People v. Hutchings CA4/1 ( 2014 )

Filed 11/13/14 P. v. Hutchings CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065639
Plaintiff and Respondent,
v. (Super. Ct. No. SCD208810)
WILLIAM JEFFREY HUTCHINGS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles R.
Gill, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, and William Jeffrey
Hutchings, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Beginning in 2006, William Jeffrey Hutchings and other defendants participated in
a foreclosure rescue scam. Initially, in 2008, Hutchings was charged with one count of
conspiracy to commit grand theft (Pen. Code,1 §§ 182, subd. (a)(1), 487, subd. (a)), 50
counts of grand theft (§ 487, subd. (a)) and 50 counts of deceitful practices by a
foreclosure consultant (Civ. Code, § 2945.1, 2945.4), with special allegations that the
charges involved a taking in excess of $500,000 (§ 186.11, subd. (a)(2)).2 Pursuant to
section 186.11, subdivision (d)(2), and over Hutchings's objection, the People
successfully petitioned for a temporary restraining order (TRO) to freeze bank accounts
controlled by Hutchings.3
At the outset of the case, Hutchings was represented by counsel. In 2010, during
trial, Hutchings asked to represent himself. The trial court denied the request. Hutchings
filed a petition for writ of mandate challenging the denial. This court granted the petition
and Hutchings represented himself for the rest of the trial.
In 2010, a jury found Hutchings guilty of 160 counts including conspiracy to
commit grand theft; grand theft; deceitful practices by a foreclosure consultant; and rent
skimming. (Civ. Code, §§ 890, 892.) The jury found true special allegations that
Hutchings took funds and property of another with the value exceeding $100,000
(§ 1203.045, subd. (a)), the aggregate losses from all charges exceeded $150,000
1 Further statutory references are to the Penal Code unless otherwise specified.
2 Additional counts and allegations were added later.
3 Section 186.11, subdivision (d)(2) allows the prosecutor to file a petition seeking
injunctive relief to preserve assets. The petition is "pendent to the criminal proceeding,"
"maintained solely to affect the criminal remedies provided for in [section 186.11]" and
not subject to the Civil Discovery Act.
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(§ 12022.6, subd. (a)(2)) and the charges involved a taking in excess of $500,000 within
the meaning of section 186.11, subdivision (a)(2).
Hutchings continued to represent himself at the 2010 sentencing hearing. The
court sentenced him to 46 years in prison: two years for conspiracy; 63 consecutive
eight-month terms for grand theft; and two years for the section 186.11, subdivision
(a)(2) enhancement. The court stayed or ordered concurrent the remaining terms and
dismissed the remaining enhancements in the interest of justice. The court ordered
restitution, for which Hutchings and other defendants were to be jointly and severally
liable, and reserved jurisdiction to set the amount of restitution. Hutchings appealed,
raising a sole issue of instructional error. In 2011, this court affirmed the judgment.
In December 2012, Hutchings filed a petition for writ of habeas corpus. He
contended, inter alia, that the trial court erred in denying his motion for a partial release
of the assets frozen by the TRO, which effectively denied him the right to counsel of his
choice. In February 2013, this court denied the petition.
The hearing to set the amount of restitution took place in November and
December 2013 and January 2014. In November 2013, Hutchings asked to continue his
self-representation. Following a Faretta/Lopez advisement, inquiry and waiver, the court
granted the request. Hutchings claimed that the deputy district attorney had not produced
discovery concerning notice by publication of the petition for TRO. (§ 186.11, subd.
(d)(3).) The court asked the deputy district attorney to make printouts of digital
discovery and give the printouts to Hutchings. The court told Hutchings to inform the
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court, at the next hearing in December, whether he had had sufficient time to review the
printouts.
In December 2013, one week before the hearing, Hutchings filed a motion to
vacate the TRO and sentence. Hutchings argued that the deputy district attorney had
made misstatements to the court designed to impede Hutchings's ability to retain counsel,
resulting in the issuance of the TRO despite noncompliance with the notice requirements
of section 186.11, subdivision (d)(3). Hutchings also argued the claims for restitution
were untimely because documents he received in response to the November discovery
order included letters of notice of restitution dated April 30, 2012 (23 months after trial),
and there was no evidence of notice by publication. The deputy district attorney filed
opposition to Hutchings's motion, arguing the sentence was legally authorized and
therefore not subject to modification and that the notice requirements had been met, as
the court had found in 2009.
At the December 2013 hearing, the court made a tentative ruling to grant
restitution in the amount requested by the deputy district attorney. Recognizing that
Hutchings had not had the opportunity to review all of the documents the deputy district
attorney had provided, the court set a hearing in January 2014 to allow Hutchings the
opportunity to meet his burden of challenging the amount in the tentative ruling. The
court denied Hutchings's motion to vacate the TRO and sentence, noting the judgment
had been affirmed, the court lacked jurisdiction to grant the requested relief and the
motion lacked merit.
