APPEAL from a judgment of the Superior Court of San Bernardino, John B. Gibson, Judge. (Super. Ct. No. FBA008207)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part; reversed in part; remanded for recalculation of custody credits.
A jury found Joyce Jaska guilty of five counts of grand theft by embezzlement (Pen. Code, § 487, subd. (a)),*fn2 three counts of filing a false income tax return (Rev. & Tax. Code, § 19705, subd. (a)), three counts of filing a false amended tax return (ibid.), and five counts of committing perjury by declaration (§ 118). The jury found that in committing the grand theft counts, Jaska took property valued at more than $50,000 (former § 12022.6, subd. (a)), and more than $150,000 (former § 12022.6, subd. (b)). The jury also found true an aggravated white collar crime enhancement (§ 186.11, subd. (a)(1)), which alleged that the grand theft counts were related felonies that included fraud or embezzlement as a material element, and involved the taking of more than $100,000.*fn3
The trial court sentenced Jaska to 12 years in prison and imposed a $3,200 restitution fine under section 1202.4. At a subsequent hearing, the trial court imposed a $300,000 fine under section 186.11, subdivision (c), and ordered Jaska to pay restitution in the amount of $499,999, at 10 percent interest per annum, from May 1, 2002.
On appeal, Jaska contends that all but one of her five grand theft convictions must be reversed because all of the grand theft counts were based on a series of thefts committed against a single victim, pursuant to one intention, one general impulse and one plan.*fn4 Jaska also contends that the trial court erred by allowing an expert witness from the California Franchise Tax Board to testify based on inadmissible exhibits supplied by the district attorney's office, and that her trial counsel provided ineffective assistance by failing to object to the testimony or the exhibits. Jaska further claims that the trial court abused its discretion by refusing to release more than $100,000 from a lis pendens recorded on her residence pursuant to section 186.11, subdivision (e)(2), to allow her to retain counsel of her choice. Additionally, Jaska challenges a $300,000 fine imposed pursuant to section 186.11, subdivision (c), and a restitution order in the amount of $499,999, imposed pursuant to section 186.11, subdivision (d). We reject all of these contentions.
Jaska also contends that she is entitled to additional conduct credits pursuant to a January 2010 amendment to former section 4019. We agree that the January 2010 amendment applies to this case, and remand the matter to the trial court for a determination of any additional presentence credits to which Jaska may be entitled.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Rajacich (Michael) established Barstow Truck Parts and Equipment, Inc. (BTP) under the name Barstow Steel in the 1950's, near the site of the family residence on Main Street in Barstow. Michael was the father of James Rajacich (Jim) and Marsha Rajacich (Marsha). Marsha inherited 29 percent of the BTP stock when Michael died in 1992; Jim held the remaining 71 percent.
Starting in 1968, Jim, who had worked at Barstow Steel since he was a child, began running the business. He also incorporated the business and changed its name to BTP. BTP and its two subsidiaries buy large scale scrap from the military and resell it. They also lease equipment and pave roads.
BTP had two corporate officers: Jim, who was president, and Jaska, who was secretary-treasurer. Jaska is the niece of the late Michael and the first cousin of Jim and Marsha, who have known her all of her life. In 1987, Michael hired Jaska, who has an accounting degree from the University of the Pacific, as BTP's office manager. Jaska worked as BTP's office manager from 1987 to April 2002. Jim fully trusted Jaska. Jaska's job was to supervise office personnel, conduct general business for BTP, prepare reports, and handle BTP's accounting. Her responsibilities included paying bills and providing payroll information to Paychex, an outside company that prepared the payroll checks for all BTP employees. Jaska signed all checks issued on BTP accounts.*fn5
B. BTP's financial practices and problems
BTP started having serious financial problems in 1997. By 2001, banks were returning BTP checks, totaling hundreds of thousands dollars, every month due to insufficient funds. Many vendors refused to accept BTP's checks because so many had been returned for insufficient funds.
BTP also employed numerous questionable accounting practices. For example, BTP did not properly withhold income tax and social security payments from its payroll. By 2001, the Internal Revenue Service (IRS) had placed liens on BTP's equipment and required the business to make weekly payments. When Jaska informed Jim and Marsha about the IRS liens, Jaska told them that she had not withheld income tax and social security payments from BTP's payroll checks because BTP was not bringing in enough money.
