is not limited 

in the same way it would be to a petit jury during the course of a trial. By statute, the 

prosecutor is expressly authorized to provide information and advice in addition to 

interrogating witnesses. (§ 935.) Thus, the fact that the prosecutor makes comments or 

provides suggestions or advice unrelated to the direct questioning of a witness is not, in 

itself, indicative of misconduct.

Finally, it is hardly surprising that a grand jury proceeding encompasses testimony 

or evidence that, in retrospect, proves irrelevant to the charges contained in an 

indictment. The grand jury’s role is, after all, investigatory, and the subjects it may 

investigate are broad. (§ 917.) The grand jury may initiate a criminal investigation 

leading to an indictment even without being presented with a target by the district 

attorney’s office. (§ 918; McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1466; 

Bradley v. Lacy (1997) 53 Cal.App.4th 883, 892). Obviously, in the course of an 

investigation, the grand jury may inquire into matters that may ultimately not support an 

indictment.

12

 Thus, the fact that, in retrospect, some of the evidence reviewed by the 

12

 For example, in cases in which the grand jury’s investigation leads to 

indictment of an individual not initially identified as a target, or in cases where the grand 

jury decides to return an indictment on only some, but not all, of the potential offenses 

investigated, the record will show that the grand jury reviewed evidence in addition to 

that which is relevant to the offenses alleged in any subsequent indictment.
30

grand jury can be characterized as irrelevant to the charges contained in a subsequent 

indictment is not an indication of prosecutorial misconduct.

Defendant’s claim of fundamental unfairness is premised on an incorrect view of 

the grand jury proceeding. Such a proceeding is not the equivalent of a trial, and the fact 

that the prosecutor engaged in conduct that might be deemed unfair in the context of an 

adversarial trial does not establish that the grand jury proceeding was fundamentally 

unfair or suggest misconduct warranting the setting aside of an indictment.

C. Sufficient Evidence in the Record Supports the Tolling Allegations Related to the 

Statute of Limitations

Finally, defendant contends that the trial court’s order may be partially affirmed 

on the alternative ground that the evidence was insufficient to show the statute of 

limitations had been tolled as to counts 2, 4, 6, 8, 10, and 12, corresponding with the 

alleged acts of bribery in 2012 and 2013. Again, we disagree.

Generally, a violation of section 67 is subject to a three-year statute of limitations. 

(§ 801.) However, the limitations period does not begin to run until discovery of the 

offense. (§ 803, subd. (c)(1).) “[I]n order to hold a defendant over for trial the People 

bear the burden of producing evidence . . . [,] which demonstrates that there is probable 

cause to believe that the prosecution is not barred by the statute of limitations.’ 

[Citation.] . . . ‘Lack of that evidence may be asserted . . . by a motion to set aside the 

indictment . . . ; at that point, the court confronts the general rule permitting it to quash 

only if there is no evidence from which the essential elements of proof can be inferred.’ ” 

(People v. Fine (1997) 52 Cal.App.4th 1258, 1263.)
31

Here, with respect to the payments allegedly constituting the 2012 and 2013 

bribes, the People presented testimony that Pougnet disclosed the source of those 

payments as S.M.’s company and Meaney’s company on his public disclosure forms. 

However, the source of any funds used by S.M. or Meaney to pay Pougnet would not 

have been public knowledge. Defendant has not explained how law enforcement 

investigators would have been able to link him to any payment to Pougnet without first 

being able to review the financial records of Pougnet, S.M., and Meaney. According to 

the testimony before the grand jury, search warrants to obtain access to this information 

were not issued until sometime after October 2016. Thus, the grand jury had evidence 

before it upon which it could reasonably infer that defendant’s involvement could not 

have been discovered until sometime after investigators were able to obtain these 

documents, which was within a year of the filing of the criminal complaint by the People 

in February 2017.

This evidence was sufficient to support the tolling allegations in the indictment13

and, as such, the statute of limitations does not offer an alternative ground to affirm the 

trial court’s order dismissing the indictment in this case.

13

 In light of this conclusion, we deny defendant’s request for judicial notice, filed 

August 19, 2021, of various documents that purportedly suggest defendant’s involvement 

in the alleged offenses could have been discovered earlier. Even accepting defendant’s 

characterization of these documents, at best it would show the evidence on the statute of 

limitations issue is in conflict. However, setting aside an indictment or information on 

statute of limitations grounds is only appropriate where the evidence is uncontradicted; 

and, where the evidence is “conflicting on the question, the court should deny the [section 

995] motion because there has been no proof that the statute has run as a matter of law.” 
32

IV. DISPOSITION

The order is reversed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

(People v. Lopez (1997) 52 Cal.App.4th 233, 250.) Accordingly, the documents are not 

relevant to our consideration of this issue.