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The People v. Joyce Jaska

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


April 27, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOYCE JASKA, DEFENDANT AND APPELLANT.

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.

I.

INTRODUCTION

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.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. 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.

D. The charged offenses

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 $177,052.44. The Jaskas' total unreported income for the three years was $459,631.07.

III.

DISCUSSION

A. There is substantial evidence in the record to support the jury's verdicts finding Jaska guilty of multiple counts of grand theft by embezzlement

Jaska contends that her convictions on all but one of the counts of grand theft by embezzlement (counts 1-5) must be reversed because all of the counts are based on a series of thefts committed against a single victim, pursuant to one intention, one general impulse and one plan.

1. Governing law

a. People v. Bailey (1961) 55 Cal.2d 514, 519

"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.]' [Citations.]" (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) However, "a defendant may be properly convicted upon separate counts charging grand theft from the same person" only if the evidence shows "that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (People v. Bailey (1961) 55 Cal.2d 514, 519 (Bailey).)

In Bailey, the defendant made misrepresentations that enabled her to receive welfare payments, each of which was less than $200, but which in total amounted to more than $3,000. (Bailey, supra, 55 Cal.2d at pp. 515-516, 518.) A jury found the defendant guilty of a single count of grand theft. (Id. at p. 515.) At the time of the defendant's conviction, the theft of property worth more than $200 constituted grand theft. (Id. at p. 518.) The trial court granted the defendant's motion for a new trial on a separate jury instruction issue, and the People appealed. (Id. at pp. 515-517.) After concluding that the trial court had erred in granting the motion for new trial on the jury instruction issue, the Supreme Court considered "whether [the defendant] was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum." (Id. at p. 518.)

The Bailey court held that the defendant was properly convicted of a single count of a grand theft. The court reasoned:

"Several recent cases involving theft by false pretenses have held that where as part of a single plan a defendant makes false representations and receives various sums from the victim the receipts may be cumulated to constitute but one offense of grand theft. [Citations.] The test applied in these cases in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. The same rule has been followed in larceny and embezzlement cases, and it has been held that where a number of takings, each less than $200 but aggregating more than that sum, are all motivated by one intention, one general impulse, and one plan, the offense is grand theft. [Citations.]" (Bailey, supra, 55 Cal.2d at pp. 518-519.)

While the precise issue before the Bailey court involved the aggregation of separate petty thefts to constitute a single grand theft, the Bailey court also indicated that a defendant may not be convicted of more than one count of grand theft where all of the takings are committed against a single victim with one intention, one general impulse, and one plan:

"Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. [Citation.] In the following cases it was held that each receipt of property obtained by false pretenses constituted a separate offense for which the defendant could be separately charged and convicted. [Citations.] Although none of these decisions discussed the rule set forth above, it does not appear that the convictions would have been affirmed had the evidence established that there was only one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at p. 519.)

b. Bailey's progeny

Because the underlying facts of cases that involve a series of grand thefts are critical in determining whether a defendant may be convicted of only a single count of grand theft, or instead, multiple counts, we discuss in detail the three principal cases that Jaska cites on appeal in support of her Bailey claim. In People v. Richardson (1978) 83 Cal.App.3d 853 (Richardson), disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682, a jury found the defendant guilty of multiple felonies, including four counts of attempted grand theft, based on "a scheme whereby City of Los Angeles Controller's warrants were obtained by an unauthorized means and made payable to fictitious commercial payees for amounts in excess of $800,000 each." (Richardson, supra, at p. 858.) The Richardson court described the scheme, and its discovery, as follows:

"On November 20, 1974, appellant, using the fictitious name 'Mr. Green,' gave four warrants to Morton Freeman whom he had met through Joyce Lewis. Freeman mailed the warrants to Richard Keates in New York. Although not part of the plan, Keates retained one warrant (counts 5 and 9) and ultimately it was successfully negotiated. Keates gave three of the warrants to Bernard Howard who in turn gave them to Michael Raymond. Approximately one week later, Raymond became an informant for the City of Los Angeles and negotiated a 'reward' for returning the three remaining warrants to the city." (Id. at p. 858.)

Relying on Bailey, the Richardson court reversed three of the defendant's four convictions for attempted grand theft, holding that the evidence in the record established as a matter of law that the defendant had a single objective, i.e., to steal more than $3.2 million from the city. (Richardson, supra, 83 Cal.App.3d at p. 866.) "That four separate warrants were the means by which this end was to be achieved does not 'splinter' the crime into four separate offenses," since the evidence showed that defendant gave all four warrants to the same individual on the same date to precipitate the unified scheme that was carried out by other individuals. (Ibid.)

