[CERTIFIED FOR PARTIAL PUBLICATION
Defendants Adam Daniel Anaya and Eric Thomas Wolfe were tried together in the Superior Court of Tulare County on various criminal charges stemming from their forceful attempts to collect a criminal street gang debt. After their convictions, defendants were sentenced separately and appealed separately. Following consolidation of their appeals, defendants contend (1) the convictions must be reversed because (a) the jury was provided conflicting instructions on the manner to assess the key witness's credibility, and (b) juror misconduct; (2) there is insufficient evidence to support (a) the extortion convictions, (b) the dissuading a witness convictions, and (c) the one battery conviction; (3) the life terms imposed for the extortion and the dissuading a witness convictions are not authorized; (4) as defendants have been improperly convicted of both robbery and receiving stolen property, the convictions for receiving stolen property must be reversed; (5) this case must be remanded for the trial court to impose or strike the gang enhancements to the term for the burglary convictions and the receiving stolen property convictions; and (6) multiple enhancements for one prior serious felony conviction are not authorized, and only one stayed prior prison term should appear on the abstracts of judgment. As outlined below, we agree with defendants' contentions (3), (4), (5), and (6). Accordingly, the judgments are reversed in part and affirmed in part.
In a first amended information, both defendants were alleged to have committed the crimes of extortion (Pen. Code,
During trial, the dissuading a witness or victim offenses (counts 5 & 8) were amended to allege violations of subdivision (b)(1) of section 136.1, and the assault likely to produce great bodily injury offense (count 4) was reduced to a battery (§ 242).
Following an eight-day trial, defendants were convicted on all counts. In bifurcated proceedings, defendant Anaya admitted the prior conviction allegations and the trial court found the prior strike and serious felony allegations against defendant Wolfe to be true.
On October 21, 2011, defendant Anaya was sentenced to a total of 30 years to life on count 3, plus five years for the prior serious felony conviction. Additional terms were imposed on the remaining counts, to be served either concurrently or stayed pursuant to section 654.
On November 7, 2011,
On December 13, 2011, defendant Wolfe was also sentenced to a total of 30 years to life on count 3, plus five years for the prior serious felony conviction. The sentences imposed on the remaining counts and special allegations were imposed concurrently or were stayed.
Facts Specific to the January 2010 Incident
Eric Dahlberg lived across the street from his friend Roy Gomez in Tulare. On January 31, 2010, Dahlberg called 911 after he became concerned about a number of people he observed at Gomez's home. He had never seen these six or so men at his neighbor's home before. Gomez and the others were standing near the driveway and appeared to be talking. But then Gomez started backing up and the others were getting closer, "kind of circling around him." Dahlberg thought it was a "little suspicious." Gomez had backed up to the garage door and put his hands up. Shortly thereafter, Gomez's cousin came out from inside the house.
Although Dahlberg could not hear what was being said, he could see clearly. He focused on one person who appeared older and "darker." That individual stood out and seemed like he was telling the others what to do. He made lots of hand gestures: when he pointed to the curb, two individuals went to the curb; when he pointed to the house, everyone else went inside.
By the time the police arrived in response to his call, Dahlberg was at the back of his house. Because he could not clearly see individual faces, he could not identify anyone other than Gomez and his cousin. Later, Gomez came to Dahlberg's door. He was "breathing hard" and was "acting shocked."
Another neighbor, Richard Hernandez, was outside working on his truck that same day. He recalled seeing "a bunch of guys" pull up in a couple of cars. He figured they were friends of Gomez's. It was not unusual until he noticed the group had Gomez backed up against the garage door. There were six or seven men, most of whom were young. Two were older and one stood out because he was the only one talking and everyone else surrounded him. Hernandez could not decide if that man was African-American or a dark complexioned Hispanic. That man was loud, "running his mouth," yelling and screaming.
When Hernandez gave his statement to police, his memory was fresh; he told the truth. He told Detective Jesus Guzman that the darker man had told Gomez's cousin, "This doesn't concern you. Get out of here." He recalled seeing the darker man on his cell phone; he wore a red hat. Gomez's cousin told the darker man that he did not have much money, but that he could take what he had. Hernandez recalled telling the detective that he saw "a larger white guy try to strike" Gomez.
