Filed 6/24/19




                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


 THE PEOPLE,

      Plaintiff and Respondent,                     G051787

                  v.                                (Super. Ct. No. 10ZF0084)

 JAMES TOLEDANO,                                    OPINION

      Defendant and Appellant.


                  Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Reversed.
                  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 on extortion and erred in failing to give an instruction on
entrapment and a pinpoint instruction on the litigation privilege. We conclude sufficient
evidence supported the jury’s verdict, but we reverse the judgment because Toledano
suffered prejudice in the trial court’s decision not to instruct on Toledano’s affirmative
defense his actions were protected under the litigation privilege.
                                              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 temporarily stopped, 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.



                                              2
              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 said he was Roberts’s attorney.
Roper asked for information to support Toledano’s claims, but Toledano responded that
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 threatened 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.

                                             3
              Toledano called Roper on May 27 and requested a meeting for the
following day. Toledano claimed 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 and his associate 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 a long-term affair and he had proof in an envelope containing
photographs and letters. Toledano stated if Mrs. M. failed to pay $350,000, 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 $350,000.
              Roper reported his conversation with Toledano to Mrs. M., and she agreed
to pay the money. Mrs. M. testified Roberts had been a “dear friend,” but denied they
had an 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 couple’s foundation, which raised funds for children’s charities.
              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 Toledano disclosed the information.



                                             4
              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. Roper wore a
hidden recording device to the meeting, and the tape recording was played for the jury.
Roberts also attended the meeting, and they discussed the plan to exchange the
documents for the money.
              Toledano accepted Roper’s offer to pay him $10,000 in attorney fees.
Roper based his $10,000 offer on a previous discussion with Toledano, and explained
why he selected that amount. “Because I had received a letter that threatened – a
complaint with some reasonably sophisticated causes of action referenced . . . So in my
mind, if Mr. Toledano had actually done the research that was required of him, in my
opinion, to figure out who [Mrs. M.] defamed Mr. Roberts to, what interference there had
been with respect to a business advantage, how she had ruined his life, and [Toledano]
had done all of that research . . . [M]y calculation in my own head was if he had done all
of that work and drafted a complaint, his fees would exceed $10,000.” Roper also
testified the payment to Roberts, the watch, and Toledano’s fees had “nothing to do with
the complaint.”
              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



                                             5
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 to a Newport Beach hotel parking lot. 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 parking lot, 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.
              The prosecution called an experienced civil litigation attorney, Doug
Degrave, to offer his expert opinion on Toledano’s conduct in negotiating the payout to
Roberts in the hotel parking lot. Degrave, who reviewed Toledano’s files, e-mails, notes,
evidence taken from Toledano’s computer, and the police reports, testified he found no
evidence Toledano had a retainer agreement with Roberts. One billing entry read,
“continue drafting complaint,” another read “reviewing files,” but neither Degrave nor
the police found a complaint, draft complaint, legal research or memoranda, files, or any
evidence Toledano had investigate Roberts’s allegations. Consequently, Degrave found
“no evidence” in Toledano’s file to support a valid legal claim.

                                              6
               Degrave emphasized there was no evidence in the file to support Roberts’s
claim Mrs. M. caused him to lose numerous business clients, but nevertheless Toledano
demanded $350,000 based not on Roberts’s damages, but on what Mrs. M. could obtain
without alerting her husband, and in exchange for pictures and letters allegedly showing
Mrs. M. and Roberts had an affair. Degrave therefore concluded “there’s not a good faith
belief in the claim itself that it had that value.”
               Degrave also testified Toledano acted unethically when he threatened to
reveal the allegedly compromising photos and letters to the media. Given a set of
hypothetical facts based on the evidence, Degrave concluded the arrangement to deliver
cash and a cashier’s check to Roberts in a hotel parking lot was not a legitimate
settlement of a valid legal claim, but “more like hush money.”
               Toledano’s civil litigation expert, Ronald Talmo, testified that Toledano’s
November 2007 demand letter was a standard cease-and-desist letter in a defamation
action. Talmo concluded Toledano did not need proof of damages because Roberts’s
claim established defamation per se. Talmo explained Toledano’s $350,000 cash demand
was appropriate because his client wanted cash, and Talmo also explained civil litigators
often ask for more in damages than they otherwise could prove. Talmo also noted
disclosure of sensitive information before litigation might lead to serious negotiations and
therefore is appropriate.
               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. Toledano
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.,

