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Name: People v. Jaska
Case #: D057204
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/27/2011

The question of whether multiple takings from a single victim are a single offense committed pursuant to one intention, one general impulse, and one plan is a question of fact under People v. Bailey (1961) 55 Cal.2d 514, 519. The case involved grand theft by embezzlement over several years. One count involved withdrawals of large amounts of money from a petty cash fund. A second count involved unauthorized monthly lease payments for her automobile. Two other counts included many monthly payments for her personal American Express and Visa credit card bills. These were different ways of abusing the position of trust and cannot as a matter of law be considered the result of only one intent. There was substantial evidence to support four counts of conviction.
Expert opinion testimony may be based on documents that have not been authenticated and have not been introduced into evidence. The counts of filing false income tax returns were based in part on expert testimony from a Franchise Tax Board special agent. Hypothetical questions were based on figures from another agent who had verified the accuracy of the information based on a sampling method. The exhibit containing the figures was published to the jury with the defense counsel’s agreement, so long as they were considered hypothetical. Expert testimony may be premised on material that is not admitted into evidence, so long as it is material of a type that is reasonably relied on by experts in that particular field in forming opinions. Tax experts reasonably rely on such figures as used in this case.
The “Freeze and Seize Law” (Pen. Code, sec. 186.11), used to establish a lis pendens on Jaska’s home, was not an abuse of discretion and did not result in a violation of the Sixth Amendment right to counsel when only $100,000 was released for attorney’s fees. There was sufficient equity in the Jaska home that it would have paid the anticipated attorney’s fees of $300,000. When the trial court released only $100,000, retained counsel requested to be relieved and new counsel was appointed to represent Jaska. There is no Sixth Amendment right to spend another person’s money for the attorney of choice. There is no right to insist on representation by an attorney the accused cannot afford.
Imposition of the Penal Code section 186.11 fine at a restitution hearing several months after the sentence was imposed was not too late and not too much. At the initial sentencing hearing, the court imposed a restitution fine and reserved jurisdiction over the issue of restitution. Several months later, after a hearing, the court set direct victim restitution and imposed the Aggravated White Collar Crime Enhancement at $300,000, double the valued of the taking as found by the jury. The fine is mandatory and the failure to impose it would have been an unauthorized sentence. Other objections were forfeited when they were not made at the time the fine was imposed.