Opinion
G051787
06-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES TOLEDANO, Defendant and Appellant.
Thea Greenhalgh and Correen Ferrentino, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10ZF0084) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Thea Greenhalgh and Correen Ferrentino, under appointments by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Kamala D. Harris, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted James Toledano of conspiracy to commit extortion (Pen. Code, §§ 182, subd. (a), 518 [count 1]; all statutory references are to the Penal Code unless otherwise indicated) and attempted extortion (§ 524 [count 2]). Toledano challenges the sufficiency of the evidence to support his convictions, and asserts the trial court misinstructed the jury and failed to give an instruction on entrapment and the litigation privilege. We conclude sufficient evidence supports the jury's verdict and the court did not misinstruct the jury. We also conclude Toledano suffered no prejudice in the court's decision not to rewrite Toledano's legally incorrect special instruction. Consequently, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Mrs. M. met Michael Roberts, a personal trainer, around 1997. At the time, she was in a long-term relationship with Mr. M. The couple, who married in 2003, developed a close relationship with Roberts. Mr. M. employed Roberts to manage a gym for his employees, and in 2000 Roberts moved into the M.'s guest house. In addition to providing Roberts with a good job and accommodations, Roberts also received expensive gifts, and contact with the couple's friends and family.
According to Mrs. M., in late 2005, Roberts's demeanor changed and he often was argumentative, angry, and vindictive, which prompted the couple to ask him to move out. Before leaving, he returned an expensive watch Mr. M. had given him.
In April 2006, Roberts called Mrs. M. several times. He blamed her for ruining his life, and he threatened to ruin hers. The phone calls stopped for a time, but resumed in August 2006. Roberts also phoned other people, telling one person he wanted to tell Mr. M. about his relationship with Mrs. M. Roberts left messages for Mrs. M. threatening to sue her, and warning her," he was "not playing around." The M.'s reported the calls to the sheriff's department.
In late November 2007, Toledano, an attorney, wrote Mrs. M. a letter declaring Roberts had retained him to take legal action to end a "three and a half year campaign against" the trainer involving "defamation, improper and unlawful harassment, and constant interference with most aspects of [Robert's] life." The letter claimed Mrs. M. had engineered the trainer's expulsion from his home, and defamed him to his friends and clients by accusing him of being mentally ill, a drug dealer, and a thief. Toledano asserted Roberts "lost a successful business and an annual income over the past three years of approximately $250,000-$350,000 a year." Toledano claimed he would file a civil complaint within 10 days unless he received a response. The letter did not demand a specific sum of money.
Mrs. M. forwarded the letter to attorney Paul Roper. She received a similar letter from Toledano in December 2007 and again forwarded it to Roper, who promised to look into the matter. Roper phoned Toledano, who represented himself as Roberts's attorney. Roper asked for information to support Toledano's claims, but Toledano responded everything Roper needed to know was in the letters and Mrs. M. could fill him in on the details. Toledano granted Roper time to meet with Mrs. M. before filing the complaint. In early January 2008, Toledano repeated his earlier accusations in a letter to Roper. Roper decided to "call[] his bluff" and do nothing unless Toledano filed a complaint.
In May 2008, Roberts began calling the M.'s again. The calls, some 60 in all, were "substantially more aggressive" and angry. He left a message on one occasion stating he was going to "fuck [Mrs. M.] up." He also made threats to the couple's ranch manager. Mrs. M. believed Roberts might still have a firearm because she saw him with one in the past.
Roper sent Toledano a letter on May 12, 2008, asking him to instruct Roberts to cease his threatening behavior. The M.'s filed a report with the sheriff, hired a personal protection company and obtained a hearing date on their request for a restraining order.
Toledano called Roper on May 27 and requested a meeting for the following day. He stated he possessed information that would "blow [the couple's case for a restraining order] out of the water," and declared they would not want to proceed once they saw the information.
Roper met with Toledano at the latter's Newport Beach office on May 28. Toledano insisted Roper's associate, who was handling the restraining order, not participate in the meeting. Once alone with Roper, Toledano asserted Mrs. M. and Roberts had engaged in an extramarital affair and he had proof in an envelope containing photographs and letters. Toledano stated if Mrs. M. failed to pay $360,000, an amount he asserted she could obtain without her husband's knowledge, he would disclose the purported affair to Mr. M. and the media. He showed Roper photos and letters he claimed proved she had a long-term affair with Roberts, and he reminded Roper he had subpoenaed Mr. M. to the hearing on the restraining order and therefore Mr. M would hear the details of the affair. He assured Roper the information would destroy the couple's marriage and embarrass Mrs. M. Toledano agreed to continue the hearing to allow Mrs. M time to obtain the $360,000.
