People v. Sorto CA4/1

Filed 3/10/21 P. v. Sorto CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076931
Plaintiff and Respondent,
v. (Super. Ct. No. SCN385059)
JOSE ANTONIO SORTO, JR.,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
William Y. Wood, Judge. Affirmed as modified.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.

Defendant Jose Antonio Sorto, Jr. gave his roommate Freddy G. a
difficult choice: steal an expensive surveillance system or get stabbed. Sorto
and his gang associate Angel Coronado drove Freddy to three different stores,
but Freddy was too afraid to follow through on the instructions and finally
managed to flee from the third store. Sorto later tried to silence Freddy and
Coronado through third parties both before and after his arrest. A jury
convicted him of multiple felonies, resulting in a lengthy prison term.
On appeal, Sorto argues he received constitutionally ineffective
assistance of counsel under McCoy v. Louisiana (2018) 584 U.S. ___ [138
S.Ct. 1500] (McCoy) based on comments made by his trial attorney during
closing arguments. We reject this claim, concluding no concession of guilt in
fact occurred. Sorto also challenges his attempted extortion conviction (Pen.

Code,1 § 524), claiming in essence that Freddy could not validly consent to
hand over property he had yet to steal. Although this presents a more
challenging issue of statutory interpretation, we ultimately reject this claim
as well, finding it sufficient that Sorto ultimately sought property from
Freddy’s coerced theft. (See People v. Harper (2020) 44 Cal.App.5th 172, 191
(Harper).) Modifying the judgment to stay his sentence for attempted
extortion pursuant to section 654 and correcting a clerical error found in the
judgment minute order, we otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sorto was a member of the Vista Home Boys gang. Coronado, a gang
associate, sometimes stayed at Sorto’s apartment and worked as a drug
runner. Freddy, who was not a gang member, helped Sorto sell
methamphetamine in exchange for a place to stay. The three men were
frequent methamphetamine users and would use drugs together.
On March 21, 2018, Sorto accused Freddy of stealing drugs from him
and sexually assaulting a woman. Although Freddy denied those
accusations, Sorto forced him into Sorto’s car and offered two options: steal a

1 Further undesignated statutory references are to the Penal Code.

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surveillance system or be stabbed with a knife. Sorto and Coronado drove
Freddy to two different electronics stores, but Freddy was too afraid to follow
through with the proposed theft. Offered one final chance, Sorto drove to
Walmart and made Freddy leave his cell phone behind. Inside the store,
Freddy explained his predicament to a store manager and asked him to call
911. When Freddy did not exit the store or return to Sorto’s apartment, Sorto
and Coronado surmised that he was cooperating with law enforcement.
Posting messages to Freddy’s social media account, Sorto painted him as a
traitor who had taken advantage of women and underage girls.
Two days later, Sorto used Freddy’s phone to send a message to one of
Freddy’s friends, Susana C. Acting as if he were Freddy, Sorto suggested a
play date with Susana’s children outside a fast food restaurant. After Susana
arrived and parked in a stall, a vehicle boxed her in from behind. Leaning on
Susana’s car, Sorto asked her if she had seen Freddy. He eventually left,
allowing her to leave.
Deputies searched Sorto’s apartment on April 4 and discovered around
18 grams of methamphetamine, a digital scale, and several pipes. Stored on
Sorto’s cell phone were photos and video suggesting drug transactions.
After his arrest in early May, Sorto tried to pressure Freddy from jail
through third parties to drop the charges. In mid-May, he tried multiple
times through intermediaries to forcibly pressure Coronado (who had also
been arrested) to stop cooperating with law enforcement.
The San Diego County District Attorney charged Sorto by information
with a panoply of offenses: kidnapping for extortion of Freddy (§ 209, subd.
(a), count 1); simple kidnapping of Freddy (§ 207, subd. (a), count 2); second
degree robbery of Freddy’s cell phone (§ 211, count 3); making a criminal
threat against Freddy (§ 422, count 4); attempted extortion of Freddy (§ 524,

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count 5); false imprisonment by menace of Susana (§§ 236, 237, subd. (a),
count 6); possessing a controlled substance for sale (Health & Saf. Code,
§ 11378, count 7); attempting to dissuade a witness (Freddy) (Pen. Code,
§ 136.1, subd. (a)(2), count 9); and attempting to dissuade a witness
(Coronado) by means of force or threat (§ 136.1, subds. (a)(2) & (c)(1), count