In People v. Packard (1982) 131 Cal.App.3d 622 (Packard), the defendant, an employee of Paramount Studios, formed a company, and submitted false invoices on behalf of the company to bill the studio for the reproduction of nonexistent scripts. (Id. at p. 625.) The studio issued checks to the company several times per month. Each payment was usually several thousand dollars. (Ibid.) Over the course of three years, the studio paid the defendant's company more than $472,000. (Ibid.) After a bench trial, the defendant was convicted of three counts of grand theft. (Ibid.) Count one was based on invoices submitted " 'on or about the year 1976,' " while counts two and three were based on invoices submitted in the years of 1977 and 1978, respectively. (Id. at p. 626.)

On appeal, citing Bailey, the defendant maintained that he was guilty of only one count of grand theft, as a matter of law. The defendant argued that "the only reasonable conclusion supported by the evidence is that all the takings were pursuant to one general intent and scheme," and that there was no reasonable basis to conclude that he had "three separate schemes, each based neatly on calendar years [as charged], as distinguished from either one general scheme or a separate theft for each invoice and payment." (Packard, supra, 131 Cal.App.3d at p. 626.)

In reversing two of the defendant's three grand theft convictions, the Packard court noted that the People did not contend on appeal that there was a factual basis from which one could infer that the defendant had three separate, yearly schemes. (Packard, supra, 131 Cal.App.3d at p. 627.) In concluding that the defendant was guilty of only one count of grand theft as a matter of law, the Packard court reasoned, "In the absence of any evidence from which it could reasonably be inferred that [defendant] had three separate intents and plans, the only reasonable conclusion supported by the record is that [defendant] had a single continuing plan or scheme for stealing money from Paramount." (Ibid.)

In People v. Kronemyer (1987) 189 Cal.App.3d 314, 324, 364 (Kronemyer), the defendant, an attorney, formed a plan to steal all of the assets of his client's estate while acting as the client's conservator. A jury found the defendant guilty of numerous offenses, including four counts of grand theft premised on the defendant's four withdrawals from the client's savings account "over a four-day period." (Id. at p. 363.) The Kronemyer court reversed all but one of these grand theft convictions, reasoning as follows.

"The People's theory of the case at trial was similar to that in People v. Richardson, supra, 83 Cal.App.3d 853. They argued Kronemyer formed his intent to steal the assets of [his client's] estate before [his client's] June 1977 illness. They alleged, and the facts show, the plan included unlawfully taking all the savings accounts assets. The fact these physically separated funds required four transactions does not avoid the single-plan single-offense rule discussed in People v. Bailey, supra, 55 Cal.2d 514. [Citation.] On the facts of this case, only a single conviction for the takings described in counts five through eight is warranted. We therefore affirm count five and reverse counts six, seven and eight." (Id. at p. 364.)

Courts in a number of other cases have applied Bailey in considering whether a defendant may be convicted of more than one count of grand theft. (See, e.g., People v. Tabb (2009) 170 Cal.App.4th 1142, 1148 (Tabb) [concluding that defendant could not remain convicted of multiple theft offenses in light of jury finding that defendant committed thefts pursuant to a " 'single, overall plan or objective' "]; People v. Brooks (1985) 166 Cal.App.3d 24, 31 (Brooks) [reversing 13 of 14 counts of grand theft stemming from defendant's theft of auction proceeds because "the instant thefts from a single fund arising from a single auction, when seen in the light of the prosecution's own theory of a common scheme of 'kiting' auction proceeds, were the product of a general intent or overall plan, with but a single ultimate object"]; People v. Gardner (1979) 90 Cal.App.3d 42, 48 (Gardner) [reversing three of four counts of grand theft of an animal carcass because defendant acted pursuant to "single purpose and objective of wrongfully removing the hogs slain during the brief hunting episode," and stating that "the felonious act of taking carcasses constitut[ed] the gravamen of the crime as an integral part of the 'whole plan' "]; cf. In re Arthur V. (2008) 166 Cal.App.4th 61, 69 (Arthur V.) [applying Bailey to conclude that the prosecutor was permitted to aggregate the value of the damage caused by juvenile to reach the $400 figure required for a felony vandalism conviction because jury could have reasonably concluded that juvenile acted pursuant to a single objective in light of the fact that "[t]he damage to the windshield and cell phone occurred within a very brief time period, in the same approximate location, and constituted the victimization of the same person"].)