                                                7
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. 1 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.
                                             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.”



1
       An indictment jointly charged Roberts and Toledano. Roberts pleaded guilty
before jury selection.

                                             8
              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

                                              9
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.)
              1. Specific Intent to Conspire with Roberts to Commit Extortion
              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 long-term 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
a long-term 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,

                                            10
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 $350,000. Toledano explained he demanded $350,000 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
$350,000.
              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 $350,000
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

                                             11
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 what the prosecution’s expert testified
were 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 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.



                                             12
              2. Litigation Privilege Would Not Negate Jury’s Finding
              Toledano argues the litigation privilege set forth in Civil Code section 47
immunizes him from liability for extortion 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 disagree.
              Civil Code section 47 provides, “A privileged publication or broadcast is
one made: . . . (b) In any . . . (2) judicial proceeding . . . .” “The usual formulation is that
the privilege applies to any communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the
objects of the litigation; and (4) that have some connection or logical relation to the
action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) “A prelitigation
communication is privileged only when it relates to litigation that is contemplated in
good faith and under serious consideration.” (Action Apartment Assn., Inc. v. City of
Santa Monica (2007) 41 Cal.4th 1232, 1251 (Action Apartment).) No public policy
supports extending the privilege to persons who attempt to profit from hollow threats of
litigation. (Id. at p. 1252.) Whether a prelitigation communication relates to litigation
that is contemplated in good faith and under serious consideration is an issue of fact.
(Ibid.) The privilege applies regardless of whether the communication was made with
malice or intent to harm, and whether the alleged conduct was fraudulent, perjurious,
unethical, or even illegal. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903,
919-920.)
              No case has addressed whether the litigation privilege applies in criminal
prosecutions for extortion. (See, e.g., Flatley, supra, 39 Cal.4th at p. 322 [declining to
decide whether litigation privilege applies to criminal extortion].) The Attorney General
argues it does not. In Action Apartment, supra, the Supreme Court held that there is no
“exception for criminal prosecutions . . . inherent in the litigation privilege itself.”
(Action Apartment, supra, 41 Cal.4th at p. 1245.) Although the high court acknowledged

                                               13
that the litigation privilege did not preclude criminal prosecutions for “perjury (Pen.
Code, § 118 et seq.); subornation of perjury (id., § 127); criminal prosecution under
Business and Professions Code section 6128; false report of a criminal offense (Pen.
Code, § 148.5); and ‘attorney solicitation through the use of “runners” or “cappers,”’” it
explained that those criminal statutes were excepted from the litigation privilege because
each of them “is more specific than the litigation privilege and would be significantly or
wholly inoperable if its enforcement were barred when in conflict with the privilege.”
(Action Apartment, supra, 41 Cal.4th at pp. 1245-1246.) Here, the criminal statutes
prohibiting extortion are not more specific than the civil litigation privilege; one can
commit criminal extortion without implicating any litigation-related matter. The
enforcement of the criminal extortion statutes would not be rendered significantly or
wholly inoperable due to application of the litigation privilege. Thus, the litigation
privilege may apply to criminal prosecutions of extortion.
              Nevertheless, a reasonable jury could conclude that the litigation privilege
does not apply to Toledano’s extortionate statements. Threats related to “litigation that is
contemplated in good faith and under serious consideration” are protected by the
litigation privilege. (See Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832,
843 [“Even considering the settlement proposal was made in a manner which might be
considered a veiled ‘threat’ we recognize ‘this type of language is part of the adversary
system, and, as such, is to be anticipated in the course of “heated battle” between adverse
parties to proceedings considered to be within the context of “judicial proceedings.”’”].)
Thus, Toledano’s statement he had information that would “blow” the M.’s case for a
restraining order “out of the water,” by itself, would be privileged. A threat to reveal the
information unless the M.’s withdraw the request for a restraining order also would be
privileged. However, Toledano’s demand for $350,000 to not disclose the alleged long-
term affair is not privileged because that demand is not related to the M.’s seeking a
restraining order against Roberts.