10).2 A deadly weapon use allegation was added to all counts except 6 and
10. (§ 12022, subd. (b)(1).) In addition, as to all counts except count 8, a
criminal street gang enhancement was pled. (§ 186.22, subd. (b)(1).) Finally,
Sorto was alleged to have one prior serious felony conviction constituting a
strike (§ 667, subds. (a) & (b)−(i)), and two prior prison terms (§ 667.5, subd.
(b)).
In March 2019, the jury acquitted Sorto on count 3 and found the gang
allegation accompanying count 6 “not true.” It was unable to reach a verdict
on the kidnapping charges (counts 1 & 2) and on the gang allegation
accompanying count 9. But it convicted Sorto as charged on counts 4, 5, 6, 7,
9, and 10 and found the attendant allegations (with the exception of the
already referenced gang allegations on counts 6 and 9) true. In a bifurcated
priors trial, the court found the prior strike allegation to be true. It then
granted the prosecution’s request to dismiss the two kidnapping counts on
which the jury hung.
At sentencing, the court denied Sorto’s motion to strike the prior strike
conviction (§ 1385, subd. (a); People v. Superior Court (Romero) (1996) 13
Cal.4th 497) and imposed a total term of 19 years and 4 months, plus 14
years to life in state prison.

2 Sorto was not bound over on count 8 of the felony complaint, which
alleged simple possession of a controlled substance in violation of Health and
Safety Code, section 11377, subdivision (a).
4
 DISCUSSION
Sorto attacks his convictions on count 6 (false imprisonment of Susana)
and count 10 (forcibly dissuading Coronado from testifying), contending that
a Sixth Amendment violation occurred when his counsel conceded guilt
during closing arguments. He challenges his conviction on count 5 on a
different basis, arguing a surveillance system that Freddy had yet to steal
could not be the subject of attempted extortion. We address each of these
arguments in turn, rejecting both.
Sorto raises two additional contentions with respect to his sentencing.
As to the first, we agree that section 654 precludes separately punishing
Sorto for both making a criminal threat (§ 422, count 4) and an attempted
extortion based on the same threat (§ 524, count 5). We likewise accept
Sorto’s request to correct a clerical error in the sentencing minutes.
1. McCoy Error (Counts 6 and 10)
Prior to sentencing Sorto’s counsel moved for a new trial. Citing a
decision issued by this court after closing argument (People v. Flores (2019)
34 Cal.App.5th 270 (Flores)), he expressed concern that he had conceded
elements of counts 6 and 10 in violation of McCoy, supra, 138 S.Ct. 1500
without advising Sorto in advance or obtaining his consent. Finding that a
conflict had emerged between defense counsel and his client, the court
appointed substitute counsel. Sorto then submitted a declaration denying
prior awareness or giving prior consent to a concession strategy. The trial
court heard arguments but denied the motion, expressing skepticism as to
whether McCoy applied where Sorto never objected during trial to his
counsel’s closing remarks or filed a Marsden motion. Even if McCoy applied,
the court did not believe defense counsel actually conceded guilt on counts 6
or 10 during his closing argument.

5
 Reprising his new trial arguments, Sorto contends his convictions on
counts 6 and 10 must be reversed because his counsel impermissibly
conceded guilt on those charges during closing remarks. The People disagree.
Consistent with the trial court’s ruling denying Sorto’s new trial motion, they
suggest Sorto cannot assert this claim when he failed to object until after
trial. Moreover, they argue counsel did not actually concede guilt on those
counts. We accept the latter point, avoiding the need to reach the former.
Reading his entire closing argument in context, defense counsel did not
actually concede guilt on either count, meaning that McCoy is not implicated.
A criminal defendant has a Sixth Amendment right to the assistance of
counsel; the term assistance conveys that the accused is the master of his or
her defense. (Flores, supra, 34 Cal.App.5th at p. 276; McCoy, supra, 138
S.Ct. at p. 1505.) While trial management decisions (such as whether to
object to certain evidence) are left to counsel, “[u]nder McCoy, defense
lawyers must allow their clients to dictate the fundamental objective at trial,
and must not concede the actus reus of a charged crime over a client’s
objection.” (Flores, at p. 277, citing McCoy, at p. 1508.) “Presented with
express statements of the client’s will to maintain innocence, . . . counsel may
not steer the ship the other way.” (McCoy, at p. 1509.) At the same time, “[i]f
a client declines to participate in his defense, then an attorney may
permissibly guide the defense pursuant to the strategy she believes to be in
the defendant’s best interest.” (Ibid., citing Florida v. Nixon (2004) 543 U.S.
175, 189 (Nixon).) If McCoy error is found, it is structural in nature and
compels reversal. (McCoy, at p. 1511.)
Since the United States Supreme Court decided McCoy, supra, 138
S.Ct. 1500, California courts have grappled with what a criminal defendant
must do to preserve his or her constitutional claim. McCoy error has been

