People v. Moyer

• Docket Number: H049408
• Decision Date: 25 August 2023
• Citation: People v. Moyer, 94 Cal.App.5th 999, 312 Cal.Rptr.3d 773 (Cal. App. 2023)
• Parties: The PEOPLE, Plaintiff and Appellant, v. Thomas MOYER, Defendant and Respondent.
• Court: California Court of Appeals

94 Cal.App.5th 999

312 Cal.Rptr.3d 773

The PEOPLE, Plaintiff and Appellant,

v.Thomas MOYER, Defendant and Respondent.

H049408

Court of Appeal, Sixth District, California.

Filed August 25, 2023

As Modified September 18, 2023

Attorneys for Plaintiff and Appellant, The People of the State of California: Jeffrey F. Rosen, District Attorney, John Chase, Deputy District Attorney, San Jose.

Attorneys for Defendant and Respondent, Thomas Moyer : Britt H. Evangelist, San Francisco, Edward W. Swanson, Mary McNamara.

BROMBERG, J.

This appeal raises a question not yet addressed by any California court: whether a public official may be bribed with a promise to donate to the official's office.According to the People, the Santa Clara County undersheriff requested—and defendantThomas Moyer made—a promise to donate iPads to the Santa Clara County Sheriff's Office in exchange for releasing concealed carry weapon (CCW) licenses that the sheriff had signed.Consistent with the Ninth Circuit's interpretation of California law, federal law and the law in many states, we conclude that such a promise may constitute a bribe.We also conclude that the evidence presented to the grand jury was sufficient to raise a strong suspicion of such bribery.Accordingly, we reverse the trial court's order dismissing the bribery count against Moyer, reinstate that count, and remand for further proceedings.

I.Background

Because defendant challenges the sufficiency of the evidence presented to the grand jury, we recount that evidence below.As required on appeal, we consider that evidence in the light most favorable to the indictment, drawing all legitimate inferences in favor of it.(See, e.g., Stark v. Superior Court(2011)52 Cal.4th 368, 406-407, 128 Cal.Rptr.3d 611, 257 P.3d 41( Stark );People v. Guzman(2011)201 Cal.App.4th 1090, 1096, 134 Cal.Rptr.3d 66.)

A. CCW Licenses in Santa Clara County

The Penal Code authorizes, but does not require, county sheriffs to issue licenses to carry concealed weapons to applicants who are of good moral character, have good cause for a license, reside or work in the county, and have completed a specified course of training.( Pen. Code, § 26150, subd. (a)¹;but seeNew York State Rifle & Pistol Association, Inc. v. Bruen(2022)597 U.S. ––––, ––––, 142 S.Ct. 2111, 2123-2124, 2156, 213 L.Ed.2d 387[noting that California's good cause requirement is similar to the New York "proper-cause" requirement held unconstitutional under the Second Amendment].)In the Santa Clara County Sheriff's Office, CCW applications are processed by the public information officer, who is responsible for conducting background checks, arranging fingerprinting, and ensuring that applicants complete the required trainings.

During the relevant time frame, the Santa Clara County Sheriff's Office rarely issued CCW licenses.Indeed, the office's practice was to not even process an application for a CCW license absent a special instruction to do so.Only Sheriff Laurie Smith and a small number of others in the Sheriff's Office had the authority to give such instructions.One of those individuals was Rick Sung, who appears to have run Sheriff Smith's 2018 re-election campaign and after the election became the undersheriff, second in command to the sheriff.Undersheriff Sung also had authority to place license applications on hold even after licenses were signed by the sheriff.

Undersheriff Sung abused his authority over CCW applications to extract favors.In 2016 or 2017, Harpreet Chadha, a business owner, applied to renew a CCW license.After the license was signed, Sung placed the license on hold and met with Chadha.Afterwards, Chadha attempted to schedule an event for the sheriff in his company's luxury suite in the San Jose sports arena.The event did not take place then, and Chadha's CCW license remained on hold for more than a year until Sung spoke with Chadha in December 2018 and a new permit was prepared.On February 14, 2019, Chadha hosted an event for Sheriff Smith in his company's luxury suite.That same day, Chadha received his CCW license.

B. Apple's CCW Applications

Thomas Moyer is Apple, Inc.’s head of global security.The company's executive protection team is under his supervision.In 2016 and early 2017 the team began receiving more serious threats against Tim Cook, Apple's CEO, and became concerned about its ability to respond to these threats.As a consequence, in early 2017, Apple decided its executive protection team should be armed and began taking steps to obtain CCW licenses for team members, many of them based in Santa Clara County.