Roper reported his conversation with Toledano to Mrs. M., and she agreed to pay the money. Mrs. M. worked with the couple's foundation and raised funds for children's charities. Mrs. M. testified Roberts had been a "dear friend," but denied they engaged in an extramarital affair. She decided to pay because she feared the scandal ensuing from Robert's revelations would adversely affect her marriage and harm her fundraising ability and her work at the foundation.
Roper reported the matter to the Newport Beach Police Department and the district attorney's office. Investigators gave Roper a recording device to use when he held further discussions with Toledano. Roper sent a letter to Toledano stating his "take on this was absolutely right," and Mrs. M. would rather pay the money demand than suffer the ensuing harm if the information was disclosed.
Toledano responded to Roper's letter in writing, noting they apparently had come to an agreement as outlined during their earlier meeting. The parties agreed to continue the hearing on the restraining order to June 6, 2008, and they also agreed that would be the day for the payoff.
Over the next week, Roper and Toledano spoke several times about the payment arrangements. Toledano told Roper that Roberts also wanted a watch, and a letter designating the payment as a gift, presumably so the trainer could avoid paying taxes.
Toledano and Roper scheduled a meeting on June 5, 2008, at Toledano's office to arrange details for delivery of the payment the following day. Roberts also attended the meeting, and they discussed the plan to exchange the documents for the money. Roberts wore a hidden recording device to the meeting, and the tape recording was played for the jury during the trial.
The payoff did not occur the next day because the police asked Roper to postpone the meeting until June 13. Toledano wrote Roper "If there is not a chunk of money and the signed gift letter, the deal is off. [Roberts] is going to pull the plug. He is absolutely beside himself. Not a good situation."
At some point, Roberts advised Roper that Toledano no longer represented him. Call records showed Roberts phoned Roper repeatedly between June 7 and June 13. But Toledano continued to communicate with Roper about the exchange.
The parties agreed the money would be placed in a duffel bag and delivered on June 13 in the parking lot of a Newport Beach hotel. The exchange included $200,000 in cash, a cashier's check for $150,000 written to Roberts, and $10,000 in attorney fees for Toledano. Roper faxed Toledano at the latter's request a copy of the cashier's check, gift letter, and a check for Toledano's attorney fees. Toledano told Roper he was too busy to participate in the exchange, but Roberts would be there. Roper and Roberts completed the exchange in the hotel, which was within the sightline of Toledano's law office. Police officers arrested Roberts, and they found in his possession a key for a safe deposit box containing the photos and documents Toledano had shown Roper.
Officers executed a search warrant at Toledano's office seizing phone records showing the communications between Toledano and Roberts, and a file captioned with Roberts's and the M.'s names. The file contained a copy of the gift letter.
There was no evidence of a retainer agreement with Roberts. One billing entry read, "continue drafting complaint," another read "reviewing files." No complaint, draft complaint, legal research or legal memoranda, or evidence addressing or supporting Roberts's legal claims were found.
Toledano testified he represented Roberts on an "informal" basis. Mrs. M.'s declaration in support of the restraining order was contrary to what Roberts had told him, and the letters and photos made it appear she had lied under oath. He disclosed the evidence to Roper, but claimed he did not intend to use it in a public forum. Toeldano did not recall saying the evidence would "blow the case out of the water," and he denied coming up with the $350,000 figure based on how much money Mrs. M. could obtain without her husband's knowledge. He also denied threatening to have the media at the hearing on the restraining order. He knew Roberts had called a woman named Linda G., but denied knowing she worked for a local lifestyle magazine. He claimed Roberts fired him between June 6 and June 9, after the restraining order hearing was continued, but he remained involved because he did not abandon his clients. Roper called Toledano several times stating he should be at the exchange, but Toledano did not attend because he wanted out of the case.
Following trial in November 2014, the jury convicted Toledano as noted above. In March 2015, the trial court suspended imposition of sentence and placed Toledano on probation for three years, ordering him to serve nine months in local custody. The court suspended or stayed the probation order pending the outcome of this appeal.
