I concur in the result, although my reasons for believing that there was no kidnaping for purposes of extortion under Penal Code section 209, subdivision (a)1 are somewhat narrower than those of the majority.
In analyzing whether the facts of this case support a kidnaping for extortion conviction, the majority focuses solely on whether the acts of the police officers demanded by defendant amounted to “an official act of a public officer” under section 518—the extortion statute. The majority concludes that an “act is official if it is done in an official capacity rather than privately.” With respect, I can see problems down the road if that is to be the universal touchstone.
To solve this case, however, it is not necessary to seek and find a solution for all doubtful future cases of “official action.” In my view, the majority’s *58approach overlooks a threshold flaw in the prosecution’s position which fails to take into account the sharp distinction that section 209 draws between kidnaping for purposes of extortion (subd. (a)) and kidnaping for purposes of robbery (subd. (b)).2 The statutory scheme makes it clear that the Legislature intended to reserve the more drastic penalty of subdivision (a) for cases involving the typical kidnaping for ransom scenario, where the kidnaping victim is held for some period of time to extort some collateral act. (See Note, Struggling with California’s Kidnaping to Commit Robbery Provision (1976) 27 Hastings L.J. 1335, 1347.) Subdivision (a) was not intended to apply to cases which fit the typical robbery mold, where the victim is required, by force or fear, immediately to part with a wallet, a car or some other property. The facts of this case, however, are obviously closer to the “robbery” than to the “extortion” model.
How is this distinction reflected in the statutory language? We can start with the proposition that section 518 appears to put “property” and “official acts” on a par, as alternative objectives of a possible act of extortion.3 Thus one would suppose that if a defendant applies force or fear—or both—to obtain property along with the official act, then if the crime is robbery with respect to the property, it cannot be extortion as far as the official act is concerned. Personally I have always had a problem with the “consent” part of the crime of extortion. “To constitute extortion the victim must consent, albeit it is a coerced and unwilling consent . . . .” (People v. Goodman (1958) 159 Cal.App.2d 54, 61 [323 P.2d 536].) Frankly I find it difficult to distinguish the consent of the bank teller, who obediently empties his till into the armed robber’s satchel, from the consent of the parent of a kidnaped child, who delivers the ransom money at the appointed place. The difference seems to be in the immediacy and the nature of the threat, not in the reality of consent. (See Model Pen. Code & Commentaries, com. 3(d) to § 222.1, pp. 110-111.)
In any event if, in this case, defendant had demanded the officers’ guns as well as his own eventual release, obviously he would have been in the process of committing a robbery as far as the guns were concerned. Clearly, then, even if he did demand an official act as well, it would not have been performed with the officers’ “consent” within the meaning of section 518, *59and would therefore not constitute extortion for purposes of the kidnaping for extortion provision. That is all we have to hold in this case.
Bird, C. J., and Grodin, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
All section references are to the Penal Code.
When subdivision (a) applies, the penalty is life without possibility of parole if the victim suffers bodily harm and life imprisonment if the victim is unharmed; under subdivision (b), the penalty is life with possibility of parole, whether or not the victim suffers bodily harm.
Grammatically the words “with his consent” in section 518 can be construed to modify only property, permitting a conviction for extortion of official acts even if they are performed under the gun. Neither party, however, contends for such a construction, and such a reading would render the “official act” portion of section 518 indistinguishable from section 71.