It can be, depending on how you ask. Asking for payment of a real debt, sending a demand letter, or filing a lawsuit is not extortion by itself. It becomes extortion when payment is obtained through force or one of a short list of threats, such as threatening to accuse the person of a crime or expose a secret, and a threatening letter or a failed attempt can be a crime too. That the debt is real is no defense.
What extortion requires
Penal Code section 518(a) defines extortion as obtaining property or other consideration from another person, with that person’s consent, induced by a wrongful use of force or fear. Under CALCRIM No. 1830, the jury instruction for this crime, the consent can be coerced or unwilling, but the threat or force must be the controlling reason the person consented. If the person consented for some other controlling reason, the defendant is not guilty of extortion, although the separate attempt crime described below does not depend on the threat working.
Only specific threats count
Penal Code section 519 lists the threats that can create the fear extortion requires. They are threats:
- to do an unlawful injury to the person or property of the person threatened or of a third person;
- to accuse the person, a relative, or a family member of a crime;
- to expose or impute to them a deformity, disgrace, or crime;
- to expose a secret affecting them; or
- to report their immigration status or suspected immigration status.
A demand that uses neither force nor one of these threats is not extortion, whatever else might be wrong with it.
A genuine debt is not a defense
The Related Issues notes to CALCRIM No. 1830 state that “a good faith belief in the right to property does not negate the specific intent required for extortion,” and that a debt cannot be collected by extortion. The California Supreme Court restated that rule in Flatley v. Mauro (2006) 39 Cal.4th 299, quoting its 1918 decision in People v. Beggs: “The law does not contemplate the use of criminal process as a means of collecting a debt.” The Court added that section 519 threats are extortionate whether or not the person threatened actually committed the crime or indiscretion, and whether or not the person making the threat could have reported it.
Flatley was a civil case. A lawyer had sent a demand letter, followed by phone calls, threatening to publicly accuse the recipient of rape and to report him to authorities for other alleged violations unless he paid a seven-figure settlement. The Court held that those communications were criminal extortion as a matter of law, so the lawyer could not use California’s anti-SLAPP statute to strike the lawsuit against him.
Where the line is
Two limits keep ordinary collection pressure outside the statute.
First, CALCRIM No. 1830 tells jurors that threatening to do something a person has a legal right to do is not a threat to commit an unlawful injury. That principle answers the first kind of threat on the section 519 list, not the others. A threat to report a crime or expose a secret unless you are paid can still be extortion, even though reporting a crime is itself lawful.
Second, the Flatley court stressed that its conclusion rested on the “specific and extreme circumstances” of that case. It described extortion as a threat to accuse or expose “accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made,” and said its opinion should not be read to mean that rude or even belligerent prelitigation negotiations, including threats to file a lawsuit, report criminal behavior, or publicize allegations of wrongdoing, necessarily constitute extortion.
A letter or a failed attempt is enough
You do not need to receive money for this to be a crime. Under Penal Code section 523, sending or delivering a letter or other writing that expresses or implies one of the section 519 threats, with intent to extort, is punished as if the money had been obtained. Under Penal Code section 524, an attempt to extort by a section 519 threat is punishable by a state prison term or a county jail term of up to one year, a fine of as much as $10,000, or both. Completed extortion by force or a section 519 threat, in circumstances that do not amount to robbery or carjacking, is a felony punishable by two, three, or four years under Penal Code section 520.
What changes the answer
- Whether the demand used force or one of section 519’s threats, rather than being firm, unpleasant, or repeated.
- Whether the threat, rather than some other reason, is what led the person to agree and pay.
- Whether what was threatened was something you have a legal right to do, like suing, or instead an accusation of a crime or the exposure of a secret unless the person pays.
Talk to a lawyer before you send another message
If a debt dispute has turned into threats in either direction, get advice before writing or sending anything else. The Law Offices of David S. Chesley can review exactly what was said; call (800) 755-5174 or see the firm’s extortion defense page.