People v. Vallerga

• Citation: 136 Cal.Rptr. 429,67 Cal.App.3d 847
• Decision Date: 08 February 1977
• Docket Number: Cr. 27867
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack VALLERGA, Defendant and Appellant.
• Court: California Court of Appeals

Page 429

136 Cal.Rptr. 429

67 Cal.App.3d 847

The PEOPLE, Plaintiff and Respondent, v. Jack VALLERGA, Defendant and Appellant.

Cr. 27867.

Court of Appeal, Second District, Division 3, California.

Feb. 8, 1977.

As Modified on Denial of Rehearing March 2, 1977.

Hearing Denied April 28, 1977.

Murphy, Thornton, Hinerfeld & Cahill, Robert E. Hinerfeld, Richard A. Murphy and David Elson, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., and Howard J. Schwab and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

FORD, Presiding Justice.

In a trial by jury, defendant Jack Vallerga was found guilty of the following offenses: (1) violation of section 1090 of the Government Code ¹ in that on or about April 9, 1973, defendant did 'wilfully, unlawfully and feloniously have a financial interest in a contract which contract was made by him in his official capacity as Assessor of Orange County, California' (count I); (2) violation of section 424, subdivision (1), of the Penal Code ² in that on or about March 12, 1973, defendant who, as Assessor of the County of Orange, was charged with the transfer and disbursement of public moneys, 'did unlawfully appropriate such public monies to his own use, to wit: to purchase an airline ticket for his personal use and benefit' (count II); (3) violation of section 424, subdivision (2), of the Penal Code in that on or about March 12, 1973, defendant 'did use such public monies for an unlawful purpose, to wit: to purchase an airline ticket for his personal use and benefit' (count III); (4) violation of section 424, subdivision (7), of the Penal Code in that on or about April 9, 1973, defendant 'did wilfully omit and refuse to pay over to the Treasurer of the County of Orange, California, money received by him under a duty imposed by law to pay over the same, to wit: money received by him as reimbursement for purchase of airline tickets, which airline tickets were purchased by the County of Orange' (count IV); (5) violation of section 424, subdivision (7), of the Penal Code in that on or about June 5, 1973, defendant 'did wilfully omit and refuse to pay over to the Treasurer of the County of Orange, money received by him under duty imposed by law to pay over the same, to wit: money received by him for the sale of the Single-family Residential System' (count V); (6) violation of sections 484--487 of the Penal Code, Grand Theft, in that on and between the 12th day of March 1973, and the 6th day of June 1973, defendant 'did unlawfully and fraudulently appropriate to a use and purpose not in the due and lawful execution of his trust, property which he had in his possession and under his control by virtue of his trust and did wilfully and unlawfully secrete said property with a fraudulent intent to appropriate it to such a use and purpose, contrary to Penal Code section 504, said property being of a value exceeding two hundred dollars ($200.00)'; it was also found that 'the theft was of public funds' (count VII).

Defendant was found not guilty of a violation of sections 484--487 of the Penal Code as charged in count VI of the indictment.

Defendant's motion for a new trial was denied.

As to counts, I, II and VII, the proceedings were suspended without imposition of sentence and defendant was granted probation for a period of five years on certain terms and conditions, one of which was that he spend sixty days in the county jail. As to counts III, IV and V, the proceedings were suspended without imposition of sentence, the imposition of sentence as to such counts to be permanently stayed if the judgment was affirmed. The court further ordered and informed defendant that 'he is forever barred from holding a public office in the State of California' and defendant was ordered 'removed forthwith from the Office of Assessor for the County of Orange, State of California.'

Defendant 'appeals his conviction upon Counts I through V and VII of the indictment in this case.' ³

The facts giving rise to defendant's conviction as to the designated counts of the indictment herein are as follows.

In October 1970 Andrew J. Hinshaw, the then Assessor of the County of Orange, proposed to the Orange County Board of Supervisors that that board authorize the sale of the 'Single Family Residence Computer Appraisal System' which had been developed by the Orange County Assessor's Office. Mr. Hinshaw indicated in a letter to the Board of Supervisors that his office had 'computed the cost of physically reproducing the system' at $2,045. The minutes of the Orange County Board of Supervisors dated November 10, 1970, provides in pertinent part as follows: 'On motion . . . duly seconded and unanimously carried, the Assessor is authorized to release the Single Family Computer Appraisal System to any interested party for a fee of $2,045 or individual components thereof, as indicated on the attached schedule, and the revenue derived from such sales is to be placed in the General Fund.'