An indictment jointly charged Roberts and Toledano. Roberts pleaded guilty before jury selection. --------
II
DISCUSSION
A. Sufficient Evidence Supports Toledano's Conviction for Conspiracy to Commit Extortion
Toledano challenges the sufficiency of the evidence to support his conviction for conspiracy to commit extortion. He asserts no evidence showed he harbored the specific intent necessary for extortion, asserting "[h]e made no threats that would have brought him within the criminal extortion statutes and no evidence was proffered that he knew of the content of [] Roberts' harassing calls to the [M.'s] and their friends, calls that may have constituted unlawful threats." He also asserts the litigation privilege protected any "speech when the communications with the alleged victims here were solely about getting [them] to stop civilly defaming Roberts, to compensate for the lost income Roberts reported to appellant, and to return the letters and pictures from [Mrs. M.] and of [her] and Roberts together."
On appeal, we review the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980) 26 Cal.3d 557, 577-578.) Substantial evidence is defined as evidence that is reasonable in nature, credible, and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60.) It is the jury's exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) The appellate court must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, an appellant "bears an enormous burden" in challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
"A conspiracy is an agreement by two or more persons to commit any crime." (People v. Vu (2006) 143 Cal.App.4th 1009, 1024; see § 182, subd. (a)(1).) "A conviction of conspiracy 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." (People v. Morante (1999) 20 Cal.4th 403, 416.)
The crime of extortion "is the obtaining of property from another, with his [] consent, . . . induced by a wrongful use of force or fear . . . ." (§ 518.) The "elements of the offense are: (1) A wrongful use of force or fear, (2) with the specific intent of inducing the victim to consent to the defendant's obtaining his or her property, (3) which does in fact induce such consent and results in the defendant's obtaining property from the victim." (People v. Hesslink (1985) 167 Cal.App.3d 781, 789 (Hesslink).) A defendant may induce fear by threatening to expose, or impute to a person "a deformity, disgrace or crime" or "expose a secret affecting him [or her]." (§ 519; see Flatley v. Mauro (2006) 39 Cal.4th 299, 326 (Flatley).) A "secret" includes a factual matter unknown to the general public, or to some particular portion of it interested in obtaining knowledge of the secret, and "must affect the threatened person in some way so far unfavorable to the reputation or to some other interest of the threatened person [such] that threatened exposure would be likely to induce him through fear to pay out money or property for the purpose of avoiding the exposure." (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1078.) Whether a threatened exposure would affect the victim is a factual question and depends on the nature of the threat and the susceptibility of the victim. (Ibid.; see Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, 1424 [threat may be implied from circumstances].) Extortion is a specific intent crime; guilt depends on the intent of the person who makes the threat and not the effect the threat has on the victim. (People v. Umana (2006) 138 Cal.App.4th 625, 641.)
Substantial evidence demonstrates Toledano conspired with Roberts to extort money from Mrs. M. Roberts informed Toledano about the alleged extramarital affair with Mrs. M., which Toledano relied on in his discussions with Roper, emphasizing the harm Mrs. M. would suffer if Toledano exposed the extramarital affair. Roper testified Toledano made clear to him that if Mrs. M. failed to pay, he would use the documents and photos to cross-examine Mrs. M. at the injunction hearing and reveal she engaged in an extramarital affair with Roberts. In case Roper missed the point, Toledano announced he had subpoenaed Mr. M. to the hearing, and the Orange County press also would attend. Toledano underscored the matter by asserting the revelation likely would destroy her marriage and humiliate her publicly Toledano threatened to use Roberts's information, and his position as an attorney, to ruin Mrs. M.'s reputation and marriage unless she paid him and Roberts the money they demanded. Mrs. M. decided to give in to Toledano's demand and pay the money based on her fear, explaining she "felt intimidated, and obviously blackmailed, and felt this had to stop." She feared the harm to her reputation, which helped her raise funds for numerous charitable endeavors. She testified any scandal highlighted in the press, even if baseless, would devastate her ability to raise money from the people and organizations she had cultivated. She also feared the information would harm her marriage.
Substantial evidence also showed Toledano had the specific intent to induce Mrs. M. to pay the $360,000. Toledano explained he demanded $360,000 because that was the amount Mrs. M. could secure without alerting Mr. M. Toledano instructed Roper that Mr. M. should not participate in the payoff. The evidence sufficiently proved Toledano, using his status as a lawyer, specifically intended to induce Mrs. M to pay $360,000.
