Filed 4/30/18 P. v. Jellinek CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT JELLINEK,

Defendant and Appellant.
D072354



(Super. Ct. No. SCN357327)

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.
Benjamin B. Kington, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Robert Jellinek of four counts of perjury (counts 1, 3-5; Pen. Code, § 118, subd. (a)) and one count of preparing a false document for a fraudulent purpose (count 2, § 134). Jellinek was granted probation. Jellinek appeals contending the statute of limitations on counts 1 through 4 had expired prior to filing the complaint and information. He argues, for the first time on appeal that the prosecution's failure to plead any basis for tolling of the statute of limitations should result in dismissal of the four counts. In the alternative he argues we should remand the case for a jury trial on the question of whether the statute of limitations expired before charges were filed.
Based on our review of the record we can determine that the criminal acts Jellinek committed were not discovered until October 2013, thus all of the convictions on the challenged counts are proper.
PROCEDURAL BACKGROUND
Jellinek was charged with five felony offenses and dates of commission ranging from 2010 to 2013. The information was filed on October 12, 2016. The counts alleged commission dates as follows: Count 1 (perjury) January 28, 2010; count 2 (false document) January 22, 2010; count 3 (perjury) February 3, 2011; count 4 (perjury) December 22, 2011; count 5 (perjury) May 30, 2013.
The parties agree the statute of limitations for these fraud-based offenses is section 801.5, which requires offenses such as violations of sections 118, subdivision (a) and 134 to be brought within four years of their discovery. (§ 803, subd. (c).) Jellinek does not challenge count 5 since it was brought within four years of the offense.
STATEMENT OF FACTS
Jellinek does not challenge the admissibility or the sufficiency of the evidence to support his convictions. Accordingly, we will set forth an abbreviated statement of facts to provide context for the discussion which follows.
This case centered around two versions of an e mail sent by Jellinek's former employer. One version contained disparaging language about Jellinek's age, and the prosecution's theory was that Jellinek inserted that language for use during a civil lawsuit. During trial, the parties referred to the version of the e mail with the additional language as the "ageism email," and the version without that language as the "non-ageism email."
From 2007 to 2009, Jellinek worked for an oil and gas equipment company. Jellinek was the manager for the Rocky Mountains region, supervising sales representatives.
On March 4, 2009, Jellinek resigned in an e mail to his employer following a heated exchange about a sales commission. A dispute over unemployment benefits, and then a lawsuit, followed.
One of the claims in the lawsuit was for age discrimination, and one of the key documents was an e mail produced in discovery by Jellinek, purportedly sent to him by the employer. The e mail concerned Jellinek's failure to file sales reports and contained language referencing Jellinek's "aging memory" and "senility." A forensic examination of Jellinek's external hard drive in October 2013, however, disclosed a version of this e mail without any reference to Jellinek's age or senility. The additional language in the ageism e mail stated: "Your ignorance or your incompetence continues to be unacceptable! Do you need counseling on simple job performance as well as understanding my past legal issues? Are you on medications? What is going on? Perhaps your aging memory or senility have caused you to forget or maybe not completely aware."
During the lawsuit, the company requested discovery from Jellinek including electronically stored information. Jellinek produced various documents including the ageism e mail and signed a form under penalty of perjury stating that he had complied with his discovery obligations and that true and correct copies of the relevant documents were produced. The form was signed January 28, 2010.
At a deposition on February 3, 2011, Jellinek testified the employer sent him the ageism e mail.
On December 22, 2011, Jellinek signed a declaration in connection with a motion for summary judgment stating that the employer sent him the ageism e mail. And at trial on May 30, 2013, Jellinek again testified that the employer sent him the ageism e mail.
During cross-examination at the civil trial, Jellinek for the first time mentioned a hard drive that had not been produced in discovery. The civil court ordered Jellinek to preserve the hard drive, and it was eventually turned over to the employer's lawyers and forensically examined.
The forensic examination revealed that the nonageism e mail had been sent from the employer's America Online (AOL) account to Jellinek's work account on February 29, 2008. On March 10, 2009, the e mail was forwarded from Jellinek's work account to his personal account. An altered version of the e mail containing the ageism language was discovered in a text file. The metadata, information from the computer's operating system about the file, showed the file was created on January 22, 2010, by the author "Bob Jellinek."