In January 2010, Norteno gang member A.T. was living with his aunt, uncle, and cousin Roy Gomez in Tulare. In response to a midmorning knock, A.T. answered the door to find a man he believed to be John Delgado
A.T. resumed speaking on the telephone with his girlfriend. Eventually, he heard people talking loudly or shouting. He hung up the telephone, assuming there was an argument, and went outside.
Once outside, A.T. found his cousin with his back to the garage. About seven people were encircling him. Gomez's hands were out (palms out at shoulder height) in front of him. He seemed scared and confused. Those surrounding Gomez were later identified as Wolfe, Anaya, Steven Delgado, Robert Pompa and others. Wolfe was standing "kind of offset"; A.T. had never met Wolfe but knew who he was.
Realizing the argument was about a debt
About this same time, the police knocked on the door. The officers had everyone exit the back room with their hands up. Identification was checked and names were taken. A.T. gave the officers a false name because he had violated his parole.
After the police left, Wolfe, who did most of the talking, told A.T. what was going to happen. Wolfe said A.T. owed $5,000, it needed to be paid, and they would be taking items with them. He was reminded that he knew "what happens" to people who do not "pay up." He would be given a phone number for "Pablo." He was to call Pablo in an hour to receive additional information about whom to pay. A.T. told Wolfe he would do his best to pay the debt. Thereafter, A.T.'s belongings were loaded into a white or cream-colored Chevrolet Blazer, including computers, printers, hard drives and keyboards. He did not give anyone permission to take the items.
After Wolfe, Anaya and the others left, A.T. called the telephone number he was given for Pablo. He recognized the voice on the other end as that of Wolfe. A.T. was told to call the number the following day about a meeting. The next day, he called Pablo's number again; Wolfe answered. Wolfe advised A.T. that he would be picked up in 30 minutes; however, a few moments later, Wolfe called back. A.T. was advised they were waiting for him outside.
A.T. went outside and got into the car as requested. Wolfe was driving, Pompa was the front seat passenger, and Delgado was in the back. They went to what A.T. assumed was Pompa's home. Pompa offered him a beer, but he declined. He was nervous and fearful. Wolfe advised him he had 29 days within which to pay back $5,000. Although A.T. had borrowed $3,000, the amount increased significantly because of "fines." A.T. asked that his belongings be returned, but Wolfe denied the request. A.T. also asked if he could
Despite having no job
Three or four days later, A.T. was arrested for absconding from parole and was taken to jail. Although he did not want to tell police about what had happened, and knew he was risking his life by doing so, A.T. also feared what would happen when the debt repayment deadline expired. He gave a statement to Detective Guzman and received protective custody.
While serving time in jail, A.T. was transported to the Bob Wiley Detention Facility. On a bus returning from court, Wolfe was seated behind him. Wolfe told him "not to do it," and that he could fix everything, including A.T.'s status with the gang. Wolfe offered A.T. a car and some money not to say anything. A.T. did not believe him. On another occasion, as he and Detective Guzman passed Wolfe in a cell, Wolfe said, "Don't do it A."
A.T. is still afraid because he still owes money. By testifying, he is considered to be "telling on" defendants and "the whole rest of the gang."
Tulare Police Officer Jeremy Faiman testified that on January 31, 2010, about 1:10 p.m., he responded in a marked K9 patrol unit to a possible home invasion in progress. As he approached the home, he observed two subjects standing out front, looking up and down the street. After calling for additional units, he contacted those subjects, who were identified as Manuel Rubio and Mario Duarte. As he directed Rubio and Duarte to sit down with their hands in sight, Roy Gomez exited the home, quickly shutting the door behind him. Gomez consented to a look around the house, indicating a couple "homies" were inside. He was nervous.
While the police were present, no one in the home said anything about a crime being committed. They said "everything was cool, they didn't need any police assistance." Officer Faiman did not notice any computer equipment, but he was not looking for it. His focus was on the people inside. The television was not on, there was no beer in view, nor was there any food being prepared or grilled at the home. Thereafter, the investigation concluded and the officers left the residence.
Roy Gomez testified that he was living with his parents and cousin in January 2010. He recalled the day the police came to the house. A couple of friends had come over to watch football and "hang out." He could not recall everyone's name.
Everyone arrived at the same time because Gomez recalled hearing the doorbell. He believed he answered the door and went outside to speak with them first. Everyone greeted one another, "nothing really serious." Then, with the exception of a few people who had stayed outside to smoke, the group headed inside. They had only been sitting down and watching television for two to three minutes when the police arrived. Gomez could see through the front window when the police arrived, and he went outside to see what the problem was.