                                             14
              Toledano argues that his extortionate threats in May 2008 were related to
contemplated litigation arising from Mrs. M.’s alleged defamation of Roberts, which
caused him to lose “approximately $250,000-$350,000 a year” in his desert plant
business. Toledano raised these claims in a November 2007 letter to Mrs. M. and in
several subsequent communications. (See Aronson v. Kinsella (1997) 58 Cal.App.4th
254, 266 [“if the statement is made with a good faith belief in a legally viable claim and
in serious contemplation of litigation, then the statement is sufficiently connected to
litigation and will be protected by the litigation privilege”].) But other evidence supports
the jury’s verdict.
              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 $350,000 demand. Roper investigated
Roberts and found no income from any desert plant business. Degrave, the prosecution’s
civil litigation expert, opined “no evidence” in Toledano’s files showed Roberts had a
valid legal claim. Moreover, although not dispositive, the jury reasonably could infer
Toledano never seriously contemplated litigation because he never drafted a complaint
and Toledano’s files did not include a retainer agreement or legal research memoranda.
(See Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 684 [failure to follow through with
litigation threat “give[s] rise to an inference that the demand letter was not sent in
connection with litigation contemplated in good faith and under serious consideration”];
see also Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36 [“mere
potential or ‘bare possibility’ that judicial proceedings ‘might be instituted’ in the future
is insufficient to invoke the litigation privilege”].) In sum, the jury reasonably could have
found Toledano did not seriously consider litigation addressing Roberts’s alleged claims,
and thus the litigation privilege did not apply to protect Toledano’s extortionate
communications.



                                              15
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 long-term affair to frighten her into
paying him money. For the same reasons stated above, the jury also could find the
litigation privilege did not protect Toledano’s statements. 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.   Special Instruction on Litigation Privilege
              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



                                              16
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.) Of course, 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. The
instruction was flawed because it fails to instruct the jury that the pending or potential
litigation must be “contemplated in good faith and under serious consideration.” 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 (Stewart).)
                The instruction should have been given in substantially the following
form 2:
                “The litigation privilege may be a defense to the charged crimes. The
defendant is not guilty of the charged crimes if the litigation privilege applies to his
communications. The defendant’s communications are protected by the litigation
privilege if:
                “1. The communication was made in a judicial or quasi-judicial proceeding;
                AND
                “2. The communication was made by litigants or other participants
authorized by law;


2
       The language of the proposed litigation privilege instruction tracks language in the
Supreme Court’s decisions in Silberg, supra, 50 Cal.3d at p. 212, Action Apartment,
supra, 41 Cal.4th at p. 1251, and Hagberg v. California Federal Bank (2004) 32 Cal.4th
350, 361.