2. Standard of review

Whether multiple takings are committed pursuant to one intention, one general impulse, and one plan is a question of fact for the jury based on the particular circumstances of each case. (Bailey, supra, 55 Cal.2d at p. 519; Packard, supra, 131 Cal.App.3d at pp. 626-627; see also Arthur V., supra, 166 Cal.App.4th at p. 69.) As with all factual questions, on appeal we must review the record to determine whether there is substantial evidence to support a finding that the defendant harbored multiple objectives. (Cf. Tabb, supra,170 Cal.App.4th at pp. 1149-1150; Arthur V., supra, 166 Cal.App.4th at p. 69.) The Bailey doctrine applies as a matter of law only in the absence of any evidence from which the jury could have reasonably inferred that the defendant acted pursuant to more than one intention, one general impulse, or one plan. (See Packard, supra, 131 Cal.App.3d at p. 627.)*fn11

3. Application

In applying Bailey and its progeny, we begin by emphasizing that Bailey prohibits multiple theft convictions where the defendant commits a series of thefts pursuant to a single intention. (Bailey, supra, 55 Cal.2d at p. 519 [precluding multiple convictions where the defendant acts pursuant to "one intention, one general impulse, and one plan" (italics added)].) However, Bailey does not prohibit multiple convictions where the defendant commits a series of thefts based on separate intents, even if the defendant acts pursuant to the same intent on each occasion. (Ibid. [in determining whether one or multiple theft offenses have been committed, the question is "whether the evidence discloses one general intent or separate and distinct intents"].) We also are mindful that "intent . . . is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise." (People v. Buckley (1986) 183 Cal.App.3d 489, 494-495.)

We distill from the cases that have followed Bailey that the following types of evidence are relevant in determining whether a defendant acted pursuant to a single intent in committing a series of thefts: whether the defendant acted pursuant to a plot or scheme (e.g., Richardson, supra, 83 Cal.App.3d at p. 858 [discussing "scheme" to steal city's money]; Brooks, supra, 166 Cal.App.3d at p. 31 [convictions stemmed from "a common scheme" to steal auction proceeds]); whether the defendant stole a defined sum of money or particular items of property (e.g., Kronemyer, supra, 189 Cal.App.3d at p. 364 ["plan included unlawfully taking all the savings accounts assets"]);*fn12 whether the defendant committed the thefts in a short time span (e.g., Gardner, supra, 90 Cal.App.3d at p. 48 [convictions all stemmed from carcasses stolen during single hunting trip]) and/or in a similar location (Arthur V., supra, 166 Cal.App.4th at p. 69 [acts occurred "within a very brief time period, in the same approximate location"]); and perhaps most significantly, whether the defendant employed a single method to commit the thefts (e.g., Packard, supra, 131 Cal.App.3d at p. 625 [defendant repeatedly defrauded company by submitting phony invoices]).

In this case, all of these factors support the conclusion that Jaska has not demonstrated, as a matter of law, that the only reasonable conclusion that the jury could have drawn was that she acted pursuant to one intention, one general impulse, and one plan. Unlike Richardson and Kronemyer, there was no evidence in this case that Jaska acted pursuant to a plan or scheme to steal a defined set of BTP's assets. Rather, the evidence suggests that Jaska stole various sums of money in an opportunistic manner, essentially whenever the need and/or occasion arose. Unlike in Gardner and Arthur V., Jaska did not commit the charged thefts over a short time span. Rather, there is substantial evidence in the record that Jaska committed numerous fraudulent acts over a four-year period. Finally, and most significantly, in most of the cases in which courts have concluded that a defendant may be convicted of only a single count of grand theft, the defendants have engaged in the same conduct and in the same manner, although on multiple occasions. In this case, in contrast, Jaska employed a variety of distinct methods to steal from BTP. She improperly withdrew money from the petty cash account, used company funds to pay her personal American Express and Visa credit card accounts, took unauthorized pay and reimbursement, and used BTP's funds to make the monthly lease payments on the Volvo. The five counts reflect the many ways in which Jaska abused her position of trust to embezzle money from BTP.

Under these circumstances, we conclude that Jaska has not demonstrated that she had only one intent as a matter of law, because there is substantial evidence from which the jury could have reasonably inferred that Jaska did not commit all of charged thefts pursuant to "one intention, one general impulse, and one plan." (Bailey, supra, 55 Cal.2d at p. 519.) Accordingly, we reject Jaska's contention that her convictions on all but one of the counts of grand theft by embezzlement (counts 1-5) must be reversed.

B. The trial court did not err in permitting an expert witness to testify based on certain unauthenticated exhibits; Jaska's trial counsel did not provide ineffective assistance in failing to object to the testimony or the exhibits

1. The trial court did not err in admitting testimony of the Franchise Tax Board special agent

Jaska contends that the trial court erred by allowing a prosecution expert witness to give an opinion based on figures provided by the prosecution that were not authenticated. We conclude that there was no error.

During direct examination, the prosecutor asked Franchise Tax Board special agent Perez a series of hypothetical questions, using figures provided on exhibit No. 383, entitled "Unreported Income 1999-2001," and exhibit No. 385, entitled "Income." The exhibits purported to depict the Jaskas' unreported, reported and total income for the three years. Both of these exhibits were prepared by the San Diego County District Attorney's office. Perez testified that he did not know the source of the information that was used in preparing the exhibits. Neither exhibit was admitted in evidence.

