Filed 1/27/11 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE, C063637

Plaintiff and Respondent, (Super. Ct. No.

07F09825)
v.

TIMOTHY HOGUE, JR.,

Defendant and Appellant.

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

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notice of appeal,1 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.2 We affirm the judgment.

1 Trial counsel was concerned about filing a timely appeal

from the order granting probation. However, an order that
grants probation conditioned on payment of restitution is not
final for purposes of appeal until the trial court fixes the
amount of restitution; we thus deem defendant to have filed his
premature notice of appeal immediately after the filing of the
restitution order. (People v. Vournazos (1988) 198 Cal.App.3d
948, 953-954.)
2 The Supreme Court has granted review to resolve a split in
authority over whether January 2010 amendments to Penal Code
section 4019 (Stats. 2009, 3d Ex. Sess., ch. 28, § 50) are
retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354, rev.
granted June 9, 2010, S181963.) This court’s miscellaneous
order No. 2010-002, filed March 16, 2010, deems the issue
included in all pending appeals without further briefing.
However, defendant’s two days of actual custody did not qualify
for conduct credits at the time of his sentencing (Stats. 1982,
ch. 1234, § 7, p. 4554 [minimum six-day period of custody to
accrue conduct credits]), nor does it under the January 2010
amendments, which have a minimum custody period of four days.
As he was granted probation and is not a prison inmate,
September 2010 amendments to Penal Code section 2933 do not
apply to him (nor do the amendments to Penal Code section 4019
restoring the six-day minimum, as they are expressly
prospective). (Stats. 2010, ch. 426, §§ 1, 2, 5.)

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 FACTS

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

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paid $11,600 in “consulting fees” to Ms. Morrison).3 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 codefendant’s failure

to keep the mortgage current. The order did not expressly note

3 She pled guilty to one count of misdemeanor grand theft as

a codefendant in this case. Mr. Henley had also been charged in
a separate case, which was apparently dismissed.

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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.

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 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).)

DISCUSSION

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

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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

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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.)

II

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 codefendant 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

codefendant in the taking or the forgery, therefore it was an

abuse of discretion to make him jointly and severally liable for

funds that the codefendant had appropriated to himself. (Id. at

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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].)

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

BUTZ , J.

SCOTLAND , J.*

* Retired Presiding Justice of the Court of Appeal, Third

Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.