6
found where a defendant expressly objected to counsel’s concessions and
stated his desire to maintain innocence. (Flores, supra, 34 Cal.App.5th at
pp. 280−283; People v. Eddy (2019) 33 Cal.App.5th 472, 482−483.)
Conversely, no error has been found where the record does not suggest the
defendant ever opposed his counsel’s concession strategy or expressed a
desire to assert innocence. (People v. Franks (2019) 35 Cal.App.5th 883, 891;
People v. Bernal (2019) 42 Cal.App.5th 1160, 1166; People v. Palmer (2020)
49 Cal.App.5th 268, 283; In re Smith (2020) 49 Cal.App.5th 377, 390.) While
it is clear that no constitutional violation occurs if a client is informed of
defense counsel’s proposed strategy but declines to participate in his or her
defense (Nixon, supra, 543 U.S. at p. 189), it is less clear whether a defendant
who is unaware of counsel’s concession strategy but has expressed a desire to
maintain innocence must object in the midst of closing argument to preserve

a Sixth Amendment claim.3 Nevertheless, we need not resolve that question
as a closer examination of the record indicates that no concession actually
occurred.
“Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument.” (People v. Centeno (2014) 60
Cal.4th 659, 666.) Where a defendant claims on appeal that a prosecutor
committed error during closing arguments, “the defendant must show that,
‘[i]n the context of the whole argument and the instructions’ [citation], there

3 In moving for a new trial, Sorto’s trial counsel submitted a declaration
indicating that he had secured his client’s express consent to concede guilt on
count 7, the drug possession for sale charge. But, as he explained, he did not
advise Sorto of his proposed strategy on counts 6 or 10 prior to his closing
argument. The court later relieved trial counsel and appointed substitute
counsel to argue the new trial motion. In a subsequent declaration, Sorto
stated he “was never advised” that trial counsel would be conceding guilt on
counts 6 and 10, “adamantly denied” guilt as to both counts, and advised
counsel of his position “before and during the jury trial.”
7
was ‘a reasonable likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.’ ” (Id. at p. 667.) Courts “ ‘do
not lightly infer’ that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.” (Ibid.) Although less
commonly argued, the same standard applies in evaluating claims of error by
defense counsel: we review the entire argument as a whole to evaluate if
there is a reasonable likelihood the jury understood them in an improper
manner. (See People v. Gurule (2002) 28 Cal.4th 557, 627 [“in the context of
counsel’s entire argument, he did not improperly argue against his client”];
People v. Samayoa (1997) 15 Cal.4th 795, 856 [finding “no reasonable
likelihood that the jury construed [defense counsel’s closing] remarks in a
manner prejudicial to defendant”]; see also People v. Williams (1997) 16
Cal.4th 153, 265 [although defense counsel’s strategy may have been weak or
even a bit bizarre, “it certainly falls short of conceding defendant’s guilt”].)
Applying that standard to our record, we agree with the trial court that
there was no concession of guilt on counts 6 or 10. While counsel’s argument
was perhaps meandering and disjointed, there is no reasonable likelihood the
jury understood it to concede guilt on either count.
Defense counsel began his closing remarks by grouping the charged
counts into three categories. First, there were a “bunch of counts” where the
prosecution’s case rested on the credibility of Freddy and Coronado—the
kidnapping, robbery, criminal threat, and extortion counts relating to the
attempted electronics heist, as well as the alleged false imprisonment of
Susana thereafter (counts 1‒6). Second, there was a drug count pertaining to
the search of Sorto’s apartment (count 7). Third, there were two counts of
dissuading a witness based on Sorto’s post-arrest jail calls (counts 9‒10). As
counsel explained, the question on counts 1 through 6 was not whether the