When the prosecutor requested permission to publish exhibit No. 383 to the jury, defense counsel stated that he had no objection "as long as these are considered hypothetical . . . ." The court clarified that the exhibit was being used to assist in the questioning of the witness, as opposed to constituting evidence in and of itself. The court explained that the exhibit was being used to "make the testimony of the witness clearer," and told the jury not to assume the information in the exhibit "to be true or untrue." Similarly, when the prosecutor referred to exhibit No. 385, the court reminded the jury that the exhibit was being used "merely to help the testimony."

During cross-examination, Perez said that while he had not verified the numbers in exhibit No. 383, another Franchise Tax Board agent who had worked on the case had verified the accuracy of the information using a sampling method. That agent was on maternity leave at the time of trial.

California law permits a person with "special knowledge, skill, experience, training, or education" in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (Evid. Code, § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) Evidence Code section 801 limits expert opinion testimony to an opinion that is "[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates . . . ." (Evid. Code, § 801, subd. (b).) A trial court has discretion " 'to weigh the probative value of inadmissible evidence relied upon by an expert witness . . . against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 619.)

"Expert testimony may also be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation .] . . . [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to 'state on direct examination the reasons for his opinion and the matter . . . upon which it is based,' an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]" (People v. Gardeley, supra, 14 Cal.4th at pp. 618-619.)

Jaska fails to present any argument that the exhibits at issue are not the type of material on which tax experts reasonably rely in forming their opinions in criminal tax reporting cases. Jaska has thus failed to demonstrate that there was anything improper about Perez basing his opinions on exhibit Nos. 383 and 385.

Further, the court instructed the jury: "Witnesses were allowed to testify as experts and give opinions. You must consider the opinions, but you are not required to accept them as true or correct. . . . [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses in general. In addition[,] consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert may be asked a hypothetical question. A hypothetical asks the witness to assume certain facts are true, and to give an opinion based on the assumed facts. It's up to you to decide whether an assumed fact has been proved. If you [] conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion." (CALCRIM No. 332.)

The jury was thus expressly directed that it was to determine the credibility and weight of Perez's opinions. Nothing in the record suggests that the jury was directed not to scrutinize the information contained in exhibit Nos. 383 and 385.

To the extent that Jaska contends that the trial court erred by not requiring the prosecutor to demonstrate that exhibit Nos. 383 and 385 were based on admissible evidence (see Evid. Code, § 400), or that the information in these exhibits had been authenticated (see Evid. Code, § 1401), she is mistaken. These requirements go to the admissibility of evidence. Exhibit Nos. 383 and 385 were not admitted in evidence. Rather, the exhibits were used only for demonstrative purposes during Perez's testimony. (People v. Reaves (1974) 42 Cal.App.3d 852, 858.)

2. Jaska's trial counsel did not provide ineffective assistance of counsel by failing to object to the expert testimony or the exhibits

Jaska contends that her trial counsel provided ineffective assistance by failing to object to the information contained in exhibit Nos. 383 and 385. This contention is without merit.

To prevail on a claim of ineffective assistance of counsel, Jaska must show that "counsel's representation fell below an objective standard of reasonableness" (Strickland v. Washington (1984) 466 U.S. 668, 688) and that "the deficient performance prejudiced the defense." (Id. at p. 687.) In view of our conclusion that the prosecutor properly used exhibit Nos. 383 and 385 during Perez's testimony (see pt. III.B.1, ante), it necessarily follows that counsel's failure to object to the use of these exhibits did not constitute ineffective assistance of counsel. (See People v. Anderson (2001) 25 Cal.4th 543, 587 [rejecting contention that counsel was ineffective for failing to make evidentiary objection because "[c]counsel is not required to proffer futile objections"].)

C. The trial court did not abuse its discretion by refusing to release more than $100,000 from a lis pendens recorded on Jaska's residence pursuant to section 186.11, subdivision (e)(2), to allow her to retain counsel of her choice

On January 11, 2005, the trial court granted the prosecution's petition filed under section 186.ll, subdivision (e)(2), to impose a lis pendens on the Jaskas' residence. Jaska filed a motion to lift the lis pendens, in order to allow her to pay legal fees. At the hearing on the motion, Jaska's counsel estimated that the Jaskas had approximately $400,000 to $450,000 in equity in the home. Counsel also stated that the equity in the home was the only asset that would be sufficient to pay anticipated attorney fees of $300,000. The trial court denied Jaska's motion to lift the lis pendens in toto, but said that the court would lift the lis pendens to the extent that $100,000 would be available for attorney fees. Jaska's counsel responded that that amount would not be sufficient to pay the $300,000 in anticipated fees. The court then granted Jaska's counsel's request to be relieved, and appointed counsel to represent Jaska.

