P. v. Alvarez











Filed 10/12/10 P. v. Alvarez VS3/7

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




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THE PEOPLE, Plaintiff and Respondent, v. XAVIER ALVAREZ, Defendant and Appellant.

B220044 (Los Angeles County Super. Ct. No. KA084522)

APPEAL from
a judgment of the Superior Court
of Los Angeles
County,

Mike Camacho, Judge.
Affirmed.

Tracy A.
Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.

Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle
and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and
Respondent.



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Xavier
Alvarez appeals from the judgment entered after a jury convicted him of misappropriation of public funds (Pen.
Code, § 424, subd. (a)(1));[1] count 1), insurance fraud
(§ 550, subd. (b)(3); count 2) and grand
theft of personal property (§ 487, subd. (a); count 3). He was sentenced to an aggregate term of five
years in state prison. Alvarez contends
the trial court erroneously failed to stay his sentence for misappropriation of
public funds under section 654, and abused its discretion in imposing the upper
term for insurance fraud. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The
underlying facts are not in dispute. In
November 2006, Alvarez was elected to serve on the board of the Three Valleys
Municipal Water District (Water District), a public agency. When Alvarez assumed office in January 2007,
he applied for health insurance benefits provided by the Association of
California Water Agencies (ACWA) for himself and Juanita D. Ruiz. In completing the ACWA health insurance
application form, Alvarez wrote that he married Ruiz on January 28, 1995; and he submitted a copy of
their marriage certificate as proof.
Alvarez also told his fellow board members in January 2007 that he was
married.

Alvarez
attended monthly Water District board meetings, where he and fellow board
members reviewed and approved all Water District expenditures. Among those expenditures were payments of
ACWA insurance premiums and reimbursements of out-of-pocket medical costs for
Water District employees, board members and spouses, including Alvarez's
purported spouse, Juanita D. Ruiz. Her
insurance premiums totaling $4,873.76 and her medical costs reimbursements were
approved and paid by the board from April through November 2007.[2]

The Water
District later learned that Alvarez had divorced Juanita D. Ruiz in March
2002. As a result, Ruiz had never been
eligible to receive ACWA insurance benefits.
When confronted by a board member with the fact of his March 2002
divorce, Alvarez replied his divorce had not been recognized by his
church.

Alvarez was
convicted as charged on all counts. At
sentencing, the trial court denied Alvarez probation, selected count 2,
insurance fraud, as the principal term, and imposed the upper term of five
years. Defense counsel argued sentencing
should be stayed on the remaining counts pursuant to section 654. The trial court disagreed with respect to
count 1, misappropriation of public funds, and imposed a concurrent term of
three years. The court stayed sentencing
on count 3, grand theft of personal property under section 654.

DISCUSSION

1. The Trial Court Did Not Err in Failing to Stay the Sentence for
Misappropriation of Public Funds

Section 654 >[3] prohibits punishment for
two offenses arising from the same act or from a series of acts constituting an
indivisible course of conduct. (People
v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48
Cal.3d 321, 335.) â€