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The People v. Timothy Hogue

January 27, 2011


Super. Ct. No. 07F09825

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Hogue CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Timothy Hogue, Jr., entered a negotiated plea of no contest to one count of engaging in prohibited actions as a foreclosure consultant (Civ. Code, § 2945.4) in exchange for the dismissal of the remaining counts in the complaint. He agreed that the trial court could consider the conduct underlying the dismissed counts in determining restitution. The trial court suspended imposition of judgment, granted probation (with the condition inter alia of a one-year jail term), and set a restitution hearing. At the end of the hearing, the trial court took the matter under submission. After defendant filed his notice of appeal,*fn1 the trial court issued a nine-page order determining that restitution for the two sets of victims was $26,476.38 and $30,000.

On appeal, defendant argues we should reduce restitution to one victim to prevent double recovery and to delete losses that did not have a sufficient nexus with his criminal behavior. He also argues that almost all the losses to the second victims were the result of third-party criminal conduct not properly attributable to him.*fn2 We affirm the judgment.


Defendant does not dispute the factual findings in the trial court's thorough ruling, only the legal conclusions. We therefore draw our facts from this source.


Philip Lincoln was in default on the mortgage on his home. Defendant contacted him, arranging for an appraisal. Based on the appraisal, a bank provided 90 percent of the purchase price for the buyer (Tracy Morrison). Mr. Lincoln was to carry back the remaining 10 percent ($21,000), which was secured with a promissory note from Ms. Morrison. Defendant recorded a $42,000 deed of trust on the property that named him as beneficiary. There was undocumented testimony about collateral promises to Mr. Lincoln during negotiations of receiving $10,000 in proceeds to pay his debts, and about the parties agreeing to a lease-purchase arrangement in which Mr. Lincoln was to remain in his home and make monthly rental payments with an option to buy it back at a later date.

The sale resulted in $23,111.38 of net proceeds in escrow. (The trial court was unable to determine how there were excess funds in the transaction, remarking that it was not "legitimate" or based on actual value.) Defendant asserted his entitlement to these proceeds pursuant to the second deed of trust. He transferred $21,000 to his wife, who in turn transferred $18,000 to a company that a William Henley controlled (which in turn paid $11,600 in "consulting fees" to Ms. Morrison).*fn3 After the sale, Mr. Lincoln became concerned about the transaction. Even though he remained in the home for another year, he did not pay any rent to Ms. Morrison. He was eventually forced to move when Ms. Morrison went into default on her mortgage. He incurred costs for renting a pick-up truck to move, damages to some of his furniture in the move, and renting a storage unit from August 2007 through the date of the hearing for his excess belongings.

The trial court awarded Mr. Lincoln restitution in the amount of funds that defendant diverted from escrow. The court did not award him the amount of the unpaid promissory note from Ms. Morrison because it was not substantiated that the actual value of the home exceeded the net escrow proceeds by that additional amount. Finally, although the court conceded there was a "more remote" nexus with defendant's conduct, it awarded the costs of the moving truck, the damage to the furniture, and the cost of the rental unit up to November 2009. It concluded that the scheme in which defendant took part had put Mr. Lincoln in straitened financial circumstances by diverting the proceeds of the sale (leading to the renting of inadequate moving equipment) and his move was a result of a co-defendant's failure to keep the mortgage current. The order did not expressly note that defendant was jointly and severally liable with anyone else for this sum.


The Luceros were in default on the mortgage for their home. Defendant contacted them, and introduced them to William Henley. Kim Roth agreed to buy the home. Defendant's company provided a mortgage for 90 percent of the purchase price, and the Luceros agreed to carry back the remaining 10 percent ($26,500), secured with a promissory note and deed of trust from Ms. Roth. (Unlike the other buyer, Ms. Roth honored the promissory note eventually.) The Luceros also entered into a lease-purchase agreement with their buyer. While there was testimony that defendant was involved in the execution of the agreement, he denied any participation and a copy of the agreement was not provided at the hearing. Mr. Henley filed a deed of trust for $35,750 (apparently naming himself as the beneficiary). The Luceros received slightly more than $10,000 in proceeds from escrow. Mr. Henley demanded and received $30,000 in additional excess proceeds from escrow. (Again, the trial court could not find any explanation for the source of the excess proceeds.) From this sum, Henley paid $2,234 to defendant, about half to Ms. Roth, and retained the rest. The probation report ...

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