8
jury liked Sorto’s choices regarding drugs and gangs, but rather whether it
believed Freddy and Coronado.
With that framework, counsel first explored at length how Freddy was
a liar, a thief, and a drug dealer who could not be believed as to the
kidnapping, robbery, threat, and extortion counts. Cognizant of these
credibility gaps, the prosecution found it “necessary to enlist Angel Coronado”
knowing that Freddy would not be believed. But, as defense counsel
explained, Coronado could not be trusted either. In his interview with
detectives, he seemed to acquiesce rather than volunteer facts, suggesting he
was motivated to spin stories from fear of a life sentence. He was also a
heavy meth user, meaning “reality might be an issue for him.”
Defense counsel next suggested that there were discrepancies in
Coronado’s testimony itself. Whereas he testified at trial there was not
enough room for Susana to back out her vehicle around Sorto’s car, at the

preliminary hearing he indicated the opposite.4 He also changed his account
as to where the Wal-Mart was located, originally stating it was in Vista but
later saying it was in San Marcos when corrected by the prosecutor. These
flip flops suggested that Coronado was changing his tune to “get his version
in line with the prosecution’s” in hopes of a better deal.
Counsel then turned to the charge of false imprisonment (count 6). It is
here that Sorto contends an improper concession occurred. The full passage
suggests otherwise:
“I would suggest to you that Ms. C[.] seemed like a decent,
honest person and she was telling the truth, as she saw it.
[¶] Now, she was very much an emotional thinker, because
she said ‘I felt’ ‘I felt’ often. And I’m not saying she doesn’t

4 Coronado testified at trial that Susana was hemmed in. But he had
previously testified at the preliminary hearing that she could have left with
some difficulty.
9
 have a right to her feelings when a stranger is coming up to
her car asking where someone is. [¶] She said that they
went inside their pockets -- and even though she didn’t see
anything -- she interpreted that. Okay.
“Angel Coronado originally said there was enough room for
her to back out; she wasn’t imprisoned. [¶] Now, this is a
problem for both the prosecution and the defense because --
I think we have to be intellectually honest -- in counts 1[]
through 5 -- I don’t want to you to believe Angel Coronado,
I don’t find him trustworthy, I don’t think he is credible.
Well, then, that doesn’t help me very much for count 6[.]
“You find Ms. C[.] believable, then I could see how you
might consider a guilty verdict on that count. But don’t
throw out Angel Coronado in that count and accept him in
all of the others. [¶] And I want you to keep in mind that
she might have been stressed, because her kids were in the
car, and so she had a heightened sense of safety when there
was some stranger asking questions about Freddy who’s
out preying on young girls.
“And I also want you to know that Mr. Sorto – according to
her -- said nothing to harm her or threaten her or hurt her,
which is a hundred percent consistent with who we know
him to be.”

Contrary to Sorto’s claim, defense counsel did not concede guilt on
count 6. He simply suggested that while Susana seemed like a decent person
who told the truth “as she saw it,” she appeared to be an “emotional thinker”
who may have perceived things that were not happening. Coronado testified
at the preliminary hearing that there was enough room to back out, though
counsel did not believe him credible overall. Although counsel could see how
the jury might consider guilt on count 6 if it believed Susana’s testimony, he
asked the jury to “keep in mind” her heightened stress levels and admission
that Sorto never said anything to harm or threaten her.

10
 Although we do not perceive a concession in reviewing this passage
alone, any ambiguity in that regard is clarified by what followed. Having
advised Sorto in advance of his concession strategy on count 7, defense
counsel proceeded to tell the jury that the possession for sale count did not
rely solely on the testimony of Freddy or Coronado. “There were drugs there,
and there was activity on his phone, I think you have to convict him of that
count.” As counsel explained, count 7 was “an example of where the
government has proven their case, and they haven’t needed Freddy G[.] or
Angel Coronado to do it.” Reading the entire closing argument in context,
including the black-and-white nature of the concession on the drug possession
count, we conclude no reasonable jury would believe that defense counsel
conceded Sorto’s guilt on count 6.
We reach the same conclusion as to count 10. Counsel’s argument,
while something less than surgical, sought acquittal on the basis that “check
Angel Coronado” did not mean to dissuade him from testifying:
“Count 10: There’s a phone call, you hear Jose Sorto’s voice,
and he says, ‘Check Angel Coronado.’ [¶] And so a
reasonable inference to that is that he doesn’t want him to
testify, he wants him to be quiet. [¶] And so even though I
don’t think that’s completely unreasonable, given that
someone is lying about him, you don’t get to think about
that[.] [¶] You try and dissuade[] someone from
testifying[.] [I]t’s a crime.
“But there’s two allegations attached to it.
“One says that the defendant knowingly, maliciously
accompanied said act by force. An express or implied
threat of force or violence upon a victim, witness, or
another person. [¶] And you can find that to be true or not
true.
“Now, [the prosecutor] said, oh, ‘Check him,’ we all know
what that means. [¶] The answer is, we don’t. [¶] We

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 don’t because we know from Detective Hadda[d] that the
term ‘check’ is incredibly broad.”