Toledano argues it was Roberts who made the harassing phone calls to the M.'s, many of which antedated his representation, and "it was Roberts who allegedly threatened to talk with . . . a publisher of a local society publication about the photos and letters he had." He also emphasizes it was Roberts who allegedly asked for $360,000 because that was the amount Mrs. M. could arrange to pay privately without her husband's knowledge. As noted, Toledano told Roper he had information that would "blow" the M.'s case for a restraining order "out of the water." The jury reasonably could conclude the extortion occurred when Toledano linked the threat to disclose damaging information and photos about an alleged intimate and secret relationship between Roberts and Mrs. M. with a demand for money. Toledano warned Roper if the case did not settle he was going to go forward with a restraining order hearing and that the press would be there. The jury reasonably could reject Toledano's testimony he was an unwitting participant in Roberts's scheme to extort money from Mrs. M., or that he brought out documents and photos only to show he could prove Mrs. M. had perjured herself in the declaration supporting her request for a temporary restraining order. Toledano did not simply demand that Mrs. M. withdraw her request for a restraining order, he asked for a large sum of money to settle nonexistent claims (see post). Toledano essentially invites us to reweigh the evidence, which we must decline. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Toledano also argues the litigation privilege protected him because his communications "were solely about getting the [M.'s] to stop civilly defaming Roberts, to compensate for the lost income Roberts reported to appellant . . . ." We again do not find Toledano's argument persuasive.
Civil Code section 47 provides, "A privileged publication or broadcast is one made: . . . (b) In any . . . (2) judicial proceeding . . . ." A demand in anticipation of litigation can be a legitimate and privileged activity. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [communications preparatory to or in anticipation of filing an action or other official proceeding are protected].) The litigation privilege applies only when it relates to litigation that is contemplated in good faith and under serious consideration; no public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251-1252) Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact. (Ibid.) But demands that are so extreme as to constitute criminal extortion are not protected; extortion is not a constitutionally protected form of speech. (Flatley, supra, 39 Cal.4th at p. 328.) Attorneys are subject to "these principles in their professional conduct." (Flatley, supra, 39 Cal.4th at pp. 329-330 [attorney threatened to publicly accuse person of rape and accuse him of other unspecified unlawful acts unless he paid money to the alleged victim].) Threats to disclose matters unrelated to alleged injury suffered by the client "'exceed[s] the limits of [] representation of'" the client "and is itself evidence of extortion." (Flatley, supra, 39 Cal.4th at pp. 330-331.)
Here, the jury reasonably could have found Toledano did not seriously consider litigation addressing Roberts's alleged claims. Although Toledano asserted he contemplated drafting a complaint, investigators found no evidence of a draft complaint or legal or factual research when they searched Toledano's files. Nothing corroborated the claims Mrs. M. had defamed Roberts, interfered with his business contacts, or ruined Robert's alleged exotic desert plant business. Roper investigated Roberts and found no income from any desert plant business. Moreover, Toledano threatened to disclose matters unrelated to Roberts's alleged claims or any harm he may have suffered. As the Attorney General observes, "Threatening to destroy a person's marriage and reputation by disseminating that person's personal information unless that person covertly delivers a large quantity of cash in a duffel bag to a hotel parking lot, is not related to any 'judicial proceeding' as contemplated by Civil Code section 47." The jury reasonably could find this exceeded the limits of legitimate representation.
Toledano also asserts no evidence showed he had the specific intent to enter into a conspiracy with Roberts to extort a cash payment from Mrs. M. He basically rehashes his testimony that he did not know the content of Roberts's phone calls, he did not become aware of the calls until after the fact and then told Roberts to stop, he did not threaten to have media at the May 2008 hearing, he did not come up with the $350,000 figure, and claimed Roper came up with the $10,000 figure for attorney fees payable to Toledano.