Jaska contends that the trial court abused its discretion and violated her Sixth Amendment right to counsel of her choice by denying her request to release more than $100,000 from the lis pendens that was imposed on her assets under section 186.11. The contention is without merit.

In addition to being known as the Aggravated White Collar Crime Enhancement Act, section 186.11 is also sometimes referred to as the "Freeze and Seize Law." (People v. Green (2004) 125 Cal.App.4th 360, 363.) The statute creates a sentencing enhancement (§ 186.11, subd. (a)(1-3)), and a procedure for preserving and levying on the defendant's property and assets (§ 186.11, subds. (e-k)). When an aggravated white collar crime enhancement has been alleged, "any asset or property that is in the control of th[e defendant] . . . may be preserved by the superior court in order to pay restitution and fines imposed pursuant to this section." (§ 186.11, subd. (e)(1).) The prosecutor may petition for "a temporary restraining order, preliminary injunction, the appointment of a receiver, or any other protective relief necessary to preserve the property or assets. This petition shall . . . be pendent to the criminal proceeding and maintained solely to effect the criminal remedies provided for in this section." (§ 186.11, subd. (e)(2).)

"Section 186.11, like other provisions of the Penal Code (e.g., § 1202.4 et seq.) implements the state Constitution's declaration 'that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.' (Cal. Const., art. I, § 28, subd. (b).) The principal focus of section 186.11 . . . is to facilitate the payment of restitution by 'prevent[ing] dissipation or secreting of assets or property . . . .' (Id., subd. (e)(2).)" (People v. Semaan (2007) 42 Cal.4th 79, 86.)*fn13

The United States Supreme Court has held that forfeiture of property necessary for retention of counsel is constitutional. (Caplin & Drysdale, Chartered v. United States (1989) 491 U.S. 617, 619, 626, 632 (Caplin).) Noting that the United States government has "a long-recognized and lawful practice of vesting title to any forfeitable assets . . . at the time of the criminal act giving rise to forfeiture," the Caplin court rejected a defendant's claim that the Sixth Amendment trumps the government's interest in returning property gained by criminal means to its rightful owner. (Caplin, supra, at p. 627.) As the Caplin court explained, "A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. A robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense." (Id. at p. 626.) "There is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right." (Id. at p. 628.)

"The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. '[A] defendant may not insist on representation by an attorney he cannot afford.' [Citation.]" (Caplin, supra, 491 U.S. at p. 624.)

The trial court reasonably concluded that it was necessary to maintain the lis pendens on Jaska's property in order to facilitate the payment of any restitution and fines that might be imposed in the action.*fn14 We conclude that the trial court did not abuse its discretion by refusing to release more than $100,000 from the lis pendens imposed under section 186.11. We further conclude that the court did not violate Jaska's Sixth Amendment right to counsel in making this ruling. (See Caplin, supra, 491 U.S. 617.)

D. Jaska is not entitled to reversal of the $300,000 fine that the trial court imposed pursuant to section 186.11, subdivision (c)

Jaska contends that the $300,000 fine that the trial court imposed pursuant to section 186.11, subdivision (c), was improper because (1) it was not imposed at the time of sentencing; (2) it was imposed without prior notice and in her absence, thereby violating her due process rights; and (3) it is not set forth in the abstract of judgment. Jaska also argues that the trial court was not authorized to impose a fine pursuant to section 186.11, subdivision (c), which mandates the imposition of a fine for certain defendants convicted of "two or more felonies," because, she maintains, she should have been convicted of only one count of grand theft. (See pt. III.A., ante).

1. Factual and procedural background

At sentencing, the trial court imposed a restitution fine in the amount of $3,200 under section 1202.4*fn15 and also reserved jurisdiction over the issue of restitution.

At a hearing several months later, the court ordered Jaska to pay $499,999 in restitution with 10 percent interest per annum from May 1, 2002, pursuant to section 186.11, subdivision (d). (See pt. III.E., post.) After the court made this order, the prosecutor argued that section 186.11, subdivision (c) required that the court impose an additional fine against Jaska. The court discussed this issue with the prosecutor and defense counsel, and concluded that the court still had jurisdiction to impose such a fine. The prosecutor requested that the court impose a fine in the amount of $300,000 pursuant to section 186.11, subdivision (c). In making this request, the prosecutor noted that the statute authorized a fine of up to "double the value of the taking." The prosecutor argued, "[T]he jury clearly found $150,000 beyond a reasonable doubt [¶] . . . as the amount of the loss, maybe more, but I think that [is] the appropriate figure to double for purposes of the fine under [section] 186.11, [subdivision] (c) . . . ."

Jaska's counsel raised two objections to the court's imposition of a fine pursuant to section 186.11, subdivision (c). Jaska's counsel first argued that a restitution hearing must be conducted within 90 days of the date of sentencing, and noted that Jaska had been sentenced more than 90 days prior to the restitution hearing. Counsel also argued, "Now, as far as the $150,000 being doubled, [I] object to that, and . . . there may be [an] ex post facto issue . . . . I'll object to any additional fine being imposed, because it was not imposed initially, and I don't think there should be one."

