DA Won’t Investigate Aguirre

District Attorney Bonnie Dumanis won’t be conducting the investigation into City Attorney Mike Aguirre that Council President Scott Peters requested yesterday because Dumanis has endorsed one of Aguirre’s challengers.

“That request would have to go to the Attorney General’s Office, Bonnie has endorsed a candidate in the race,” said spokesman Paul Levikow in a message on my voicemail.

Peters yesterday said the district attorney should investigate “allegations of extortion and political blackmail” that were made in an Attorney General’s Office report on Sunroad released yesterday. The report was into Aguirre’s own allegations that Mayor Jerry Sanders acted corruptly during the Sunroad fiasco last year.

(Dumanis has endorsed Judge Jan Goldsmith in the city attorney’s race. Peters is also running against Aguirre.)

The attorney general’s report contains a new allegation against Aguirre. It states that Aguirre’s right-hand-man, Don McGrath, in the midst of the Sunroad scandal, told a mayoral aide that Aguirre would publicly accuse the mayor of corruption if Sanders didn’t back down on a plan to cut 17 positions from the City Attorney’s Office. McGrath and Aguirre vehemently denied trying to make any such deal.

On another related note, I’ve been trying to figure out whether what McGrath and Aguirre are alleged to have done actually comes within the legal definition of “criminal extortion” anyway. I called professor Laurence Benner at Cal Western School of Law, an expert in criminal law.

He said the allegations against Aguirre don’t really fit into the statutory definition of extortion, contained in Section 518 of the California Penal Code:

518. Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

Crucial to the statutory definition is that word “fear.”

In order for Aguirre’s alleged actions to be defined as extortion, he must have induced fear in Sanders. Well, included in the statutory definition of fear, as it constitutes extortion, is this:

2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,

So, if the alleged threat made to Sanders was that Aguirre would go public with his allegation that the mayor was corrupt, the pertinent legal question is whether that constitutes a threat to accuse Sanders, or any relative of his, or member of his family, of a crime.

Benner said he doesn’t think so. The attorney general’s report states that Aguirre threatened to “publicly accuse the mayor of being corrupt.” Benner said “being corrupt” isn’t a crime.

“You’ve got to point to some actual crime, for example, bribery,” Benner said. “You have to be more specific than that, there’s no such crime as ‘being corrupt.’”

In other words, Benner doesn’t think Aguirre’s threat was strong enough or specific enough to induce “fear” in Sanders that would make him do Aguirre’s bidding, which means it doesn’t fit the statutory definition of criminal extortion.

And Benner said even if the alleged wrongdoing did fit within the statutory definition of extortion, it would be very difficult for a prosecutor to prove anything because the only evidence that Aguirre or McGrath made these threats is that Fred Sainz, the mayor’s spokesman, said they did.

“I just think it’s going to be rough. It’s rough for them to prove it and make it stick,” Benner said.

— WILL CARLESS