From here, defense counsel took a brief detour into Sorto’s recorded
conversation with a woman named Gabby. Sorto was “mad as a hornet” but
only went so far as to suggest that “one of these days,” Gabby would “mess
with somebody . . . more connected than I am” who would not just want to
talk about her wrongdoing. As the detective had conceded at trial, Sorto’s
verbal admonishment of Gabby would be a “check.” This suggested that the
“check” on Coronado was merely a “talking to,” or “a verbal admonishment
not to engage in behavior that [Sorto] finds unacceptable.”
Counsel also explored another aspect of the call with Gabby. By
referring to someone “more connected” than he was, Sorto could not have
been a shot caller in the gang. In none of the calls did he say, “you have to
listen to me” or convey that he was in charge. Moreover, in Coronado and
Freddy, he chose two drug addicts to help him. “Can you imagine being a
shot caller and asking two drug addicts to do your running,” counsel asked.
He noted that Sorto worked part time at a Jiffy Lube and had $76 to his
name, further casting doubt that he “ran things from the jail.”
The clear implication is the opposite of what Sorto suggests. Trial
counsel did not concede guilt on count 10. He stated it would be a crime if
“check Angel Coronado” meant stop him from testifying, but that this was not
the most reasonable inference to draw. Based on Sorto’s call with Gabby, it
was apparent a “check” was simply a verbal admonishment. This inference
was further supported by the lack of evidence suggesting he was a shot caller
in the gang who had the power to prevent Coronado from testifying. As the
People suggest, “[a]lthough the argument was somewhat disjointed, it is
apparent defense counsel was asking for an acquittal.” In short, because

12
defense counsel did not concede guilt on counts 6 or 10, Sorto cannot be heard
to complain of a Sixth Amendment violation under McCoy.
2. Sufficiency of the Evidence of Attempted Extortion (count 5)
The jury convicted Sorto in count 5 of attempted extortion based on the
prosecution’s theory that he threatened Freddy by demanding that he steal a
surveillance system or be stabbed. Sorto argues that conviction cannot stand
because Freddy had no possessory interest in a surveillance system he had
yet to steal and thus could not validly consent to give it to Sorto. Although
framed as a question of sufficiency of the evidence, the issue is really one of
statutory interpretation—do the extortion statutes require a victim to have a
possessory interest in the property being taken by force or fear? As this
presents a question of law, we apply de novo review. (See, e.g., People v.
Chubbuck (2019) 43 Cal.App.5th 1, 7 [examining de novo whether a low-
speed motorized device used to move shipping containers qualified as a
“vehicle” under Vehicle Code section 10851].)
“Courts may not create a criminal offense by enlarging a statute or
giving its terms false or unusual meanings.” (People v. Kozlowski (2002) 96
Cal.App.4th 853, 865 (Kozlowski).) Instead, penal statutes “must be
construed according to the fair import of its terms.” (Ibid.) As we explain,
extortion or its attempt do not require a victim to have a possessory interest
in the property that a defendant demands. So long as the ultimate object of
the threat was to obtain property, it is of no moment that the property was
not in the victim’s possession at the time the extortionary threat was made.
We start with the text of the statute. At the time of his offense in
March 2018, section 524 proscribed all “attempts, by means of any threat,
such as is specified in Section 519 . . . , to extort property or other
consideration from another.” The completed offense of extortion is defined in

13
relevant part by section 518, subdivision (a) as “the obtaining of property or
other consideration from another, with his or her consent.” Subdivision (b) of
that statute defines consideration as “anything of value,” including sexual
conduct. The People suggest that “anything of value” includes coercing
Freddy to steal the surveillance system.
While this argument seems logical, the “other consideration” theory
was never presented below. Rather, the prosecutor continually focused on
the surveillance system as the “property” that Sorto sought to obtain. She
began her discussion of the extortion count by explaining to the jury that this
was “obviously” attempted extortion “because the property was never
obtained.” She went on to argue that Sorto was trying to “obtain Freddy’s
consent to get the surveillance system,” again indicating the surveillance
system was the property that Sorto attempted to extort.
More importantly, the jury was instructed with a version of CALCRIM
No. 1830 that did not reference “other consideration” and instead asked it to
consider whether Sorto intended to use force or fear to make Freddy give him

