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People v. Mayfield1/2/1997
tion of his office. . . . It means . . . whatever is done under color or by virtue of his office.' " (Ibid.)
Enlarging on this definition, this court in Norris stated: "t is the functional nature of the public officer's conduct that establishes its 'official' character; an act is official if it is done in an official capacity, rather than privately. The concept of 'official act' is not limited to authorized acts nor is it so broad as to encompass any conduct by an officer occurring during his working hours. We held in Abbott that although the arrest was illegal 'because it was in excess of [the deputy's] duty,' it was nonetheless an official act since the deputy acted 'in the line--direction--of official duty.' [Citations.]" ( People v. Norris, (supra) , 40 Cal. 3d 51, 55, original italics.)
This court then proceeded to apply this definition to the facts before us in Norris : "Defendant's demand that the deputies drive him to San Francisco cannot reasonably be characterized as an attempt to obtain an act performed in an official capacity, or under color of public office. Indeed, any person able to operate a motor vehicle could have performed the act. In contrast, in Robinson, (supra) , 130 Cal. App. 664, only a Judge acting by virtue of his public office could have granted the receivership order which defendant sought to obtain by means of blackmail. Because the Legislature expanded the definition of extortion to cover situations like Robinson, we conclude that it intended to limit the concept of 'official act' to include only those acts performed by an officer in his official capacity, which make some use of his public office." ( People v. Norris, (supra) , 40 Cal. 3d 51, 55-56, original italics.)
Turning to Magee, this court stated: "In [ Magee ] v. Superior Court (1973) 34 Cal. App. 3d 201, 220 [109 Cal. Rptr. 758], the defendant held hostages to prevent law enforcement officials from arresting him. After a mistrial, he challenged the propriety of a retrial on an aggravated kidnaping charge, asserting that sections 209 and 518 were void for vagueness and that his conduct did not constitute extortion. The Court of Appeal dismissed the vagueness claim, holding that the statute adequately encompassed defendant's attempts to make officers 'forego [their] official duty not [ sic ] to interfere with law violations occurring in [their] presence.' ( Id., at p. 220.) To the extent [ Magee ] implies that any conduct aimed at interfering with law enforcement duties is punishable under section 209, it is hereby disapproved. A wide range of criminal activity is directed toward that end." ( People v. Norris, (supra) , 40 Cal. 3d 51, 56.)
Our limited disapproval of this statement in Magee v. Superior Court, (supra) , 34 Cal. App. 3d 201, 220, did not mean that extortion could never be committed by a demand that an officer refrain from engaging in a law enforcement activity. Rather, our statement meant that such a demand was punishable as extortion only if the law enforcement activity in question necessarily included acts done "under color or by virtue of" a public office or, otherwise stated, acts done in an official capacity and by use of a public office. Significantly, in Norris we expressed no disagreement with the Court of Appeal's holding in Magee that taking hostages to prevent the hostage-taker's arrest by law enforcement officials is punishable as kidnapping for extortion. ( People v. Norris, (supra) , 40 Cal. 3d 51, 56.)
Under Norris, the instruction given in this case was plainly inadequate. Even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the cour
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