The police advised him they had been sent about "a burglary or something going on." Gomez did not want the police to go inside his home, but he did acknowledge he was on parole and thus subject to search. He told the police there was no reason for them to go inside. He sat outside on the curb while
His cousin A.T. had a lot of computers. A.T. tried to sell everything he had that day, and did sell a computer to Wolfe after the police left. A.T. carried the computer he sold to Wolfe out to Wolfe's white Blazer.
Gomez stated there had not been any dispute or argument that day, nor did any physical violence occur. He did not know if he talked to Detective Guzman after his cousin's arrest. At the police station, Gomez "pled the right to remain silent," so he did not give a statement.
Although he used to be a gang member, Gomez was no longer a gang member because he "grew out of it." And he just "hung out" with the West Side Tulare Nortenos. Gomez has three felony convictions, the last in 2005.
Jaime Rodriguez testified for the defense. In January 2010, he recalled walking on the street in Tulare on his way to see his friend Isabel. He saw two friends standing outside a house he later learned belonged to Gomez. He stopped to say hello to Manuel Rubio and Mario Duarte. They spoke for a few minutes and then Gomez invited them inside to watch the polo game and to barbeque. There were no arguments, fights, or disagreements. They watched the polo game for a few minutes before the police arrived. They had gone into a back room to smoke the marijuana Rodriguez had with him. They also looked at some computers; A.T. offered to sell the computers. The police arrived, but after checking everyone's identification, they left. Rodriguez then left because he was nervous. He was on probation and did not want to go back into custody.
On February 4, 2010, Tulare police officers conducted a probation compliance check at a residence in Tulare. The officers were going to attempt to take Wolfe into custody. No one responded to the front door. Helicopter surveillance, however, noted someone leaving through the back. After a vehicle pulled out of the garage, a traffic enforcement stop was conducted on a white
Detective Guzman with the Tulare County Police Department was assigned to investigate an incident involving A.T. Related thereto, on February 4, 2010, Wolfe and Anaya were taken into custody. Following Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) warnings, Anaya gave a recorded statement. He indicated he was helping his girlfriend's uncle — Robert Pompa — pick up and load some computer equipment. He recalled carrying out a monitor and keyboard from inside a home. Anaya admitted knowing Delgado. He denied being a gang member himself, but acknowledged associating with Northerners, or Nortenos.
On February 5, 2010, Detective Guzman responded to the main jail. He and Deputy Flores were walking with A.T. Passing Wolfe's cell, he heard Wolfe say, "[D]on't do it A[.], don't do it."
During the investigation Detective Guzman listened to more than 10 calls made from the Tulare County Sheriff's Department pretrial facility. He recognized the persons speaking in those phone calls as Wolfe, his girlfriend Desiree Villareal, and Wolfe's stepbrother Dexter Rabadan. Several of the recorded phone calls were played for the jury.
Facts Relevant to the Gang Allegations
Patrick O'Donohoe is a peace officer with the City of Tulare. While on duty on November 20, 2006, O'Donohoe came into contact with Anaya. At the time, Anaya was wearing blue jeans, a gray sweatshirt, and white shoes with red shoe laces, a red belt, and a red and black '49ers beanie.
Tony Espinoza is a detective with the Tulare Police Department assigned to the gang unit. On July 16, 2009, the detective came into contact with Mario Duarte and Manuel Rubio. Duarte and Rubio, accompanied by Johnny Hernandez, were sitting on a park bench in Tulare. Duarte was photographed wearing various items of red clothing. There was writing or gang graffiti on the table in red ink, and each of the individuals had a red permanent ink marker in his possession.
Detective Guzman was designated a gang expert. He estimated there were over 400 active gang members in Tulare. He described the formation of the Norteno gang and the signs and symbols related to the gang. The gang's activities included assaults, assaults with a deadly weapon, robberies, drug sales, and weapons possession. Guzman also testified to predicate offenses, gang packets, and the gang modules at the Bob Wiley Detention Facility.
In Detective Guzman's opinion, Wolfe is an active Northerner gang member and was on January 31, 2010. His opinion is based upon police reports, arrests, contacts, jail housing assignments, and information known to the department.