BTP also failed to properly account for "scrap checks" that the company used to pay for the purchase of scrap metal. Over time, the "scrap" account evolved into a miscellaneous account in which an accounting office employee would place an entry if she was unsure where it belonged.
Another troublesome BTP accounting office practice involved the record keeping associated with loans made to the company. On several occasions, Jaska claimed to have loaned BTP money for short periods of time, usually a day or two days. Jaska told a police detective that she had loaned money to BTP many times, in the amounts of $5,000 to $10,000. An auditor could not find any records of loans made to BTP; the only evidence of the purported loans came from ledger entries of checks payable to Jaska that were coded "loan payback."
Sue Ellen Tankersley, an investigative auditor for the California Department of Justice (DOJ), testified that BTP's sloppy record keeping demonstrated "a clear intent for subterfuge or hiding the ball or creating mass confusion. . . . [¶] So based on those things, and the general state of the documentation of the books and records for [BTP], in my mind clearly there was a--a large embezzlement going on here."
C. The end of Jaska's employment with BTP
In January 2000, Marsha returned to Barstow from Kansas City, where she had been running a family business for two decades. Jim asked Marsha to support BTP by lending it $400,000. After Marsha arranged a $400,000 line of credit, she moved back to Kansas City. Marsha returned to Barstow in October 2001 and sensed that something was wrong at BTP. The following month, she began looking into the company's financial condition.
In early 2002, Marsha noticed that the trash bin outside of BTP's facility was full of shredded paper. Gordon Kruse, BTP's general manager, saw 17 bags of shredded paper. In April 2002, Marsha hired Jennifer Pervinkler, an accountant, to conduct an audit of BTP. Pervinkler went through BTP's ledgers, records, bank statements and copies of checks. Many BTP records were missing, and those that were found were not in any kind of order. Only a quarter of the checks that were drawn on BTP accounts from 1997 to 2002 were found; the remainder had to be ordered from BTP's banks. The audit took a year to complete.
On April 22, 2002, Jim, Marsha, Jaska and Kruse met to discuss BTP's financial situation. Jaska did not return after a lunch break for the resumption of the meeting, and never returned to BTP.
On May 15, 2002, Marsha asked the Barstow Police Department to institute a criminal investigation into embezzlement at BTP; Marsha identified Jaska as a suspect. Detective Andrew Espinoza interviewed Jaska on June 26, 2002. Jaska told him that other persons had taken money from BTP. The follow morning, Espinoza executed a search warrant on the Jaska residence and arrested Jaska. Espinoza seized the tax returns for Jaska and her husband, along with other items.
1. The grand theft--embezzlement counts
Count 1 pertained to BTP's petty cash account, which was maintained in the accounting office. According to Jim, Jaska was in charge of the petty cash account. However, Jaska told a police detective that other individuals who worked in the accounting office were responsible for petty cash, and claimed that she did not have access to the petty cash account nor anything to do with it. When a BTP employee needed petty cash for reimbursement for a company expense, the employee was supposed to provide a receipt for the expenditure. Jaska, however, often turned in a calculator tape with a dollar amount on it in lieu of a receipt, and was reimbursed in cash. Every month--and sometimes more than once a month--Jaska took either $600 or $700 from petty cash for her car maintenance and repair expenses, without a supporting receipt. Jaska told an employee in the BTP accounting office that Jim had authorized cash reimbursement for her automobile maintenance and repair expenses.*fn6
The petty cash account was abused in other ways, as well. For example, the accounting office staff routinely used petty cash to pay for their lunches when they went out as a group--sometimes without Jaska--up to five times a week.
The balance that was maintained in the petty cash account was as much as $5,000. Annual summaries show that in 1999 the total amount of petty cash used at BTP was $128,755.74; in 2000 it was $97,273.71; in 2001 it was $91,818.93; and in 2002, through April 15, it was $24,999.55.
Tankersley, the DOJ investigator, testified that she had never seen a petty cash account abused as much as BTP's petty cash account. Tankersley explained that petty cash is defined as $100 or less. However, Tankersley said that more than $2,500 a week was disbursed from the BTP petty cash account, without documentation. According to Tankersley, this "clearly indicates fraud."
