People v. Toledano

• Decision Date: 24 June 2019
• Docket Number: G051787
• Citation: 249 Cal.Rptr.3d 100,36 Cal.App.5th 715
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James TOLEDANO, Defendant and Appellant.

36 Cal.App.5th 715

249 Cal.Rptr.3d 100

The PEOPLE, Plaintiff and Respondent,

v.James TOLEDANO, Defendant and Appellant.

G051787

Court of Appeal, Fourth District, Division 3, California.

Filed June 24, 2019

Thea Greenhalgh and Correen Ferrentino, Costa Mesa, 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.

OPINION

ARONSON, J.

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.

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.

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.

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 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...