                                               17
              AND
              “3. The communication was made to achieve the objects of the litigation;
              AND
              “4. The communication had some connection or logical relation to the
action.
              “Although the litigation privilege applies to communications made in a
judicial proceeding, the litigation privilege is not limited to statements made in a
courtroom. It encompasses not only testimony in court and statements made in
pleadings, but also statements made prior to the filing of a lawsuit.
              “A prelitigation communication is privileged only when it relates to
litigation that is contemplated in good faith and under serious consideration.”
              The Attorney General argues the litigation privilege instruction also should
include the following language: “The litigation privilege does not apply to
communications threatening to disclose a matter unrelated to an alleged injury suffered
by the client because those communications exceed the limits of representation of the
client.” We disagree because the proposed language is likely to confuse the jury in this
case. The proposed instruction draws upon language in the Supreme Court’s decision in
Flatley, supra. (See Flatley, supra, 39 Cal.4th at pp. 330-331 [“the threat to disclose
criminal activity entirely unrelated to any alleged injury suffered by [attorney’s] client
‘exceeded the limits of respondent’s representation of his client’ and is itself evidence of
extortion”].) Flatley, however, did not address the scope of the litigation privilege, but
the scope of the anti-SLAPP statute. Unlike Flatley, the threat here was not to disclose
criminal activity, which would violate rule 5-100(A) of the California Rules of
Professional Conduct. (See Flatley, supra, 39 Cal.4th at p. 327.) Disclosure of a
noncriminal matter would not necessarily exceed the limits of legal representation.
Finally, the proposed instruction is redundant with the other instructions.
Communications that are unrelated to the subject matter of the legal representation would

                                             18
fail to satisfy element four – that the communication have “some connection or logical
relation to the action.” (Silberg, supra, 50 Cal.3d at p. 212.)
              The Attorney General also argues that any failure to instruct, sua sponte, on
the litigation privilege is harmless. Ordinarily, instructional error is assessed under the
Watson reasonable probability standard. (Flood, supra, 18 Cal.4th at p. 490; see People
v. Larsen (2012) 205 Cal.App.4th 810, 830 [“[e]rroneous failure to give a pinpoint
instruction is reviewed for prejudice under the Watson harmless error standard”].)
Toledano argues we must review an erroneous failure to instruct on an affirmative
defense relied upon by the defendant and supported by substantial evidence under the
Chapman beyond a reasonable doubt standard. (See Stewart, supra, 16 Cal.3d at p. 141
[“‘[A] defendant has a constitutional right to have the jury determine every material issue
presented by the evidence,’ [Citation.] An erroneous failure to instruct on an affirmative
defense relied upon by the defendant constitutes a denial of this right.’”]; cf. People v.
Ahmed (2018) 25 Cal.App.5th 136, 138 & 144 [trial court’s erroneous ruling barring
defendant from asserting statutory defense to criminal prosecution reviewed under
Chapman].) We need not determine the proper standard of review because the
instructional error was not harmless even under the more lenient Watson standard.
              An instructional error is prejudicial under Watson if there is a reasonable
probability that a result more favorable to the defendant would have been reached in the
absence of the error. The “‘probability’ in this context does not mean more likely than
not, but merely a reasonable chance, more than an abstract possibility.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
              Here, Toledano’s files show he conducted an extensive interview of
Roberts and met with Roberts on multiple occasions. The record also establish Toledano
received information, such as photographs and memorabilia, that supported Roberts’s
version of events. As late as May 13, 2008, Toledano referenced the defamation lawsuit
in a letter to Roper. On these facts, a reasonable jury could find that when Toledano

                                             19
issued his threats on May 28, 2018, Toledano was seriously considering and
contemplating in good faith litigation against Mrs. M., and he made the threats to settle
that anticipated litigation. The jury, however, was never informed that conduct otherwise
criminal is permitted if it falls within the litigation privilege. It never had the opportunity
to decide whether the litigation privilege applies to protect Toledano’s statements. On
this record, there is a reasonable chance the jury would have rendered a more favorable
verdict for Toledano had it been properly instructed that the litigation privilege could
protect Toledano’s communications. Thus, the error is prejudicial even under the Watson
standard. 3
                                              III
                                        DISPOSITION
              The judgment is reversed.




                                                    ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




3
   In light of our holding, we need not reach Toledano’s arguments concerning other
purported instructional errors.

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