Counts 2 and 3 involved Jaska's use of BTP checks to make payments on her personal American Express and Visa credit card accounts. Jim never authorized Jaska to pay her personal credit card bills with BTP checks.
In 1998, Jaska used BTP funds to pay $11,681.39 for charges to her personal American Express account; in 1999, the figure was $34,265.59; and in 2000, the figure was $42,006.42. In 2001, Jaska used BTP money to pay $54,253.88 for charges to her personal American Express account; and in 2002 (up until April 15), the figure was $21,803.37. Jaska used a total of $164,010.65 in BTP funds to pay charges on her personal American Express card from 1998 to 2002.
With respect to Jaska's personal Visa account, Jaska used BTP checks to pay $2,500 in charges in 1997; $42,384.22 in charges in 1998; $37,686.35 in charges in 1999; $16,893.38 in charges in 2000; $15,523.11 in charges in 2001; and $6,774.84 in charges in 2002 up until April 15. Jaska used a total of $121,761.90 of BTP funds to pay charges on her personal Visa account during this period of more than five years.
Count 4 pertained to the theft of funds from BTP's payroll account. Jim understood Jaska's salary to be $45,000 per year, which also was the amount that Jaska told the IRS she received from BTP as her salary.*fn7 Jim never approved a higher salary for Jaska.
Jaska came up with idea of issuing "scrap checks" in lieu of payroll checks to BTP employees. Under this plan, BTP avoided paying withholding taxes. Jim told Jaska that issuing "scrap" checks instead of paychecks was not a good idea. He received one "scrap" salary check and told Jaska not to do this again. Despite this admonition, Jaska continued to issue "scrap" checks to pay employees' salaries--including her own--even though she knew that doing so was illegal. Kruse testified that Jaska issued "scrap" salary checks over a period of more than six months. Jaska also had "scrap checks" issued to herself for undisclosed reasons.
The audit showed the following: In 1998, Jaska received gross pay of $58,850, and reimbursement of $6,425 and $17,900 in scrap checks. In 1999, Jaska received gross pay of $71,250, reimbursement of $10,121.57, and $27,025 in scrap checks. In 2000, Jaska received gross pay of $53,750, reimbursement of $7,400, and $46,555.55 in scrap checks. In 2001, Jaska received gross pay of $57,500, reimbursement of $10,000, and $46,800 in scrap checks.
Count 5 pertained to Jaska's use of BTP funds to pay for a car. Jaska drove a red 1999 Volvo to work daily. Jaska leased the Volvo from Enterprise Fleet Management (Enterprise), from which BTP purchased used pickup trucks for use in its business. The lease for the Volvo required a payment in the amount of $10,750 for "capital cost" on delivery, and a monthly fee of $614.87. Jaska paid the "capital cost," but used BTP funds to pay the monthly fees.*fn8 From April 1999 through March 2002, the monthly payments for the Volvo were made from a BTP account. BTP also paid an extra $10,947.20 as paydown on the lease, as well as license renewal fees. The audit showed that BTP paid Enterprise a total of $27,370.70 from 1999 to 2002 in connection with Jaksa's lease.
Jim never authorized Jaska to lease or purchase an automobile, or to use BTP funds to pay for the Volvo. He never authorized any reimbursement for expenses associated with the Volvo because Jaska did not use the car for BTP business. Jaska had not discussed the Volvo with Jim. However, Jaska told an accounting office employee that Jim had agreed to provide her with funds for monthly vehicle maintenance and repair from petty cash.
2. The perjury and tax counts
Jaska filed joint tax returns with her husband, Wesley Jaska (Wesley).*fn9 The Jaskas underreported their income in their California tax returns for the years 1999, 2000 and 2001, and in their amended California tax returns for those years.*fn10
Walter Perez, a special agent with the Franchise Tax Board, testified that "income" means any cash or equivalent, regardless of whether it was legitimately earned or stolen. For example, although income would include the monthly rental fees for the Volvo that were paid from a BTP account, the Jaskas failed to report this income on their returns. The Jaskas also did not report as income the money that Jaska received from the BTP petty cash account.
The prosecution presented evidence that the Jaskas also failed to report the money that BTP paid on their American Express and Visa credit card accounts, or the extra BTP wages paid to them. The unreported 1999 income was $139,139.35; the unreported income for 2000 was $143,439.28; and the unreported income for 2001 was ...