After hearing argument from both counsel, the court imposed a $300,000 fine under section 186.11, subdivision (c).

2. Section 186.11, subdivision (c)

Section 186.11, subdivision (c) provides:

"Any person convicted of two or more felonies, as specified in subdivision (a), shall also be liable for a fine not to exceed five hundred thousand dollars ($500,000) or double the value of the taking, whichever is greater, if the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact. However, if the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), but not more than five hundred thousand dollars ($500,000), the fine shall not exceed one hundred thousand dollars ($100,000) or double the value of the taking, whichever is greater."

3. Application

We reject Jaska's contentions with respect to the section 186.11, subdivision (c) fine. First, with respect to the argument that it was too late for the court to impose the fine, the trial court's failure to impose the fine at the time of the sentencing hearing is not fatal. The trial court was required to impose a fine pursuant to section 186.11, subdivision (c), which provides in relevant part, "Any person convicted of two or more felonies, as specified in [section 186.11] subdivision (a), shall also be liable for a fine . . . ." (Italics added.) A trial court's failure to impose a mandatory fine constitutes an unauthorized sentence. (People v. Walz (2008) 160 Cal.App.4th 1364, 1368.) A trial court may correct an unauthorized sentence at any time. (People v. Picklesimer (2010) 48 Cal.4th 330, 338.)

With respect to Jaska's due process argument, Jaska is mistaken in her assertion that she was not present when the fine was imposed. The record shows that Jaska was in fact present at the August 22, 2008 post-sentencing hearing at which the trial court imposed the fine. The reporter's transcript for the August 22 hearing states, "The defendant present with her counsel." As to Jaska's contention that she was not put on notice about a potential section 186.11, subdivision (c) fine prior to the August 22 hearing, Jaska has forfeited this claim by failing to raise an objection on this ground at the hearing itself. (See, e.g., People v. Gonzalez (2003) 31 Cal.4th 745, 754-755 [objection to imposition of fine is forfeited if not made during the hearing, as long as defendant was notified of the amount sought during the hearing and was given a meaningful opportunity to object before the sentence was imposed].)

The fine is not set forth in the abstract of judgment because the trial court imposed the fine after the abstract of judgment was prepared. The court clerk should have filed an amended abstract of judgment after the imposition of the section 186.11, subdivision (c) fine and the court's order to pay $499,999 in restitution under section 186.11, subdivision (d). We direct the trial court to prepare an amended abstract of judgment reflecting these actions by the court, on remand.

Finally, Jaska's claim that section 186.11 does not apply to this case is based on her contention that she committed only one count of grand theft, and that two felony convictions are required before a fine may be imposed under section 186.11, subdivision (c). We rejected this contention in part III.A, ante. Jaska thus stands convicted of five felony counts of grand theft.

E. The trial court did not err in ordering Jaska to pay $499,999 in restitution

Jaska contends that the $499,999 restitution order must be reversed because the trial court did not hold an evidentiary hearing concerning the amount of restitution that Jaska should be required to pay. The contention is without merit.

1. Governing law

a. Legal basis for the trial court's restitution order

Section 186.11, subdivision (d), provides: "Any person convicted of two or more felonies, as specified in subdivision (a), shall be liable for the costs of restitution to victims of the pattern of fraudulent or unlawful conduct, if the existence of facts that would make the person subject to the aggravated white collar crime enhancement have been admitted or found to be true by the trier of fact." It is undisputed both that the jury found Jaska guilty of more than two qualifying felonies, and that the jury found facts that rendered Jaska subject to the white collar crime enhancement.

b. The trial court's determination of the amount of restitution

With respect to the amount of restitution, the probation report recommended that Jaska be ordered to pay $628,164.47 in restitution to BTP. "When the probation report includes information on the amount of the victim's loss and a recommendation as to the amount of restitution, the defendant must come forward with contrary information to challenge that amount. '[A] defendant's due process rights are protected if he is given notice of the amount of restitution sought and an opportunity to contest that amount; the rigorous procedural safeguards required during the guilt phase . . . are not required.' [Citation.]" (People v. Foster (1993) 14 Cal.App.4th 939, 947, superseded by statute on other grounds as noted in People v. Sexton (1995) 33 Cal.App.4th 64, 70; see also People v. Cain (2000) 82 Cal.App.4th 81, 86.)

c. The standard of review

The decision to grant restitution will not be disturbed on appeal absent an abuse of discretion. (People v. Keichler (2005) 129 Cal.App.4th 1039, 1045.) " ' "When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court." ' [Citations.]" (People v. Baker (2005) 126 Cal.App.4th 463, 467.)