“money or property.”5 Sorto is “entitled to have the validity of [his]
convictions appraised on consideration of the case as it was tried and as the
issues were determined in the trial court.” (Cole v. Arkansas (1948) 333 U.S.
196, 202; see People v. Kunkin (1973) 9 Cal.3d 245, 251 [“We, of course,
cannot look to legal theories not before the jury in seeking to reconcile a jury
verdict with the substantial evidence rule.”].) Thus, although section 524
now encompasses attempts to obtain “other consideration” by force or fear,
the manner in which this jury was instructed means we must focus on
whether the defendant attempted to obtain “property.” This in turn requires

5 The “other consideration” language was added to sections 518 and 524
effective January 1, 2018. (Stats. 2017, ch. 518 (Sen. Bill No. 500) § 1.) The
amendment likely requires modification of the CALCRIM instruction.
14
us to assess whether “property” for purposes of extortion includes goods an
extortion victim neither owns nor possesses. (See, e.g., § 7, subds. (10) & (12)
[“property” includes goods].)
Sorto argues it may not, drawing parallels between extortion and other
larcenous crimes. The related crimes of extortion and robbery “have their
roots in the common law crime of larceny.” (People v. Torres (1995) 33
Cal.App.4th 37, 50 (Torres).) Both involve acquisition by force or fear, with
robbery involving a taking against the victim’s will and extortion involving a
taking with (coerced) consent. (Ibid.) In defining the elements of extortion,
several cases articulate that the act proscribed is coerced taking of the
victim’s property. (Ibid. [defendant acts with “specific intent of inducing the
victim to part with his or her property,” (italics added)]; People v. Goodman
(1958) 159 Cal.App.2d 54, 61 [extortion victim gives coerced consent to the
“surrender of his property” (italics added)].) Relying on these cases, Sorto
infers that property subject to extortion must either belong to or be possessed
by the victim, as only such a person would be is in a position to give coerced

consent.6
Sorto’s argument presents some facial appeal. The completed offense of
extortion was previously defined as “the obtaining of property from another,
with his consent, . . . induced by a wrongful use of force or fear.” (Former
§ 518, Stats. 1939, ch. 601, § 1.) Attempted extortion covered “attempts, by
means of any threat, such as is specified in Section 519 of this code, to extort

6 Acknowledging People v. Beggs (1918) 178 Cal. 79 (Beggs), Sorto admits
that a defendant can extort property from a thief who does not legally own or
possess it. (Id. at pp. 85−86.) But even this scenario would envision stolen
property or its proceeds already being in the thief’s possession. In other
words, Sorto suggests that although an extortion conviction could stand if
Freddy had already stolen the surveillance system, it could not be based on a
demand for a system he had yet to steal.
15
money or other property from another.” (Former § 524, Stats. 1983, ch. 1092,
§ 295.) The structure of former section 518 suggests the same person must
relinquish property and give consent induced by force or fear. Here, the
prosecution’s theory was that Freddy consented under threat to steal a
surveillance system and then deliver it to Sorto. Sorto argues this threat
does not suffice for attempted extortion: “the victim must have the ability to
exercise control over the disposition of the property — otherwise, the victim

has no ability to consent.”7
Cutting the other way, California cases routinely emphasize that
“property” in the extortion statutes must be broadly construed. (See
Kozlowski, supra, 96 Cal.App.4th at pp. 865−866; Galeotti v. International
Union of Operating Engineers Local No. 3 (2020) 48 Cal.App.5th 850, 861.)
While Kozlowski and other cases looked to theft and robbery to define
property subject to extortion, “ ‘[e]xtortion and theft are not the same
offense.’ ” (People v. Serrano (1992) 11 Cal.App.4th 1672, 1677.) For
example, claim of right provides an absolute defense to larceny, but not to
extortion. (Ibid.; see also People v. Kaufman (2017) 17 Cal.App.5th 370, 388.)
And “ ‘[t]here is not the same need in extortion for a narrow definition of
“property” as in robbery, as the acts sought to be punished by the crime of