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At the January 2014 hearing, Hutchings complained he had not received a chart
summarizing the total amount available for restitution. The court stated that the chart had
been included in the deputy district attorney's notice and proposal for restitution orders,
filed in November 2013. Hutchings insisted that he did not have the chart and claimed he
had not received notice of the January hearing. The court stated that it had previously
ruled on that matter, then told Hutchings that unless he wanted to set a date for an
evidentiary hearing immediately, it would adopt the deputy district attorney's
recommendation and retain jurisdiction, and that in the future Hutchings could set a
hearing if he believed he had evidence to challenge the deputy district attorney's
proposal. The court adopted the People's recommendation for restitution in the amount
of $734,377 and retained jurisdiction to reduce or increase that amount. Hutchings
appeals the January 2014 order. We affirm.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings below. Counsel presents no argument for reversal, but asks this court to
review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436(Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel
mentions as possible but not arguable issues (1) whether Hutchings's Faretta waiver
(Faretta v. California (1975) 422 U.S. 806) for the restitution hearing was knowingly,
voluntarily and intelligently entered upon execution of his Lopez waiver (People v. Lopez
(1977) 71 Cal.App.3d 568) and the court's inquiry; (2) whether there was a violation of
Hutchings's restitution hearing due process rights based on lack of notice or an
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opportunity to be heard; (3) whether the record on appeal demonstrates an objection
sufficient to preserve the right to challenge restitution on appeal; (4) assuming there was
no forfeiture, whether the method of calculation or the amount of restitution constituted
an abuse of discretion; and (5) whether the court properly denied Hutchings's motion to
vacate the TRO and sentence and whether denial of the motion is appealable.
We granted Hutchings permission to file a brief on his own behalf. He has done
so and makes the following contentions: (1) the deputy district attorney willfully failed
to comply with the notice requirements of section 186.11, depriving Hutchings of his
Fifth and Fourteenth Amendment rights; (2) there were no responses to the 2009 notice
by publication of the petition for TRO and no notice sent to known claimants until April
30, 2012, so the court was precluded from ordering the frozen assets distributed as
restitution; (3) the deputy district attorney committed perjury from 2008 to December
2013, and this, coupled with noncompliance with the notice requirements of section
186.11, deprived Hutchings of his Sixth Amendment right to the counsel of his choice;
(4) at the restitution hearing, the deputy district attorney falsely asserted that he had given
restitution discovery to Hutchings before the November 2013 discovery order; and (5) the
court erred by denying Hutchings's December motion to vacate the TRO and sentence.
As noted above, that motion included contentions the deputy district attorney made
misstatements to the court designed to impede Hutchings's ability to retain counsel, and
resulted in the issuance of the TRO which was defective because of noncompliance with
the notice requirements; and assertions the claims for restitution were untimely.
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Hutchings cannot now object to matters that occurred before his trial and sentence.
(See In re Harris (1993) 5 Cal.4th 813, 825, fn. 3 [generally, defendant cannot raise an
issue in a postappeal habeas corpus petition if the issue could have been, but was not,
raised in the appeal].) Thus, he is precluded from making contentions related to the TRO
proceedings, including noncompliance with notice requirements, untimeliness of claims
for restitution, denial of discovery and misstatements by the deputy district attorney. The
contention that perjury by the deputy district attorney was a factor in depriving Hutchings
of his right to counsel also relates to matters before trial and sentence. To the extent this
contention may relate to later proceedings, we note that in February 2013, this court
denied Hutchings's petition for writ of habeas corpus, in which he also asserted a denial
of the right to counsel. Additionally, at the restitution hearing Hutchings asked to
continue his self-representation. The ensuing Faretta/Lopez advisement, inquiry and
waiver were valid.
Nor may Hutchings now challenge the January 2014 restitution order. He was
present throughout the restitution hearing and the record does not show any lack of
notice. The court offered Hutchings ample time to review documents provided by the
deputy district attorney and to object to the proposed restitution amount. Hutchings never
objected to the proposed amount. The court said it would allow Hutchings "to set a date
right now for [an] evidentiary hearing." Hutchings did not respond. Because Hutchings
did not object at the restitution hearing to the amount of restitution, he has forfeited his
right to object in this appeal. (People v. Garcia (2010) 185 Cal.App.4th 1203, 1218.)
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Furthermore, Hutchings is incorrect in complaining that the claims for restitution
were untimely. He has attached to his supplemental brief a copy of what appears to be a
letter dated April 30, 2012, from the Office of the District Attorney to a potential victim,
asking for information about "your losses." It is impossible to tell whether the letter was
in response to a claim by the addressee, or whether the addressee had not yet made a
claim. Moreover, section 186.11, subdivision (d)(6) states: "Any person claiming an
interest in the protected property may, at any time within 30 days from the date of the
first publication of the notice of the petition, or within 30 days after receipt of actual
notice, file with the superior court . . . a verified claim stating the nature and amount of
his or her interest in the property or assets."
To the extent Hutchings complains that he was denied discovery, as noted above,
the Civil Discovery Act does not apply in section 186.11, subdivision (d)(2) proceedings.
In any case, the record does not show any discovery denial. Indeed, at the restitution
hearing, the court granted the deputy district attorney's request that the court clerk copy,
for Hutchings, a document Hutchings claimed not to have received. Finally, the record
does not show any misstatements by the deputy district attorney.
A review of the record pursuant to Wende and Anders, including the possible
issues listed pursuant to Anders, has disclosed no reasonably arguable appellate issues.
Hutchings has been competently represented by appellate counsel.
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DISPOSITION
The order is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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