People v. Hutchings CA4/1

California Court of Appeal · D065639 · 2014-11-13 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCD208810
Trial judge: Charles R. Gill
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Judith L. Haller (author), Richard D. Huffman, Sr., Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:29Z · confidence low

The trial court adopted the People's recommendation for restitution in the amount of $734,377 and denied Hutchings's motion to vacate the TRO and sentence. The Court of Appeal affirmed the order, finding that Hutchings forfeited his right to appeal the restitution amount by failing to object at the hearing and that his other claims were precluded or unsupported by the record.

Ruling reviewed	Standard	The court	The model
Order adopting the People's recommendation for restitution in the amount of $734,377 “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.)”	unclear	error	agree with court agree with court
Denial of motion to vacate the TRO and sentence “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].)”	unclear	error	agree with court agree with court

Authorities

relied: People v. Garcia (2010) 185 Cal.App.4th 1203 — A defendant forfeits the right to object to the amount of restitution on appeal if they fail to object at the restitution hearing.
relied: In re Harris (1993) 5 Cal.4th 813 — A defendant generally cannot raise an issue in a postappeal habeas corpus petition if the issue could have been, but was not, raised in the appeal.
relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel must review the record for error when presenting no argument for reversal.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel must file a brief identifying any possible, though not arguable, issues for the court's independent review.

The appellate opinion: sound — The opinion is sound because it correctly applies the forfeiture doctrine to the restitution claim and the preclusion doctrine to the pre-trial TRO claims, supported by the cited authorities. The court's independent review under Wende/Anders found no reasonably arguable issues, which is a defensible procedural outcome given the record described.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After Hutchings's 2010 convictions for a foreclosure rescue scheme were affirmed, the trial court in January 2014 set victim restitution at $734,377 (retaining jurisdiction to adjust it), accepted his renewed Faretta/Lopez waiver for the restitution hearing, and denied his motion to vacate the section 186.11 TRO and his sentence. On appeal, appointed counsel filed a Wende brief, Hutchings filed a supplemental pro. per. brief, and the Court of Appeal affirmed, holding his pre-judgment TRO and notice complaints were barred, his challenge to the restitution amount was forfeited for lack of objection, and his remaining claims lacked record support.

Ruling reviewed	Standard	The court	The model
Adoption of the People's proposed restitution amount of $734,377 with jurisdiction retained to modify “Because Hutchings did not object at the restitution hearing to the amount of restitution, he has forfeited his right to object in this appeal.”	abuse of discretion	correct	agree with court The record as recited shows the court gave Hutchings a continuance to review discovery, expressly offered to set an evidentiary hearing on the spot, and he did not respond or object to the amount. Forfeiture for failure to object to a restitution award is well established (People v. Garcia (2010) 185 Cal.App.4th 1203), and the court also retained jurisdiction, so Hutchings retains a remedy below. Counsel's Anders issue of abuse of discretion in the calculation was not reached on the merits because of forfeiture.
Denial of Hutchings's December 2013 motion to vacate the section 186.11 TRO and his sentence “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.”	de novo	correct	agree with court The judgment was final after the 2011 affirmance, and the TRO, notice-by-publication, and asset-freeze/right-to-counsel issues all arose before trial and sentence and were (or could have been) raised on the first appeal or in the 2012 habeas petition that this court denied. The result is correct, though the court supported it with In re Harris, a habeas-procedural rule, cited by analogy rather than the direct rule that an appeal from a post-judgment order cannot relitigate the underlying final judgment.
Acceptance of Hutchings's renewed Faretta/Lopez waiver for the restitution hearing “The ensuing Faretta/Lopez advisement, inquiry and waiver were valid.”	unclear	correct	agree with court The opinion states that the court gave a Faretta/Lopez advisement, conducted an inquiry, and took a waiver; Hutchings had already represented himself at trial and sentencing after this court granted mandate compelling self-representation. Nothing in the opinion suggests the waiver was not knowing and voluntary, and the appellate court's conclusory statement is consistent with the record described, though the opinion does not detail the colloquy.
Rejection of Hutchings's claims of lack of notice, denial of discovery, and prosecutorial misstatements at the restitution hearing “He was present throughout the restitution hearing and the record does not show any lack of notice.”	substantial evidence	correct	agree with court The opinion recites that Hutchings attended all three hearing dates, the court ordered printouts of digital discovery produced to him, continued the matter so he could review them, and had the clerk copy a document he claimed not to have received. The Civil Discovery Act does not apply to section 186.11(d)(2) proceedings by the statute's own terms. On this record the due process and discovery complaints lack support.
Rejection of the contention that victims' restitution claims were untimely under section 186.11, subdivision (d)(6) “Furthermore, Hutchings is incorrect in complaining that the claims for restitution were untimely.”	de novo	correct	agree with court Section 186.11(d)(6) allows a claim within 30 days of first publication or within 30 days after receipt of actual notice, so a 2012 letter to a potential victim does not itself show untimeliness, and the court noted the letter's context could not be determined. The statutory reading is straightforward; the issue was in any event also barred as an attack on pre-judgment TRO proceedings.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Where appointed counsel finds no arguable issues, the appellate court independently reviews the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may file a brief identifying possible issues for the court's independent review.
relied: Faretta v. California (1975) 422 U.S. 806 — A criminal defendant has a constitutional right to self-representation upon a knowing, intelligent, and voluntary waiver of counsel.
relied: People v. Lopez (1977) 71 Cal.App.3d 568 — Suggested advisements and inquiry a trial court should make before accepting a defendant's waiver of counsel.
relied: In re Harris (1993) 5 Cal.4th 813 — A defendant generally may not raise in a postappeal habeas petition an issue that could have been, but was not, raised on appeal; cited by analogy to bar relitigation of pre-judgment issues in this post-judgment appeal.
relied: People v. Garcia (2010) 185 Cal.App.4th 1203 — Failure to object to the amount of a restitution award in the trial court forfeits the challenge on appeal.

The appellate opinion: sound with gaps — The court reached a defensible result: the TRO and notice claims attacked a final judgment and prior habeas ruling, the restitution amount challenge was forfeited after the court offered an evidentiary hearing that Hutchings declined, and the remaining claims lacked record support. Gaps remain in that the court relied on a habeas-procedure rule (In re Harris) by analogy rather than the direct-appeal rule barring relitigation of a final judgment through an appeal from a post-judgment order, did not address whether full Wende review is required in a post-judgment appeal, and gave only a conclusory treatment of the Faretta/Lopez colloquy.

How this analysis was made · dispute it

Opinion

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. 2 (§ 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 3 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.

4 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 5 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.

6 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.)

7 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.

8 DISPOSITION

The order is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Cites, in this corpus

People v. Garcia E048416 · 2010-06-23
In Re Harris S022130 · 1993-07-29
People v. Wende Crim. 20851 · 1979-10-12
People v. Lopez Crim. 9186 · 1977-07-08