7 Although not cited by Sorto, we have located one out-of-state case
supporting his view. In State v. Prell (Ariz.App. 1973) 517 P.2d 1296,
defendant was charged with extortion for forcing a woman to deliver her
husband’s signature on an acknowledgement that a debt owed to the husband
was paid. Affirming an order granting a motion to quash the indictment, the
court reasoned that the defendant did not obtain property of the victim.
“There was no transfer of a thing of value from the victim to the defendant.
If there could be considered to be a transfer, this was executed by the victim’s
husband and he is not named in the indictment as being a person who was
the subject of the extortion.” (Id. at p. 1298.) Nowhere in its brief discussion
did the Prell court explore the concept of consent, but the court nevertheless
implied that only the victim’s property could be extorted.
16
extortion often result in the obtaining of things of value which would not be
subject to robbery from the person.’ ” (Kozlowski, at p. 866.) Robbery
requires a felonious taking—i.e., an intent to permanently deprive the victim
of the property taken; extortion does not. (Torres, supra, 33 Cal.App.4th at
p. 50.)
There is a good reason for these differences. When it comes to extortion
under California law, “[i]t is the means employed which the law denounces.”
(Beggs, supra, 178 Cal. at p. 84, italics added [finding it immaterial that a
defendant sought to recover the alleged value of goods stolen from a thief].)
“Extortion has been characterized as a paradoxical crime in that it
criminalizes the making of threats that, in and of themselves, may not be
illegal.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 326.) “In substance, what is
proscribed is the successful wrongful use of force or fear to obtain property
from another with his or her consent.” (People v. Hesslink (1985) 167
Cal.App.3d 781, 789.) Extortion occurs where the wrongful use of fear is “the
operating cause which produces the consent”—no extortion occurs if the
victim consents for some other reason. (Beggs, at p. 88; People v. Bollaert
(2016) 248 Cal.App.4th 699, 725.) From these principles, we deduce that our
extortion statutes aim at the effect of a defendant’s wrongful use of force or
fear to obtain property, and not the nature of a victim’s property interest or
his or her ability to give valid consent.
Despite an exhaustive search, we have located just a single California
case speaking to whether the victim must own or possess the property being
extorted. But that one case gives us reason to reject Sorto’s claim. In
Harper, supra, 44 Cal.App.5th 172, the defendant was convicted of
kidnapping for extortion (§ 209, subd. (a)) based on the prosecution’s theory
that he had twice kidnapped Jane Doe 2 intending to obtain money from her

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through forced prostitution. On appeal, he argued his conduct did not qualify
as extortion because neither Doe 2’s body nor her sexual conduct qualified as
property subject to an extortionary demand. (Harper, at pp. 190−191.)
Rejecting this argument, the court explained that sexual conduct was not the
object of Harper’s extortion but a mere intermediate step. Harper intended
to hire out Doe 2 as a prostitute to obtain money, and using force or fear to
obtain money from a victim with her consent amounted to extortion.
“Because Harper ultimately wanted money from Doe 2’s forced prostitution
services, his conduct qualified as extortion prior to the amendment to section
518.” (Harper, at p. 191.)
We find Harper persuasive. Sorto’s object was to obtain an expensive
surveillance system, with Freddy’s coerced theft being a necessary
intermediate step. Just as it was immaterial that the victim in Harper did
not yet possess the money ultimately sought by her extortioner, it is
immaterial that Freddy did not possess the surveillance system at the time
Sorto used fear to demand its theft. With the focus appropriately placed on
Sorto’s coercive conduct and its effects, his conviction for attempted extortion
was proper even though Freddy lacked a present possessory interest in the
property he threateningly demanded.
3. Double Punishment
As previously indicated, the jury convicted Sorto of various offenses,
including making a criminal threat (count 4) and attempted extortion (count
5). At sentencing, the court imposed consecutive terms on counts 4 and 5.
Although it stayed the one-year arming enhancement attached to count 5, it
did not stay the terms imposed for the main count or attached gang
enhancement.