The jury rejected Toledano's exculpatory account, and substantial evidence supports their decision. Toledano was Roberts's attorney when he made the threats to Roper. The three men met at Toledano's office to discuss the payoff. The evidence shows Toledano brokered the deal, uttered the threats, and Roberts followed through, keeping pressure on Roper and ultimately showing up in the hotel parking lot across from and in view of Toledano's office to pick up the bag of cash. Given the evidence detailing Toledano's conduct at the meetings with Roper, substantial circumstantial evidence exists Toledano had the specific intent to enter into a conspiracy with Roberts to extort the M.'s. (People v. Donnolly (1904) 143 Cal. 394, 398 [conspiracy may be shown indirectly by evidence of facts from which jury might infer ultimate fact of conspiracy].) Because there was sufficient evidence Toledano directly participated in the conspiracy, we need not address his claim the evidence was insufficient to support a conviction for conspiracy on an aiding and abetting theory. B. Sufficient Evidence Supports Toledano's Conviction for Attempted Extortion
Section 524 provides, "Every person who attempts, by means of any threat, such as is specified in Section 519 of this code, to extort property or other consideration from another" is guilty of a crime. "The elements of the crime of attempted extortion are (1) a specific intent to commit extortion and (2) a direct ineffectual act done towards its commission." (People v. Sales (2004) 116 Cal.App.4th 741, 749.) Toledano repeats his claims from the preceding section no evidence demonstrated he had the specific intent to commit extortion, and the litigation privilege protected his communication with Roper. He asserts "in any case, he made no threat of unlawful injury, made no accusation of a crime, only communicated lawful facts, and did not intend to expose secrets. (See Pen. Code, § 519.)" Again, sufficient evidence supports the jury's contrary conclusion that Toledano attempted to expose Mrs. M.'s alleged extramarital affair to frighten her into paying him money. Because there was sufficient evidence Toledano directly participated in the attempted extortion, we need not address his claim the evidence was insufficient to support a conviction on an aiding and abetting theory. C. The Trial Court Did Not Err in Declining to Give an Entrapment Instruction
Toledano argues the trial court erred by failing to provide an instruction on entrapment when the jury asked, during deliberations, "What is the legal definition of entrapment? What is the possible applicability to Roper?" The court declined Toledano's request to give an entrapment instruction, instead telling the jury entrapment can be a defense to a criminal charge, but it was not a defense in this case.
"[T]he proper test of entrapment in California is the following: was the conduct of the law enforcement agent likely to induce a normally law-abiding person to commit the offense? For the purposes of this test, we presume that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect - for example, a decoy program - is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." (People v. Barraza (1979) 23 Cal.3d 675, 689-690, fn. omitted.) "The trial court [is] required to instruct [] on the defense of entrapment if, but only if, substantial evidence supported the defense." (People v. Watson (2000) 22 Cal.4th 220, 222-223.)
The trial court did not err in rejecting Toledano's requested entrapment instruction. Toledano relied on Newport Police Detective David Stark's testimony Roper was a police operative when he arranged a second meeting with Toledano. Substantial evidence, however, showed Toledano already had committed the charged crimes because he and Roberts agreed on a plan to threaten Mrs. M. with exposure of the alleged affair, and Toledano conveyed his threat to Roper in their initial meeting on May 28. No evidence showed Roberts acted as a police agent when he first met Toledano in Toledano's office.
But assuming Roper became a police agent after contacting law enforcement, substantial evidence did not support a finding his conduct likely would induce a normally law-abiding person to commit extortion. Although Roper wore a wire and recorded his conversations with Toledano, the detectives did not tell Roper what to say in the discussions Roper had with Toledano. There was no overbearing conduct, badgering, cajoling, or importuning. Roper simply played along with Toledano's extortion demands and agreed to submit to them on behalf of Mrs. M. He did not offer $360,000 in exchange for a promise to not make public secret personal information; that figure came from Toledano. Roper's participation in meetings with Toledano and Roberts did not constitute entrapment because Roper did nothing that would make commission of the crime unusually attractive or irresistibly tempting to a normally law abiding person. D. Special Instruction
Toledano complains the trial court erred in failing to give the jury the following special instruction: "The law provides that an attorney is allowed to make what could be considered threats if made by another person so long as those threats have any relation to pending or potential litigation, other than a direct threat to cause criminal charges to be filed against another person if money is not paid. If you find that James Toledano made threats against [Mrs. M.], and those threats had any relation to pending or potential litigation and were not a direct threat to cause criminal charges to be filed against her, you must find him not guilty of the crime of extortion." The prosecutor objected the instruction misstated the law concerning extortion and would confuse the jury. The trial court stated the instruction was too broad, and refused to redraft it.
Upon request, a trial court must give jury instructions "that 'pinpoint[ ] the theory of the defense.'" (People v. Wright (1988) 45 Cal.3d 1126, 1137; see People v. Earp (1999) 20 Cal.4th 826, 886.) The court has no obligation to give a legally incorrect instruction. (People v. Edwards (2013) 57 Cal.4th 658, 745.)
