IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TIMOTHY HOGUE, JR., DEFENDANT AND APPELLANT.
Super. Ct. No. 07F09825
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Hogue CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 noted that Ms. Roth reneged on the lease-purchase agreement and sold the home to another person, forcing the Luceros to move. (Ms. Roth was also separately prosecuted.) The People did not produce evidence of consequential losses that the Luceros incurred other than the diverted excess funds.
In awarding the full amount of diverted escrow proceeds as restitution from defendant, the court noted his significant participation with Mr. Henley in the transaction. This made his joint and several liability for the total amount of proceeds proper, even though defendant actually received only a much smaller share of them. (The court cited People v. Campbell (1994) 21 Cal.App.4th 825, 834 [where two or more act in concert, well settled in both civil and criminal law that each is liable for entire result] (Campbell).)
Defendant asserts victim Lincoln received a prohibited double recovery on the intercepted excess escrow proceeds because the order fails to reflect that Ms. Morrison paid Lincoln the $11,600 she received from Mr. Henley in "consulting fees" from the proceeds. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535 [each defendant entitled to credit for any actual restitution payments by another defendant who is jointly and severally liable].) He rests this argument on "[i]nformation from the [deputy] district attorney who handled that case" that Ms. Morrison made this payment on the day before the trial court issued its restitution order.
Matters dehors the appellate record cannot form the basis for an argument (see People v. Szeto (1981) 29 Cal.3d 20, 35 [plur. opn. of Clark, J., cited in Myers v. Phillip Morris Companies, Inc. (2002) 28 Cal.4th 828, 845, fn. 6]) absent some species of admission (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 335(2), p. 386) or stipulation between the parties, neither of which is present here. We therefore cannot consider this claim.
Moreover, a determination of total restitution due to a victim will not change upon the satisfaction of part of it by another defendant. Defendant's actual claim is that he is entitled to a credit for the payment. This is a matter within the purview of the trial court's "installments process" under the conditions of probation. (See Campbell, supra, 21 Cal.App.4th at p. 834 [noting that probation office supervising defendant's monthly restitution payments could make adjustments to take payments by other defendants into account to prevent double compensation].) Defendant should seek relief through that avenue rather than requesting this court to amend the order.
Defendant additionally disputes the finding of a nexus between his offense and the moving costs of victim Lincoln. He points to the passing of a year before the victim's eviction, the failure of the victim to pay rent and Ms. Morrison's related inability to keep her mortgage payments current (which was the cause of the victim's eviction), and the victim's own negligence in renting inadequate moving equipment that caused the damage to his furniture (in some unspecified manner).
In the first place, defendant's crime was not one that involved mere criminal negligence that would allow a trial court to consider any comparative negligence on the victim's part. (People v. Millard (2009) 175 Cal.App.4th 7, 41.)
Moreover, he ignores the finding that the failure to give the victim any proceeds from the sale was the cause of his reduced financial status, which the court found was the reason that the victim rented the inadequate moving truck and had an inability to pay bills. It was also the victim's suspicions about a transaction that defendant had facilitated that made him reluctant to pay rent. Furthermore, Ms. Morrison was part of defendant's criminal cabal, and it was she who allowed the loan to fall into foreclosure. The trial court's resolution of the question of nexus was not unreasonable on these facts. (People v. Giordano (2007) 42 Cal.4th 644, 663.)
As for the Luceros, defendant argues the evidence shows only that he introduced them to Mr. Henley, and accepted a share of the diverted proceeds afterward. He claims the order improperly compels him to pay restitution for the crimes of another.
He cites People v. Leon (2004) 124 Cal.App.4th 620, but the case is factually inapposite. In People v. Leon, supra, the defendant and his co-defendant both forged signatures on stolen checks payable to each of them, but the record did not contain any evidence that the defendant had aided and abetted the co-defendant in the taking or the forgery, therefore it was an abuse of discretion to make him jointly and severally liable for funds that the co-defendant had appropriated to himself. (Id. at p. 622.) In the present case, the facts indicate defendant was an integral part of getting the scheme underway, and then shared in the proceeds. A trial court may properly order a defendant responsible even in part for a loss to pay restitution for the whole amount without making allowance for culpability. (People v. Madrana (1997) 55 Cal.App.4th 1044, 1051; Campbell, supra, 21 Cal.App.4th at p. 834; cf. People v. Zito (1992) 8 Cal.App.4th 736, 746 [restitution when probation denied].)
The judgment is affirmed.