People v. Marugg
| Decision Date | 23 September 2021 |
| Docket Number | D076618 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KIM MARUGG, Defendant and Appellant. |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No SCD160771, Laura H. Parsky, Judge. Affirmed.
Aurora E. Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Arlene A. Sevidal Deputy Attorneys General, for Plaintiff and Respondent.
In 2003, appellant Kim Marugg (Appellant) pled guilty to one count of conspiracy to misrepresent a fact in violation of Penal Code section 182, subdivision (a)(1).[1] She appeals from an order of the trial court denying (1) her motion to vacate this conviction based on what she contended was newly discovered evidence of actual innocence (§ 1473.7, subd. (a)(2) (§ 1473.7(a)(2))[2]); and (2) her motion for a finding of factual innocence (§ 851.8, subd. (d)[3]).
This is the second time this case is before us. In an August 2018 opinion, this court affirmed the trial court's denial of Appellant's petition for writ of error coram nobis (in which Appellant sought to withdraw her guilty plea and to dismiss the charges), reversed the denial of Appellant's motion to vacate the conviction under section 1473.7(a)(2), and remanded with directions for the trial court to hold a hearing on Appellant's motion and to specify the basis of its ruling. (People v. Marugg (Aug. 27, 2018, D072065) [nonpub. opn.] (Marugg I).[4])
In the present appeal, Appellant suggests that, at the hearing directed by this court in Marugg I, supra, D072065, the trial court “prioritized form over substance and efficiency over truth.” More specifically, Appellant argues the court erred in issuing two sets of rulings.
First, Appellant focuses on what she describes as two “blanket, exclusionary rulings” which, according to Appellant, barred two entire categories of evidence. With regard to actual innocence, Appellant argues that she was prejudiced by the court's refusal to allow evidence of her trial attorney's ineffectiveness at and after the time of the 2003 conviction. With regard to whether the evidence was newly discovered, Appellant argues that she was prejudiced by the court's refusal to allow any evidence that was in existence at the time of her plea (Dec. 2003), including evidence derived therefrom. As we explain, based on the record before the court and the offers of proof by Appellant, the court did not abuse its discretion (or otherwise err) in the evidentiary rulings challenged on appeal.
Second, Appellant directs our attention to rulings of the court after commencement of the proceedings in response to Appellant's multiple requests to substitute counsel and to continue the proceedings. She argues that, in denying her initial request to substitute counsel-on the condition that the hearing be continued for new counsel to prepare-and her multiple requests for a continuance during the hearing, the court unlawfully infringed on her right to counsel of choice and deprived her of the right to effective assistance of counsel in the hearing that resulted in the order on appeal. Appellant made these requests after more than eight months of proceedings following remand and after the first day of the hearing in which the court had issued several significant substantive rulings adverse to Appellant. As we explain, given the timing of these requests and the history of these proceedings, the court did not abuse its discretion in making the rulings Appellant challenges on appeal.
Accordingly, we affirm the order denying Appellant's motions to vacate her conviction under section 1473.7(a)(2), and for a finding of factual innocence under section 851.8, subdivision (d) (the Order).
In June 2002, at a time when Appellant and Jose Luis Alvarez were married, they and several others were charged by indictment with 24 counts: 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 tax 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)). These charges all related to J. Alvarez Construction, which Appellant testified was “the community property business” that she and Alvarez “built” during their marriage.[6]
Appellant and Alvarez separated in February 2003.
More than a year and a half after issuance of the indictment, in December 2003, Appellant and Alvarez each pled guilty to count 1-conspiracy to misrepresent a 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 of the insurance (§ 182, subd. (a)(1); Ins. Code, § 11880, subd. (a)).[7] Appellant pled to a misdemeanor, Alvarez pled to a felony, and at the request of the prosecutor the court dismissed the remaining 23 counts against each.
In Marugg I, supra, D072065, we summarized the conspiracy to which Appellant pled as follows:
“Alvarez Construction had employees; as a result, Alvarez Construction owed both wages to its employees and premiums for related workers' compensation insurance; with regard to the majority of Alvarez Construction employees, rather than pay these wages and premiums, in 2000, Alvarez or [Appellant] wrote checks to codefendant 1, who purported to act as a subcontractor responsible for Alvarez's payroll; codefendant 1 would negotiate the checks, obtain cash, and pay these Alvarez Construction employees in cash; by not including the cash wages paid to its employees through codefendant 1, Alvarez Construction would underreport its true payroll to SCIF, which administered workers' compensation insurance; by underreporting its payroll, Alvarez Construction was underpaying workers' compensation insurance premiums for its employees; and by underpaying insurance premiums, Alvarez Construction's overhead was lower, which allowed Alvarez Construction to be more competitive for bids on jobs, while increasing profits.”
Appellant testified that the factual bases of her plea were contained in the transcript from the grand jury proceedings that resulted in the indictment and in discovery later provided by Respondent.
Immediately following Appellant's December 2003 change of plea, the court sentenced Appellant as follows: 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.”
Three years later, in January 2007, Appellant filed a petition for expungement of the conviction, citing section 1203.4a. Upon the required showing, section 1203.4a allows a defendant to withdraw a guilty plea and the court to dismiss the accusatory pleading. Although the matter was set for hearing, Appellant did not pursue it.
In September 2012, Appellant wrote a letter to the district attorney, asking that the People (Respondent) stipulate to allow her to withdraw her plea. The letter set forth a lengthy factual basis in support of the request and included a copy of the 2002 grand jury transcript. The next month, Respondent declined Appellant's request.
More than 12 years after entry of the judgment against her, in July 2016 Appellant filed a petition for writ of error coram nobis, seeking to withdraw her guilty plea and to dismiss the charges.[8] In support of the petition, Appellant included a statement of facts, a memorandum of points and authorities, and evidence, including a declaration from Appellant and numerous exhibits regarding the underlying facts. She summarized her position as follows: “Due to a series of improper forces beyond [Appellant's] control, she was led to plead guilty to an offense she did not commit.” Appellant further explained that, “due to the complexity of the issues, including an analysis by a forensic accountant, which was not complete until approximately [early 2016], ” she “has only recently become aware of the full extent of the facts showing a deprivation of her rights to due process and effective counsel.”
At the end of 2016, Appellant filed a “supplement” to her petition, by which she moved for two orders: (1) to vacate her conviction pursuant to section 1473.7(a)(2); and (2) to find her factually innocent of the charge pursuant to section 851.8, subdivision (d).[9] (See fns. 2, 3, ante.) In this supplement, Appellant explained that she “began to uncover evidence revealing her innocence in 2011, ” but that “the resulting investigation” was not completed until July 2016 “due to the complexity of the issues.” (Italics added.)
The parties submitted numerous rounds of briefs, declarations and exhibits. After considering the evidence and arguments, the trial court denied both the petition for writ of error coram nobis and the section 1473.7 motion to vacate the conviction. Appellant brought and the trial court denied a motion for reconsideration. Appellant appealed. In Marugg I, supra, D072065, this court affirmed the denial of the petition, [10] reversed the denial of the section 1473.7 motion, and remanded with directions for the court to hold a hearing on Appellant's ...
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