It is also the detective's opinion that Anaya is an active Northerner gang member and was on January 31, 2010. Guzman's opinion is based on the fact he asked Anaya if he was a gang member and Anaya responded, "`I guess so.'" His opinion is also based on Anaya's jail housing assignment and the fact that San Francisco '49ers clothing is typically worn as a symbol of the Northern gang.
Detective Guzman was also of the opinion that Delgado, Pompa, Duarte, Rubio and Rodriguez were all active gang members. Further, the detective believed A.T. was a gang member until January 31, 2010. He was no longer a gang member because he failed to pay his debt and because A.T. was considered a "rat" for telling the police about a crime committed by a fellow gang member.
Presented with a hypothetical situation involving similar facts, Detective Guzman believed the type of crimes alleged to have been committed would have been committed at the direction of and for the benefit of the Norteno criminal street gang. Additionally, those crimes would have been committed in association with the Norteno criminal street gang and furthered its objectives.
Defense expert Albert Ochoa, a behavioral interventionist, worked at a charter school in Visalia. He met with students, including those involved in gangs, every day. His past experience as executive director of a community
Following his interviews with Wolfe and Anaya, and his review of the materials provided by Wolfe's attorney, Ochoa concluded that Wolfe and Anaya associate with the gang. In his opinion, they are not active gang members.
On cross-examination, Ochoa indicated that a photograph of Anaya wearing items of red clothing, taken during a 2006 contact with law enforcement, would not change his opinion that Anaya was not a gang member because the photo was six years old. Ochoa indicated he had not listened to the phone call between Wolfe and his half brother so that fact was not considered for purposes of his opinion. Ochoa acknowledged that he is paid to testify. He further acknowledged that were he to have found Wolfe and Anaya to be active gang members, he would not have been paid. Ochoa could not opine as to whether Delgado, Pompa and the others were gang members because he did not interview them. Ochoa agreed that an associate of the gang does not "call shots." He further agreed that if someone "pleads to a crime" and admits a related gang enhancement, he would opine that individual is an active gang member.
III. Sentencing Issues
Defendants contend the court committed Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) error when it sentenced them to life terms on counts 1 and 5 pursuant to section 186.22, subdivision (b)(4)(C).
A. Relevant Authorities
In a recent decision, issued after briefing had been completed in this matter, the United States Supreme Court determined that facts that increase a mandatory minimum sentence must be submitted to the jury. (Alleyne v. United States (2013) 570 U.S. ___ [186 L.Ed.2d 314, 133 S.Ct. 2151] (Alleyne).) In so holding, the court overruled its earlier contrary decision in Harris v. United States (2002) 536 U.S. 545 [153 L.Ed.2d 524, 122 S.Ct. 2406].
In Alleyne, the jury convicted the defendant of robbery affecting interstate commerce (18 U.S.C. § 1951(a)) and using or carrying a firearm in relation to a crime of violence (18 U.S.C. § 924(c)(1)(A)). Using or carrying a firearm subjects an offender to a term not less than five years, brandishing the firearm subjects an offender to a term not less than seven years, and discharging the firearm subjects an offender to a term not less than 10 years (18 U.S.C. § 924(c)(1)(A)(i)-(iii)). More specifically, the jury's verdict indicated the defendant had used or carried a firearm during the commission of the offense. (Alleyne, supra, 570 U.S. at pp. ___ - ___ [133 S.Ct. at pp. 2155-2156].)