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 Section 654 prohibits double punishment under multiple statutes for
the same act or omission. Subdivision (a) provides: “ ‘An act or omission that
is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under
more than one provision.’ ” (See e.g., People v. Corpening (2016) 2 Cal.5th
307, 309, 315 [multiple punishment prohibited where “the same action
completed the actus reus for each of [the] two crimes”].) Here, the case was
presented to the jury on the theory that there was a single threat to Freddy
reinforced multiple times as Sorto drove to three different retail
establishments. It is also apparent that this single threat—steal a
surveillance system or be stabbed—constitutes an essential part of the actus
reus for both the criminal threats and extortion convictions. Under well-
established principles, Sorto cannot be separately punished for both extortion
and making a criminal threat.
Attempting to argue to the contrary, the People point out that Sorto
repeated the same threat three different times at three different stores.
Characterizing these three instances as multiple threats, they point to the
trial court’s statement at sentencing, declining to apply section 654 by finding
that “the crimes involved separate acts of violence committed at different

times and at separate places.”8 They maintain “the trial court could
reasonably select one for the criminal threats count and another for the count
charging attempted extortion.”

8 The jury convicted and the trial court sentenced on six different
“crimes.” Beyond this general statement, apparently taken from the
probation report, there is no specific discussion of a section 654 issue
pertaining to counts 4 and 5.
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 The People are correct as a matter of theory. If there were at least two
separate threats, nothing would preclude separate punishment for both
extortion based on one threat, and making a different criminal threat. (See,
e.g., People v. Camodeca (1959) 52 Cal.2d 142, 148‒149.) But the fact that
the same threat was repeated three times does not mean there were three
different threats. Even where it can be said there is more than a single
physical act—in this case, more than one verbal statement—whether a single
course of conduct may be punished more than once depends on the
defendant’s intent and objective. “If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.” (People v. Britt (2004) 32 Cal.4th 944, 952, quoting Neal
v. State of California (1960) 55 Cal.2d 11, 19.) Here, Sorto manifestly
entertained a single objective throughout the excursion—forcing Freddy to
steal a surveillance system.
But even if independent objectives for some of the “three threats” could
be hypothesized, the People’s argument ignores the fact that Sorto was
charged with one count of making a criminal threat, not three. And more
importantly, the jury was told that both the extortion and criminal threat
charges (counts 4 and 5) were based on the same threat. During her closing
argument, the prosecutor first explained the criminal threat count as founded
on Sorto’s directive to Freddy “that was reinforced multiple times throughout
the night: either steal or get stabbed.” A short time later, referring back to
the criminal threat discussion, she indicated that the attempted extortion
count was based on the same act—Sorto “intended to use that [previously
discussed] fear or force to obtain Freddy’s consent to get the surveillance
system.” (Italics added.) The prosecution cannot argue one factual theory to
the jury, then adopt a contrary one for purposes of sentencing.

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 We accordingly conclude the trial court erred by separately sentencing
Sorto on both counts 4 and 5. We will modify the judgment to stay the
sentence imposed on count 5.
4. Clerical Error
Sorto argues, and the People appropriately concede, that the sentencing
minutes must be corrected to delete reference to two prison priors. At the
end of trial, the prosecution determined that the prior prison terms alleged in
the information were invalid and requested their dismissal. But the trial

court made no specific ruling in that regard at the priors trial.9 In
pronouncing the sentence, it did not reference any prison priors.
Nevertheless, the minute order from the sentencing hearing erroneously
reflects that the prison priors were stricken for purposes of sentencing. The
oral pronouncement of judgment controls over the minutes. (People v.
Zackery (2007) 147 Cal.App.4th 380, 385.) Exercising our inherent power to
correct clerical errors (People v. Mitchell (2001) 26 Cal.4th 181, 185), we will
direct the trial court to correct the minutes accordingly.

9 The minute order is at best confusing. It states: “The Court finds that
the allegation in the complaint that the defendant has suffered a serious
felony priors [sic] and strike priors are true. The People agree to dismiss
count 1, count 2, and the allegations to Count 9.” The order goes on to list
four items without any elaboration:
First Strike pursuant to PC667(b)-(i)/1170.12
First Serious Felony Prior pursuant to PC667(a)(l), 668, and 1192.7(c)
First Prison Prior pursuant to PC667.5(b)
Second Prison Prior pursuant to PC667.5(b)
What is happening with respect to the prison priors is never specified.
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 DISPOSITION
The judgment is modified to stay the term imposed in count 5 for
attempted extortion (§ 524) and the associated enhancements pursuant to
section 654. The November 20, 2019 minute order of the sentencing hearing
is amended to omit reference to Sorto’s alleged prison priors. The trial court
is directed to prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. In all
other respects, the judgment is affirmed.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

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