(a) A person is guilty of theft if he intentionally obtains property of another by threatening to: (1) inflict bodily injury on anyone or commit any other criminal offense; (2) accuse anyone of a criminal offense;
(3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; (4) take or withhold action as an official, or cause an official to take or withhold action; (5) bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the defendant purports to act; (6) testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or (7) do any other act which would not substantially benefit the defendant but which is calculated to harm another person. (b) It is an affirmative defense to prosecution for extortion by threats to charge any person with a crime that the defendant honestly believed the threatened charge to be true and that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances to which such charge addressed. SOURCE: G.P.C. §§ 518-524; M.P.C. § 223.4; *Cal. § 2904 (T.D.3 1969); Cal. § 1018 (1971); Mass. ch. 266, § 17(a)(5); N.J. § 2C:20-5. CROSS-REFERENCES: New York Penal Law § 115.15(2) - Rel. to Subsection (b); See Ch. 49 - Official Action by Public Officers. COMMENT: § 43.40 makes minor changes in Guam extortion law. While the list of threats enumerated in this Section is longer than the enumeration in the Guam Penal Code, § 519, most of the specifically enumerated threats would clearly constitute extortion under existing California, and probably Guam, law. The one possible exception may be the threat listed under Subsection (a)(6) since no similar provision appeared in the Penal Code. No cases have appeared in California which deal with this precise threat. Additionally, all of the threats listed in this Section may be threats to injure any person whereas the Guam Penal Code requires threats to defame or accuse of crime be threats with reference to the victim, a relative or a member of the family. For unenumerated threats, the general principle stated in § 43.40 is that the threat be to do harm which does not benefit the defendant substantially, but which is calculated to do harm to another person. This would avoid some of the problems experienced by California courts under Penal Code § 519(1). This Section requires that any
unenumerated threats be a threat of Aunlawful@ harm. Some threats, such as the threat of a strike or boycott, are privileged when they are not used by the defendant for the purpose of personal gain. Present California law is unclear whether the requirement of Aunlawful@ harm is merely tautological, or whether the defendant is privileged to threaten and do harm he would be otherwise privileged to inflict, as a basis for demand for money. Present § 43.40 clears up such doubt.