The presentence report recommended a seven-year sentence, which reflected the mandatory minimum sentence relative to an offender who had brandished a firearm during commission of the offense. Alleyne objected to the recommended seven-year term, contending it would violate his Sixth Amendment right to a jury trial as the jury did not find brandishing beyond a reasonable doubt. The district court, however, relied upon Harris v. United States in overruling Alleyne's objections, explaining that brandishing was a sentencing factor it could properly find by a preponderance of the evidence. Thus, it imposed the seven-year term. The court of appeals affirmed. (Alleyne, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2156].) In reversing, the Supreme Court stated: "In Apprendi, we held that a fact is by definition an element of the offense and must be submitted to the jury if it increases the punishment above what is otherwise legally prescribed. [Citation.] While Harris declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi's definition of `elements' necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and
Subdivision (b) of section 186.22 concerns increased terms of imprisonment when the jury finds that a crime is committed for the benefit of a criminal street gang. When applicable, subdivision (b)(1) imposes an additional term of imprisonment when a defendant is convicted of a felony and the jury determines the crime was committed for the benefit of a criminal street gang. It begins by stating, "Except as provided in paragraphs (4) and (5), any person who is convicted of a felony" committed for the benefit of a criminal street gang shall receive the following sentence enhancements: (1) an additional term of two, three, or four years if only the enhancement is found true (§ 186.22, subd. (b)(1)(A)), (2) an additional term of five years if the felony is a serious felony as defined in section 1192.7, subdivision (c) (§ 186.22, subd. (b)(1)(B)), or (3) an additional term of 10 years if the felony is a violent felony as described in section 667.5, subdivision (c) (§ 186.22, subd. (b)(1)(C)). Subdivision (b)(2) and (3) of that section assists the trial court in determining which term of the sentencing triad should be imposed when the court has discretion to choose the additional term.
On the other hand, subdivision (b)(4) of section 186.22 requires the trial court to impose a term of life in prison instead of the sentence otherwise required by law for the following crimes: home invasion (§ 213), carjacking (§ 215), felony shooting at an inhabited building (§ 246), infliction of great bodily injury while discharging a firearm from a vehicle in the commission of a felony (§ 12022.55), "extortion, as defined in Section 519; or threats to victims and witnesses, as defined in Section 136.1." (§ 186.22, subd. (b)(4)(B), (C).)
When imposing the indeterminate term of life in prison, the trial court must choose a minimum sentence that is the greater of two alternatives. The first alternative is the term that would otherwise be imposed pursuant to section 1170 for the underlying conviction, including any enhancements. (§ 186.22, subd. (b)(4)(A).) The second alternative depends on the crime committed. The minimum term is 15 years if the crime is a home invasion (§ 213), carjacking (§ 215), felony shooting at an inhabited building (§ 246), or if the defendant inflicts great bodily injury while discharging a firearm from a vehicle in the commission of a felony (§ 12022.55). (§ 186.22,
Count 5 charged defendants with dissuading a witness in violation of section 136.1, subdivision (b)(1), by unlawfully attempting to prevent and dissuade A.T. from reporting a crime to law enforcement. Count 1 charged defendants with extortion in violation of section 518. It was further alleged as to both counts that defendants committed the offenses "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members." Additionally, it was alleged the offenses caused "the sentencing to be pursuant to section 186.22(b)(4)."
The verdicts found defendants guilty of "Dissuading a Witness From Reporting a Crime, to wit [A.T.], a violation of ... Section 518 [sic: 136.1, subd. (b)(1)]" as charged in count 5. The jury also found the enhancement true: "We, the Jury, further find to be true the special allegation that said offense was COMMITTED FOR THE BENEFIT OF, AT THE DIRECTION OF, OR IN ASSOCIATION WITH A CRIMINAL STREET GANG...." The jury returned a guilty verdict on count 1 that read:
"We, the Jury, find the Defendant guilty as charged in Count 1 of the First Amended Information, to Extortion by Threat or Force of [A.T.], a violation of ... section 518 which occurred on or about January 31, 2010.
"We, the Jury, further find to be true the special allegation that said offense was COMMITTED FOR THE BENEFIT OF, AT THE DIRECTION OF, OR IN ASSOCIATION WITH A CRIMINAL STREET GANG, within the meaning of ... sections 186.22(b)."
The trial court imposed sentences of 14 years to life for the convictions as charged in count 5 and count 1. The base term was seven years to life, which was doubled because each defendant had suffered a prior "strike" conviction within the meaning of section 667, subdivision (e).
C. The Terms Imposed for Witness Intimidation
Defendants argue they were convicted only of attempting to dissuade a witness from reporting a crime, rather than attempting to dissuade a witness from reporting a crime with threats. The People assert that because the phrase "threats to victims and witnesses" refers to section 136.1, any conviction pursuant to this section permits imposition of the indeterminate sentence of life with a minimum term of seven years.
Subdivision (b)(1) of section 136.1 provides that anyone who attempts to prevent or dissuade another person who has been the victim of a crime from reporting a crime to law enforcement is guilty of an offense that may be punished as either a misdemeanor or a felony. It also specifically names subdivision (c) as an exception to its provisions.
