People v. Marugg
| Decision Date | 27 August 2018 |
| Docket Number | D072065 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KIM MARUGG, Defendant and Appellant. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed in part, reversed in part, and remanded with directions.
Donna L. Harris, 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, Collette C. Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
In 2003, defendants Jose Luis Alvarez (Alvarez), and Kim Marugg (Marugg), at the time known as Kim Alvarez, (together Defendants), each pled guilty to one count of conspiracy to misrepresent a fact in violation of Penal Code section 182, subdivision (a)(1).1 An accused violates section 182, subdivision (a)(1), upon sufficient proof that he or she conspired to commit a crime. The crime here, Insurance Code section 11880, subdivision (a), is the making of a knowingly false or fraudulent statement of any fact material to the determination of the cost of workers' compensation insurance issued or administered by the State Compensation Insurance Fund (SCIF) for the purpose of reducing the cost. Each was sentenced to probation—Marugg in December 2003, and Alvarez in March 2005.
More than 12 years later in 2016, Defendants filed petitions for writs of error coram nobis and section 1473.7 motions to vacate their respective convictions. The trial court denied the requested relief, as well as Defendants' later motions for reconsideration. Defendants each appealed from two separate orders: (1) March 2017 orders denying Defendants' petitions for writs of error coram nobis and section 1473.7 motions to vacate their convictions (coram nobis/1473.7 order); and (2) April 2017 orders denying Defendants' motions for reconsideration of the coram nobis/1473.7 order (reconsideration order).2 Alvarez later abandoned his appeal.
In Marugg's coram nobis/1473.7 order, the trial court ruled that Marugg was not entitled to coram nobis relief on both procedural and substantive grounds and that Marugg was not entitled to section 1473.7 relief. We agree with the trial court's ruling denying coram nobis relief. However, in denying the section 1473.7 motion to vacate the conviction, the trial court erred in failing to hold a hearing and in failing to specify the basis for its ruling—contrary to section 1473.7's express statutory directives. As we explain, the court's failure to provide the basis for its denial of the motion adversely affects our ability to provide appellate review. Accordingly, we will affirm the denial of the coram nobis relief and reverse the denial of the section 1473.7 relief; and we will remand the matter with directions that the court hold a hearing on Marugg's section 1473.7 motion and provide the basis for its conclusion.
The trial court denied the Code of Civil Procedure section 1008 motion for reconsideration on the independent bases that section 1008 does not apply to criminal cases and that Defendants did not follow the proper procedure for seeking the requested relief under section 1473.7. Because Marugg does not present any argument on appeal as to the reconsideration order, we deem her to have abandoned her appeal from that order. Accordingly, we will affirm the reconsideration order.
Because the trial court's orders on appeal are " 'presumed correct,' " we " ' view the record in the light most favorable to the trial court's ruling.' " (People v. Carpenter (1999) 21 Cal.4th 1016, 1046; accord, People v. Crawford (1959) 176 Cal.App.2d 564, 567 [].) " 'The burden is on the appellant in every case affirmatively to show error[.]' " (People v. Homick (2012) 55 Cal.4th 816, 861.)
In June 2002, at a time when Alvarez and Marugg were husband and wife, Defendants were charged by indictment, along with several others who are not parties to this appeal, with 24 counts, as follows: three counts of conspiracy to commit misrepresentation of a fact (§ 182, subd. (a)(1); counts 1, 10, and 16); 15 counts of misrepresentation of a fact (Ins. Code, § 11880, subd. (a); counts 2-9, 11-15, 23-24); one count of conspiracy to fail to file a return in a timely manner (§ 182, subd. (a)(1); count 20); and five counts of failure to file a tax return in a timely manner (Unemp. Ins. Code, § 2117.5; counts 17-19, 21-22). The indictment further alleged that, in the commission of counts 1, 10, 16, and 20, the loss exceeded $150,000 (§ 12022.6, subd. (a)(2)).
More than a year and a half later, in December 2003, Alvarez and Marugg each pled guilty to count 1—conspiracy to misrepresent a fact material to the determination ofthe cost of workers' compensation insurance issued or administered by the SCIF for the purpose of reducing the cost (§ 182, subd. (a)(1); Ins. Code, § 11880, subd. (a)).3 Alvarez and Marugg testified that the factual bases of their respective pleas were contained in the transcript from the grand jury proceedings that resulted in the indictment and in subsequently provided discovery. Alvarez pled guilty to a felony violation,Marugg pled guilty to a misdemeanor violation, and at the request of the prosecutor the court dismissed the remaining 23 counts against each.
Alvarez's written guilty plea form in part discloses Alvarez's understanding of the following negotiated agreement: no jail time, and payment of $314,600 in restitution with an initial payment of $100,000 at the time of sentencing and the balance over the following 33 months. Marugg's written guilty plea form in part discloses Marugg's understanding of the following negotiated agreement: no jail time, [)]"
The court sentenced Marugg immediately, requiring one day in custody, three years' probation, payment of certain fines, and "joint[] and several[] responsibil[ity] for restitution . . . which is to be paid by the defendant's husband, co-defendant Jose Alvarez." A little over one year later, in March 2005, the court sentenced Alvarez,
requiring five years' probation, payment of certain fines, and $214,600 in restitution4—with the fines and restitution payable at a monthly rate of $1,600.
More than 11 years after Alvarez's 2005 judgment and more than 12 years after Marugg's 2003 judgment, in July 2016 Defendants filed a petition for writ of error coram nobis, seeking to withdraw their guilty pleas and to dismiss the charges. In support of the petition, Defendants included a statement of facts, a memorandum of points and authorities, and 14 exhibits,5 including a declaration from Marugg regarding the underlying facts.6 Marugg summarized her position as follows: "Due to a series of improper forces beyond Petitioner's control, she was led to plead guilty to an offense she did not commit." Marugg further explained that, "due to the complexity of the issues, including an analysis by a forensic accountant, which was not complete until approximately five months ago," "Petitioner has only recently become aware of the full extent of the facts showing a deprivation of her rights to due process and effective counsel." Marugg expressly asked for a hearing on the petition.
The trial court found that the petition stated a prima case for relief and ordered the People, through the district attorney, to file an informal response. In December 2016, thePeople filed their informal response, which included a memorandum of points and authorities and 14 exhibits.
Later in December 2016, Defendants filed a "supplement" to their petition. In the supplement, Defendants sought, first, to have their convictions vacated pursuant to section 1473.7, subdivision (a)(2), and, second, to have a finding of factual innocence pursuant to section 851.8, subdivision (d).7 Defendants relied on the same evidence and arguments that they submitted in support of the petition for writ of error coram nobis. In giving notice of the supplement to their petition (which, at times, we will refer to as a motion), Defendants advised that the section 1473.7 motion would be based in part "on such oral and documentary evidence as may be presented at the hearing." In their legal argument, Defendants expressly quoted from those portions of section 1473.7 that requireboth a hearing and a specification of the basis of the court's ruling.8 (§ 1473.7, subds. (d), (e)(2).)
The People filed a "supplemental informal response," which was in opposition to Defendants' section 1473.7 motion.
Defendants filed an "informal reply" that responded to both the People's informal response to the petition and the People's opposition to the section 1473.7 motion. Defendants included a separately identified one-page argument requesting a hearing and quoting from that portion of ...
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