Although Toledano asserts his special instruction merely reproduced the litigation privilege, we conclude the instruction did not correctly state the law. As noted above, the litigation privilege applies only when the demand relates to litigation that is contemplated in good faith and under serious consideration. It does not apply to threats to disclose matters unrelated to the alleged injury the client suffered. The instruction was flawed because it stated the privilege applied to threats (other than to file criminal charges) "so long as those threats have any relation to pending or potential litigation. . . ." Moreover, the proposed instruction did not explain that threats to disclose matters unrelated to the alleged injury the client suffered are not privileged.
The instruction also misstates the law of extortion by declaring an attorney may make threats that would constitute extortion if made by a lay person, unless the attorney made "a direct threat to cause criminal charges to be filed." As stated, the instruction would not expose an attorney to criminal liability for extortion even if the lawyer threatened to physically harm the victim. As relevant here, the instruction did not explain that extortion is committed if the threat involves exposing a secret that would subject a person to "disgrace" unless that person submitted to the demand for payment or property. (Flatley, supra, 39 Cal.4th at p. 326.)
The trial court, however, had a sua sponte duty to give a correctly phrased instruction on Toledano's affirmative defense that his actions were protected under the litigation privilege. (People v. Stewart (1976) 16 Cal.3d 133, 140.) We apply the Watson standard in assessing whether the failure to give an instruction on the litigation privilege was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 177 (Breverman); People v. Watson (1956) 46 Cal.2d 818, 836; People v. Watt (2014) 229 Cal.App.4th 1215, 1219-1220.)
Under Watson, "posttrial review focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th p. 177.) Here, we conclude it is not reasonably probable the outcome would have been different had the court given an instruction on the litigation privilege. The prosecution's civil litigation expert testified there was "no evidence" in Toledano's file showing a valid legal claim. When meeting Roper, Toledano did not discuss the civil lawsuit he mentioned in his correspondence, but instead threatened to reveal the alleged affair at the hearing on the injunction unless Mrs. M paid the $360,000 demand. The jury hardly needed an expert to tell them exchanging duffel bags of cash for documents in a hotel parking lot showed an attempted extortion, not a legitimate settlement of a legal dispute. Little if any evidence showed Toledano's demand related to litigation contemplated in good faith and under serious consideration. Any conceivable error here was harmless under Watson. E. Extortion Instruction
Toledano argues the court's extortion instruction was flawed because it "failed to include the necessary element that the threat of force or fear be wrongful."
The court provided the following version of CALCRIM No. 1830: "The defendant is charged in Count 1 with conspiracy to commit extortion in violation of Penal Code section 518 and in Count 2 with attempted extortion in violation of Penal Code section 524. [¶] To prove the crime of extortion, the People must prove that: [¶] 1. The defendant threatened to accuse another person of a crime OR the defendant threatened to expose a secret about another person, OR to expose or connect another person with a disgrace or crime; [¶] 2. When making the threat, the defendant intended to use that fear to obtain the other person's consent to give the defendant money or property; [¶] 3. As a result of the threat, the other person consented to give the defendant money or property; [¶] AND [¶] 4. As a result of the threat, the other person then gave the defendant money or property. [¶] The term consent has a special meaning here. Consent for extortion can be coerced or unwilling, as long as it is given as a result of the wrongful use of force or fear. [¶] The threat must be the controlling reason that the other person consented. If the person consented because of some other controlling reason, the defendant is not guilty of extortion. [¶] The threat may involve harm to be inflicted by the defendant or by someone else. [¶] A secret is a fact that: [¶] 1. Is unknown to the general public or to someone who might be interested in knowing the fact; [¶] AND [¶] 2. Harms the threatened person's reputation or other interest so greatly that he or she would be likely to give the defendant money or property to prevent the fact from being revealed." (Italics added.)
The instruction tracks the official version of CALCRIM No. 1830. Both provide the victim's consent must be given as a result of the wrongful use of force or fear. The jury could not have convicted unless it found consent, and could not have found consent unless it concluded Toledano wrongfully used fear. Even if the instruction erroneously "failed to include the necessary element that the threat of force or fear be wrongful," or "failed to include the word 'wrongful' in th[e] first element of extortion when providing the jury with CALCRIM No. 1830," there was no prejudicial error. (See People v. Flood (1998) 18 Cal.4th 470, 485 [appellate court must affirm where factual question posed by an omitted instruction necessarily was resolved adversely to the defendant under other properly given instructions].)
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.