Defense Evidence
Jellinek's daughter testified she had overheard phone conversations where the employer screamed at Jellinek including comments such as: "What the fuck is wrong with you? What is wrong with your brain?" "You stupid old man."
The company could access Jellinek's computer, and the daughter had seen the computer being controlled remotely.
DISCUSSION
A. Background
In this appeal, Jellinek challenges counts 1 through 4 on statute of limitations grounds. He does not challenge his conviction on count 5. The issue of the running of the statute of limitations was not raised in the trial court nor did the prosecution plead facts in the information to support tolling of the statute.
B. Legal Principles
The failure of the parties to raise the statute of limitations in the trial court does not preclude the defendant from raising the issue for the first time on appeal "when the charging document indicates on its face that the action is time-barred." (Williams, supra, 21 Cal.4th at p. 341.) Where the issue is raised on appeal we review the record to determine if the crime charged fell within the applicable statute. (Ibid.) If the record shows the action was not time-barred, the conviction may be affirmed even though the prosecutor failed to plead facts which would toll the running of the statute. (People v. Ortega (2013) 218 Cal.App.4th 1418, 1427-1428; Williams, supra, at p. 346.) We review the record under the independent review standard to determine whether the charges were filed within the relevant statutory period. (People v. Wetherell (2014) 223 Cal.App.4th Supp. 12, 16-17.)
Fraud-related offenses, such as described in sections 118 and 134 must be "commenced" within four years of their discovery. (§§ 801.5, 803, subd. (c).) Our review on appeal requires us to determine if the record shows that the date of discovery of the offense was within four years of the defendant's arraignment on a complaint charging the offense. (See Williams, supra, 21 Cal.4th at p. 341; People v. Smith (2002) 98 Cal.App.4th 1182, 1191.) Discovery occurs when " 'law enforcement authorities or the victim [has] actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud.' " (People v. Petronella (2013) 218 Cal.App.4th 945, 956.) Where the defendant has actively continued fraudulent activity, which was intended to prevent discovery of the crime, the person cannot rely on the delay in discovery to argue that the appropriate statute of limitations had run. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 331.)
C. Analysis
These offenses all arise from Jellinek's false statements and documents during his civil suit against his former employer for age discrimination. The record demonstrated Jellinek created the portions of the e mail from his employer, which had the age discrimination language (the ageism e mail). He repeatedly testified falsely about the creation of the document. The offenses in counts 1 through 4 occurred in 2010 and 2011. Although he turned over two versions of the e mail during discovery in January 2010, he continuously maintained the ageism e mail was written by the employer. He had wiped the hard drive of his company computer and did not disclose he had another hard drive which would show he was the one who added in the offending words in the e mail in order to support his lawsuit. The first disclosure of the existence of another hard drive was during Jellinek's cross-examination at trial when he apparently inadvertently mentioned the existence of the second hard drive. However, he continued to maintain that the ageism e mail was written by the employer even after the inadvertent disclosure of the second hard drive.
The employer's counsel was finally able to obtain the second hard drive after the completion of testimony. It was sent to a forensic examiner for review. The record shows that the examination, and discovery of Jellinek's action occurred in October 2013.
Although two versions of the e mail were turned over in discovery, along with hundreds of other documents, they would not disclose that it was Jellinek who added the key words to the document as opposed to something that may have occurred with the employer's processing of the message. Indeed, he continued to testify falsely, both verbally and in writing that the language was written by the employer.
Given Jellinek's continuous, fraudulent actions to hide the true source of the key words in the e mail, we can determine the actual date of discovery of actions which raised suspicion of wrongdoing was October 2013. He was arraigned on these charges in April 2016, within the four years from discovery of the offenses. Thus, there was no violation of the statute of limitations in the prosecution of any of the counts in this case.
DISPOSITION
The judgment is affirmed.


HUFFMAN, Acting P. J.

WE CONCUR:



O'ROURKE, J.



GUERRERO, J.