2. Application

Jaska received an adequate hearing to determine the amount of restitution. After meeting in chambers with the parties, the trial court announced in open court that the evidence that it had heard during the trial supported an award of $499,999 in restitution. The court added, "I think actually based on that evidence it could support a restitution [order] of some more than that, but the jury found the over $500,000 [allegation] not true, and I think that that's something I have to take into consideration in setting restitution."

Jaska's objection was not based on the sufficiency of the evidence presented at trial to support a $499,999 restitution order. Rather, she maintained that in setting a restitution amount under section 186.11, subdivision (d), the court should focus on the jury's finding that she took property valued at more than $150,000.*fn16 Defense counsel stated, "[M]y argument would still be that the more accurate figure to go with would be $150,000 and 1 cent, and that would make . . . just as much sense, if not more, than going with the upper limit of $499,999." Counsel did not request the opportunity to present additional evidence on the amount of restitution.

Jaska received due process, since she was provided notice of the amount of restitution in the probation report, and had the opportunity to challenge the figure. That is all that the law requires. The court heard the evidence at trial and explained that the evidence supported a restitution order in an amount higher than $500,000. Jaska bore the burden of producing evidence to challenge the amount of restitution that the court indicated it intended to order. She chose not to present additional evidence at the restitution hearing. Jaska thus has not demonstrated that the trial court abused its discretion in ordering her to pay $499,999 in restitution.

F. In light of the Legislature's January 2010 amendment of former section 4019, the case must be remanded to the trial court for recalculation of Jaska's conduct credits

At the time of Jaska's sentencing, former subdivisions (b) and (c) of section 4019 allowed a defendant to earn up to two days of presentence behavior credit for each six-day period of confinement. (Added by Stats. 1976, ch. 286, § 4, amended by Stats. 1978, ch. 1218, § 1, & Stats. 1982, ch. 1234, § 7.) The January 25, 2010 amendments to section 4019 allowed a defendant to earn up to two days of presentence behavior credit for every four-day period of confinement. (Amended § 4019, subds. (b)(1), (c)(1); amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28X, § 50, eff. Jan. 25, 2010.)*fn17 Subdivision (f) of the 2010 version of section 4019 provided that "if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody."*fn18

Jaska contends that she is entitled to a recalculation of her presentence conduct credits under the 2010 version of section 4019, which, she asserts, applies retroactively to her since the judgment in her case is not yet final. A split has arisen in the appellate courts regarding whether the amendments that took effect on January 25, 2010, apply retroactively to defendants like Jaska, whose sentences were imposed before the amendments became effective, but whose underlying convictions were not yet final on appeal on January 25, 2010. Some appellate court decisions have held that amended section 4019 applies retroactively pursuant to the holding in In re Estrada (1965) 63 Cal.2d 740 (Estrada), because the amendments mitigate punishment. Other decisions have held that amended section 4019 does not apply retroactively, because the Legislature did not indicate that it intended the amendments to apply retroactively. The Supreme Court is currently reviewing the issue.*fn19

We recognize that the proper resolution of this issue is not clear-cut, and we await further guidance on the matter from the Supreme Court. However, in the absence of such guidance, we conclude that the cases holding that the January 25, 2010 amendments to section 4019 should apply retroactively because they effectively mitigate punishment, and are more persuasive than those that hold that the amendments do not apply retroactively.

In Estrada, supra, 63 Cal.2d at page 745, the Supreme Court established the general rule that an enactment that reduces the punishment for a crime operates retroactively, so that the lighter punishment is imposed. The Estrada court stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.)

The general principle established in Estrada applies to the amendments to section 4019 that took effect on January 25, 2010. The January 25, 2010 amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits, and thus, constituted a reduction in punishment for those less serious offenders who have demonstrated good behavior while in custody. The People contend that the underlying purpose of the January 25, 2010 amendments suggests that the Legislature did not intend retroactive application. Specifically, the People argue that purpose of the January 25, 2010 legislative amendments is twofold: one, to address budgetary concerns by reducing prison populations, and two, to create further incentives for good behavior. According to the People, the first purpose may be served by either retroactive or prospective application; however, the second purpose is served only by prospective application. Under the People's analysis, if the Legislature's only concern had been budgetary, it could have better served that purpose by granting additional credits to all prisoners, regardless of conduct. The fact that the Legislature did not do this suggests that the Legislature had the additional purpose of creating incentives for good behavior, indicating the Legislature's intention that the January 25, 2010 amendments apply prospectively.

However, if the Legislature's intention was to reduce prison populations, but to do so responsibly by providing early release only for less serious offenders who have demonstrated good behavior, such a purpose can be served by retroactive application of the 2010 version of section 4019. Rather than simply granting additional credits to all prisoners, the Legislature increased credits only for those prisoners who earned them. Thus, only those prisoners who have demonstrated good behavior, both in the past and going forward, would be entitled to the additional credits under the January 25, 2010 amendments.