As explained above, defendants were alleged to have violated section 136.1, subdivision (b)(1), attempting to dissuade a victim of a crime from reporting a crime to law enforcement. The amended information did not charge defendants with using an express or implied threat of force. The instructions also did not inform the jury it must find defendants used an express or implied threat of force.
Although the intent of section 186.22, subdivision (b)(4) is to increase the punishment for gang-related crimes,
D. The Terms Imposed for Extortion
Similarly, defendants contend the life terms imposed for the extortion convictions are not authorized because the jury did not find the crime of extortion was committed by means of fear induced by threat. They further argue the errors are not harmless.
In the first amended information, defendants were charged, in pertinent part, as follows: "COUNT 1 [¶] On or about January 31, 2010, in the County of Tulare, the crime of EXTORTION, in violation of ... SECTION 520, a FELONY, was committed by [defendant] WOLFE and [defendant] ANAYA, who did unlawfully extort money and other property from [A.T.], by means of force and threat such as is mentioned in Section 519." The jury was instructed with CALCRIM No. 1830, Extortion by Threat or Force.
Section 518 defines extortion as the "obtaining of property from another, with his consent ... induced by a wrongful use of force or fear...." Section 519 defines fear for purposes of the crime of extortion: "Fear, such as will
Essentially, on appeal defendants argue that because the verdict forms specifically referenced section 518, rather than section 519, the sentences imposed are unauthorized. Defendants argue there exists a distinction between "means of force" and "means of a threat" for purposes of the applicability of either subdivision (b)(1)(C) or (b)(4)(C) of section 186.22.
Defendants were alleged to have committed the crime of extortion pursuant to section 518, although the information specifically references sections 519 and 520. Section 518 requires a finding of the use of force or fear induced by threat. The jury was instructed with CALCRIM No. 1830, which expressly provided the People must prove the defendants "threatened to unlawfully injure or used force" and "[w]hen making the threat or using force, the defendant intended to use that fear or force" to obtain consent, and that as "a result of the threat or use of force, the other person consented to give the defendant money or property," and that as a result of that same "threat or use of force" the victim gave the defendant money or property. The jury's verdicts found defendants guilty "as charged in Count 1 of the First Amended Information," "Extortion by Threat or Force ... a violation of ... section 518...." Here, too, the jury did not make the required factual findings pertaining to fear necessary to permit the trial court to impose the alternative sentence pursuant to section 186.22, subdivision (b)(4)(C).
Under Apprendi, the court could not properly impose sentences under this statute without findings by the jury that the elements were met. Because the jury was instructed on extortion under two theories — force or fear — and was not required to find that the extortion was based on threats inducing fear, it did not necessarily find this element true when it rendered its verdicts in count 1.
We cannot say the error in sentencing the defendants under section 186.22, subdivision (b)(4)(C) was harmless beyond a reasonable doubt. Without a specific finding, we can only speculate which theory the jury accepted as true, or whether it accepted both theories. If we were to engage in such speculation, however, we would conclude it is unlikely the jury found the extortion conviction based on a threat inducing fear. Instead, the evidence established that the victim handed over the money in his possession after one of the perpetrators punched him in the face. This was also the theory the People argued to the jury. Consequently, the sentences imposed on count 1 must be vacated and the matter remanded for resentencing under section 186.22, subdivision (b)(1)(C).
The convictions for receiving stolen property (§ 496, subd. (a); count 7) are reversed. Additionally, the matter is remanded for resentencing on count 5 (§ 136.1
Poochigian, Acting P.J., and Franson, J., concurred.
"To prove that a defendant is guilty of this crime, the People must prove that:
"1. The defendant threatened to unlawfully injure or used force against another person or a third person;
"2. When making the threat or using force, the defendant intended to use that fear or force to obtain the other person's consent to give the defendant money or property;
"3. As a result of the threat or use of force, the other person consented to give the defendant money or property;
"4. As a result of the threat or use of force, 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 or use of force 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."
In a petition for rehearing, defendant Wolfe for the first time asks this court to remand the matter for resentencing on count 8. He notes the analysis applied to count 5 applies with equal force to count 8, which also charged a violation of section 136.1. Rather than grant the relief requested because the People have been given no opportunity to address this issue, we will direct the trial court on remand to consider the propriety of its sentence with respect to defendant Wolfe on count 8 in the first instance, in light of our discussion and analysis with respect to count 5.