Appeals Court Affirms Conviction Of Sale Leaseback Peddler; Objection To Restitution Liability For Entire Proceeds Of Ripoff Falls On Deaf Ears

In Sacramento, California, a recent ruling by a California appeals court affirmed the conviction of Defendant Timothy Hogue, Jr., an equity stripping, sale leaseback peddler on one count of engaging in prohibited actions as a foreclosure consultant (Civ. Code, §2945.4). The conviction was entered pursuant to a negotiated plea agreement of no contest to one count in exchange for the dismissal of the remaining counts in the complaint.

Hogue agreed that the trial court could consider the conduct underlying the dismissed counts in determining restitution. The trial court issued a nine-page order determining that restitution for the two sets of victims was $26,476.38 and $30,000, which the appeals court subsequently affirmed.

Among the notable points was that, in the case involving the $30,000 restitution order, Hogue apparently only acted as a "bird dog," merely introducing the homeowner/victims to another scammer, one William Henley, who allegedly was the one who actually carried out the sale leaseback ripoff of the 2nd set of victims. According to the ruling, Hogue only received $2,234, the balance being kept by Henley and another.

Inasmuch as Hogue claimed to have played only a minor role in the second ripoff and only received $2,234, he objected to being held responsible for the entire $30,000. In finding that Hogue should be left holding the bag on the entire $30,000 restitution order, the California appeals court made this observation ([alterations] in the original; (bold text is my emphasis, not in the original text:

• 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).)(1)

For the ruling, and all of the details of each sale leaseback ripoff, see People v. Hogue, No. C063637 (Cal. App. 3rd Dist., January 27, 2011) (non-published) (when link expires, TRY HERE).

(1) The appeals court then gave this elaboration ("The Luceros" is a reference to one set of victims in this prosecution; bold text is my added emphasis):

• 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 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].)