In addition, the People's argument overlooks the fact that even if amended section 4019 were to be applied prospectively, it would nevertheless provide additional credits for past behavior, since a prisoner sentenced shortly after January 25, 2010, would be granted the enhanced benefits, notwithstanding the fact that some or much of his or her presentence custody occurred before the effective date of that legislation, and, therefore, at a time when the additional incentives were not in place.

Accordingly, we conclude that pursuant to Estrada, the 2010 version of section 4019 applies retroactively to this case. We remand the matter to the trial court for a determination of any additional presentence credits to which Jaska may be entitled.

IV.

DISPOSITION

The judgment is reversed to the extent that it fails to award Jaska presentence custody credits under the amended version of section 4019. In all other respects, the judgment is affirmed.

The matter is remanded to the trial court for a determination of any additional presentence credits to which Jaska may be entitled pursuant to this opinion. The trial court is instructed to prepare an amended abstract of judgment to reflect any additional custody credits awarded, as well as the $300,000 fine and $499,999 restitution order. The court is directed to file the amended abstract of judgment with the California Department of Corrections and Rehabilitation.

I CONCUR: McDONALD, J.

BENKE, J., concurring and dissenting.

I do not agree with the majority that Joyce Jaska is entitled to presentence credits pursuant to the version of Penal Code*fn20 section 4019 in effect at the time of her sentencing. In addition to the reasons noted in my dissent in People v. Zarate (2011) 192 Cal.App.4th 939, 945-947, I offer the following.

My colleagues conclude that Jaska is entitled to credits existing between January 25, 2010, and September 28, 2010, because in their view, the legislative changes applicable in section 4019 reduce Jaska's punishment. The basis for the majority's conclusion is language from In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada): "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply."

The majority concludes that because her convictions are not yet final, Jaska is entitled to application of what it phrases as the general rule of Estrada. Under this rule, if the legislative intent regarding retroactive application of lessened punishment is unclear, the principle noted in Estrada controls, even in the presence of the rule of construction contained in section 3 which mandates prospective application of the law in the absence of express language of retroactivity.

My view of Estrada, and the direction it gives, is somewhat different from that of my colleagues.

I start by observing that the inference relied upon by my colleagues is not a rule, as is suggested by the majority. As the court in Estrada expressly states, it is an inevitable inference the Legislature intended to apply to every case in which it could apply. Respectfully, there is a significant difference between a rule and an inference. A rule denotes a principle that governs. An inference on the other hand merely suggests.

I view the inference noted in Estrada as a factor the court considered in applying the rule Estrada actually pronounces: "Where the Legislature has not set forth in so many words what it intended, the rule of construction [section 3] should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent." Estrada, supra, 63 Cal.2d at p.746.)

In Estrada the question was whether the defendant was entitled to an earlier parole date because of changes to section 3044. The court in Estrada found that in addition to the inference noted above, there were additional factors sufficient to support a conclusion the Legislature intended retroactive application of the changes to section 3044.

In short, using that court's own terminology, Estrada did not require the inference of legislative intent be followed blindly in the face of other factors pointing to a different conclusion. Rather, the inference noted in Estrada was but one consideration in addition to other facts and circumstances. Viewed in this way, Estrada does not pit the legislative inference against the rule of construction found in section 3; rather, it places them in harmony with each other.

Accepting that the language relied upon by my colleagues is not a rule, but rather an inference and factor to consider in reaching any conclusion with respect to legislative intent, we are in any given case led to at least three options. The first is that examining all factors and circumstances, legislative intent can be ascertained, in which case, like the situation in Estrada, that intent must be carried out. The second is that the totality of facts and circumstances may point to a conclusion that despite the inference, the Legislature intended the new and lesser punishment not be applied to non-final cases. Lastly, as Estrada instructs, if after examining all facts and circumstances, which would include the inference, intent still cannot be ascertained, we must adopt the presumption of prospective application embodied in section 3. (In re Estrada, supra, 63 Cal.2d at p. 746; see also People v. Alford (2007) 42 Cal.4th 749, 753-754.)

It would serve little purpose here repeating the various views and supporting arguments respecting section 4019 which are contained in existing cases. There have been multiple legislative changes in the credits awarded in section 4019. The changes are arguably related not only to policies underlying the awarding of credits in general, but the awarding of credits as they relate to budget matters, and specific categories of criminal offenders. As my colleagues state, at this point the law is far from clear. I agree.

At this point in time, given the absence of clarity or confident direction from the Legislature, I believe Estrada compels a conclusion that section 3 controls and therefore the changes to section 4019 are not retroactive.

In all other respects I agree with the majority opinion.

BENKE, Acting P. J.


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