John Q. Ebert was the assessor for Spartanburg County, South Carolina. Mr Ebert was interested in putting into effect a computerized appraisal system in Spartanburg County. He understood that Orange County had in effect a successful system of computerized appraisals of residential properties for assessment purposes. He wanted to emulate or duplicate the Orange County system for Spartanburg County.

In early 1973 Mr. Ebert contacted by telephone Andrew J. Hinshaw, the former assessor for the County of Orange, who was at that time in Washington, D.C., as a member of Congress. Mr. Ebert sought to make sure that the Orange County system's success was not due to the particular type of properties which existed in Orange County, but 'was indeed due to the power and capabilities of the system and they would in fact work on our (Spartanburg County's) kinds of properties.' Mr. Ebert wanted to implement a plan, with Mr. Hinshaw's help, to collect a sampling of data relative to properties in Spartanburg County to be 'tested on the Orange County system.' He testified as follows: 'If i was convinced by the results with regard to the ability of the system to handle our kinds of property, then I would proceed with the acquisition and evaluation and usage of the Orange County system. So at the outset what I was after was a testing of would it work on our properties.'

Mr. Ebert was concerned about the 'difference in the nature of the housing' between Orange County and Spartanburg County. Large subdivisions were not common in Spartanburg County. He testified: 'In our part of the country one builder would build one house and another builder would build one next to it and then there would be some vacant lots and it might be ten years before those are built possibly. Some houses would be very large and elaborate, $200,000 kind of houses and other ones would be more moderate, $20,000 houses right next to each other. This mixture of properties was of concern to me.' Mr. Ebert understood 'fully' that computerization of appraisals worked well when properties were very similar because that only involved accunting for small differences in properties.

Mr. Ebert further testified that he and Hinshaw agreed 'on a way to proceed.' First, data was to be collected from a sampling of a cross-section of Spartenburg County properties. Then Mr. Hinshaw and defendant Vallerga would come to Spartanburg and they would accompany Mr. Ebert and his chief appraiser in a review of the various kinds of Spartanburg residential properties, actually visiting the properties to 'confirm' the designation made by the Spartanburg Assessor's Office of the different property 'characteristics.'

Mr. Hinshaw 'suggested or advised' that defendant Vallerga was 'the one most familiar with the details of making things work from the appraiser's standpoint in putting into the computerization' and that Vallerga would be very valuable 'to work with us on making sure that our properties were properly described and defined for input.' Mr. Hinshaw and defendant arrived in Spartanburg in mid-March of 1973. They visited the Spartanburg Assessor's Office and spent many hours visiting the sample Spartanburg properties by car. Mr. Hinshaw and defendant were in Spartanburg for approximately a day and a half.

At the airport, when Mr. Hinshaw and defendant were departing, Mr. Ebert had a discussion with Mr. Hinshaw 'relative to fees to be charged either by Mr. Hinshaw or Mr. Vallerga.' Mr. Ebert testified that his discussion 'was with Mr. Hinshaw essentially,' but that Mr. Vallerga was present in the group when the discussion was had with respect to fees. Mr. Ebert testified that he asked Mr. Hinshaw 'how much was he going to charge me for the time that he had just spent.' Mr. Hinshaw quoted a fee of $500 per day. Mr. Ebert stated that Mr. Hinshaw's figure 'seemed a bit high,' and Mr. Hinshaw responded that the figure 'included expenses.' Mr. Ebert asked Mr. Hinshaw 'if he would break down the fee some for time and some for expenses.' He further testified as follows: 'Then there was some discussion about what would be the fee if I did accept the program, the Orange County system, if I did in fact employ it if I found the results to my satisfaction and I agreed to pay Mr. Hinshaw $6,000 with regard to his services if I proceeded with the acquisition of the Orange County program.'

With respect to the sum of $6,000 that was to be paid to Mr. Hinshaw, Mr. Ebert testified that '(t)he six thousand was a figure for services with regard to the acquisition, interpretation or understanding and implementation of the Orange County system in Spartanburg County, assistance to me in making use of what I was going to get in the documentation.' During this conversation Mr. Ebert 'was advised that the documentation for the Orange County system, the materials could be obtained from Orange...