Wednesday, October 13, 2010
C.A. Upholds Sentence for Lying to Obtain Benefits
Five-Year Term Held Not Excessive for Former Member of Local Water Board
By KENNETH OFGANG, Staff Writer
The Court of Appeal for this district yesterday affirmed the conviction and five-year prison term imposed on a former water board member for lying in order to obtain insurance benefits for his ex-wife.
Div. Seven, in an unpublished opinion by Justice Laurie Zelon, rejected Xavier Alvarez’s claim that Los Angeles Superior Court Judge Michael Camacho abused his discretion by imposing the upper term for insurance fraud.
Alvarez was elected to the Three Valleys Municipal Water District board in 2006 by south Pomona voters. When he took office in January 2007, he applied to the Association of California Water Agencies for health insurance benefits that the association provides to board members and their spouses.
He wrote on his application that he was married to Juanita D. Ruiz and submitted a copy of a marriage certificate as proof. The water district paid nearly $5,000 in premiums for Ruiz and approved reimbursements for her medical costs through November 2007.
In fact, Alvarez and Ruiz had divorced in 2002. At trial, the prosecution presented testimony from a fellow board member who had learned of the divorce and questioned Alvarez, who said that the divorce was never recognized by his church.
The jury found him guilty of insurance fraud, misappropriation of public funds, and grand theft. At the time of sentencing, Alvarez was still on the water board, but was on federal probation as a result of having been convicted of violating the Stolen Valor Act.
That conviction resulted from his statement, while introducing himself at his first board meeting, that he had served for 29 years in the Marine Corps and held several decorations, including a Medal of Honor for pulling the flag from the embassy in Iran during the hostage crisis in the 1970s. In fact, he had never served in the military.
The Stolen Valor Act conviction was recently overturned by the Ninth U.S. Circuit Court of Appeals, which held that the statute violates the First Amendment. The government recently said it would ask the Supreme Court to review the decision.
Alvarez is believed to be one of only two persons convicted of violating the act.
In the insurance case, Camacho said the upper term was appropriate because the defendant was not going to receive consecutive sentences on the other counts; the scheme began as soon as Alvarez got on the board and continued for several months, involving several votes to approve reimbursements; Alvarez had abused the public trust and did not attempt to rectify the situation until after he was caught, and he had been convicted of other criminal offenses years earlier.
Alvarez was remanded into custody following sentencing in September of last year and resigned from the board shortly thereafter.
Zelon, writing for the Court of Appeal, said the trial judge considered “appropriate and relevant circumstances” in imposing sentence, reasonably determining that the aggravating factors outweighed the mitigating effect of Alvarez’s belated offer to pay restitution and the fact that he was trying to help his ex-wife rather than himself.
The justice rejected the defense argument that the conviction for misappropriation of public funds should not have been treated as an aggravating factor because it was not a separate crime and could not have resulted in a consecutive sentence.
Zelon explained that Alvarez’s criminal conduct in voting for the reimbursements was separate from his earlier misconduct in qualifying his ex-wife as a beneficiary by falsely representing that they were still married, so the judge could have chosen to impose a consecutive sentence and was within his discretion in imposing the upper term on a single count instead.
The case is People v. Alvarez, B220044.
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