California Court of Appeals, Fourth District, Third Division
from a judgment of the Superior Court of Orange County No.
10ZF0084 John Conley, Judge. Reversed.
Greenhalgh and Correen Ferrentino, under appointments by the
Court of Appeal, for Defendant and Appellant.
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
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
and Procedural Background
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.
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.
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
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.”
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
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 ...