1.The 2017 Meeting with Undersheriff Sung

In August 2017, after several initial approaches were rebuffed, two Apple officials—David Gullo, senior director of global security, and Eric Mueller, senior director of operations for the security team—met with Undersheriff Sung to discuss CCW licenses.In the meeting Sung said he would help Apple obtain licenses.

At the end of the meeting, Undersheriff Sung brought up the upcoming election for sheriff and asked Gullo and Mueller if they would support Sheriff Smith's re-election.The request raised "a red flag" for Gullo because Sung appeared to be linking CCW licenses to his request for political support.Consequently, Gullo reported to Moyer that "we were approached by the Sheriff's Office, and they wanted us to support the Sheriff for re-election."Moyer responded with a "[c]ouple of rules": "You are free to support whomever you like," but "[y]ou should not feel like you need to support her because you work for Apple."Moyer also added pointedly, "We will not give money or anything of value in exchange for CCW[s]."

2.The 2018 CCW Applications

For nearly a year, Apple's CCW applications made little progress.In June 2018, Moyer got involved personally and secured a meeting with Sheriff Smith.After the meeting, Moyer told the leader of the executive protection team that the sheriff would approve the CCW licenses, and he should "start preparing the Santa Clara CCW paperwork for the team."

The next month, members of the executive protection team submitted CCW applications to the Santa Clara County Sheriff's Office.The public information officer, however, did nothing because he received no instruction to process the applications even when he specifically asked Sheriff Smith about them.

3.Moyer's Donation to Sheriff Smith's Campaign

Although Moyer had said in August 2017 that Apple would not give anything of value in exchange for CCW licenses, in October 2018 Mueller donated $1,000, the maximum allowable amount, to Sheriff Smith's re-election campaign based on Undersheriff Sung's "ask" a year earlier.After Mueller informed Moyer of the donation, Moyer likewise donated the maximum amount to Sheriff Smith's campaign, and Mueller informed the sheriff's campaign of both donations.

4.Processing of the CCW Applications and Signing of the Licenses

Several days after donating to Sheriff Smith's campaign, Moyer emailed the sheriff to check on the status of Apple's CCW applications.Moyer followed up the next week, and at the end of the month Apple put together a report on the increasing number of threats against its CEO in hopes of speeding up issuance of the CCW licenses.

After the November 2018 election, the public information officer asked Undersheriff Sung about Apple's CCW applications.Sung responded that one of Apple's security officers had actively supported Sheriff Smith's opponent in the election and that he would not allow the licenses to be granted if that officer was the one requesting them.

Later in November, Undersheriff Sung called Mueller.Sung expressed anger that some Apple security officials had endorsed Sheriff Smith's opponent.After this "venting," Sung turned to the CCW applications and asked to meet about them in person.Later that day Mueller again talked with Sung, who told him that the licenses had been "signed off on" and asked to meet with Moyer.The following day, Mueller sent an email to Sung's personal email address "[r]eintroducing" him to Moyer.

That same day, Undersheriff Sung directed the public information officer to process Apple's CCW applications.In January 2019, after the applicants were fingerprinted and had completed their firearm range qualification tests, Sheriff Smith signed the CCW licenses, which were sent to an administrative assistant.However, before the assistant could tell the applicants to pick them up, the licenses were removed from her desk.

5.The February 8, 2019 Meeting

On January 23, 2019, Undersheriff Sung sent an email from his personal email account to Moyer, asking to set up a meeting with Moyer, Sheriff's Office Captain James Jensen, and himself.This meeting took place on February 8 in the visitor's center at Apple Park.

Although Apple had no established program for donating products to law enforcement agencies, and the Sheriff's Office had no immediate need for iPads, during the meeting Moyer sent himself a blank email with the subject line: "IPad Donation."

Immediately after the meeting, Moyer emailed the leader of Apple's executive protection team that "[y]ou will have your permits shortly."

6.The Promised iPad Donation and Release of the CCW Licenses

On February 10, 2019, two days after meeting with Undersheriff Sung and Captain Jensen, Moyer emailed a senior finance manager at Apple asking about the rules for donating iPads or computers to the local sheriff's office for its "new training facility."The following day an Apple compliance attorney replied that California public agencies may accept donations but asked Moyer to "make sure that there are no significant matters or purchases pending with the agency."In response Moyer made no mention of Apple's pending CCW license applications.Instead, he told the compliance attorney that "we are not doing this because we are receiving anything in exchange."Moyer informed the attorney of the applications only after the licenses were issued and...