People v. Hail CA1/2 ( 2021 )

Filed 2/25/21 P. v. Hail CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v. A158722
WILLIAM EDWARD HAIL III, (Sonoma County Super.
Defendant and Appellant. Ct. No. SCR695503)
Defendant William Edward Hail III’s appellate counsel requests that
this court independently review the record under People v. Wende (1979)
25 Cal.3d 436 (Wende) regarding the trial court’s post-trial order that Hail
pay victim restitution totaling $512,540. Hail’s counsel informed him of his
right to file a supplemental brief and he has not done so. Upon our
independent review of the record under Wende, we conclude there are no
arguable appellate issues requiring further briefing and affirm.
BACKGROUND
We affirmed Hail’s judgment of conviction in an unpublished opinion,
People v. Hail, filed on February 25, 2021 (A156418), which we are issuing at
the same time as this opinion.1 There, we discussed the background facts
regarding the charges against Hail, the evidence presented at trial of
We may cite to A156418 “to explain the factual background of the
1
[current] case.” (K.G. v. Meredith (2012) 204 Cal.App.4th 164, 172, fn. 9.)
1
regarding his criminal conduct (as well as that of co-defendant Douglas
Jensen, who was convicted of certain charges as part of a negotiated
disposition of his case, and who is not a party to this appeal) and his
convictions after a jury trial. We shall not repeat that discussion other than
to note that in December 2018 Hail was convicted of six counts of financial
crimes against Jane Doe and John Doe (collectively, the Does), two elderly
residents of Petaluma, California, and an aggravated white collar
enhancement was found to be true, after evidence was presented that the
Does had paid Hail over $700,000 to perform work on their residences under
certain contracts, but which he either did not perform or did not complete.
(People v. Hail (Feb. 25, 2021, A156418) at pp. 2-3.) Hail was sentenced to six
years in prison. (Id. at p. 4.)
After sentencing, the People filed an extensive analysis of the economic
losses of the two elderly victims of Hail’s criminal conduct, Jane Doe and
John Doe (who had passed away before trial), and sought an order that Hail
pay restitution in the amounts of $281,367.98 to Jane Doe and $403,735.98 to
the estate of John Doe. These amounts were comprised of the Does’
overpayments to Hail, based on evidence presented at trial, and the
corrective costs to complete the work at their homes that Hail had not
completed. The People stated that, for Jane Doe, these amounts were
$260,495.84 and $20,872.14 respectively, and for John Doe, these amounts
were $296,298.98 and $107,437 respectively.
In October 2019, the court held a contested restitution hearing after
repeatedly resetting the date of the hearing for much of 2019. The
prosecution and co-defendant Jensen, through his counsel, informed the court
that they had agreed to a stipulation under which Jensen would be jointly
2
and severally liable for a total of $512,450.83 in restitution to the Does.2 The
prosecutor explained that Jensen’s counsel had conducted an analysis and
determined that Jane Doe’s contract-based economic losses were $122,757.94
and her overpayment to Hail was $79,369.89, a total of $202,127.83. John
Doe’s contract-based economic losses were $225,683 and his overpayments
were $84,730, a total of $310,413. The prosecutor stated she had agreed with
this analysis in order to reach an agreement, which she considered to be “a
reasonable solution to the restitution issue that’s based on the facts and the
law,” and could argue for more.
The court said it had reviewed Jensen’s counsel’s analysis, found it
comprehensive, and considered the parties’ agreement to be a reasonable
compromise in light of the strengths and weaknesses of the case for
restitution and in order to bring closure. The court agreed with Jensen’s
counsel that the Does could pursue economic damages in a civil lawsuit.
Hail’s counsel told the court that he believed Jensen’s counsel’s
analysis under the restitution laws was “appropriate,” but moved for a
continuance for Hail’s expert to study whether the corrective costs in both the
prosecution’s and Jensen’s counsel’s analyses were appropriate. He said he
had subpoenaed seven contractors that did corrective work and had an expert
reviewing certain costs, but that he had released the contractors from
appearing at the hearing because he understood from the public defender’s
office that such hearings had been cancelled (for reasons not stated in the
record).
The prosecutor opposed Hail’s motion for a continuance. She said it
had been known for a couple of days that the court would be open to conduct
2 This total amount of restitution appears to be a slight misstatement,
as the amounts of restitution proposed to be paid to the Does, and later
ordered by the court, add up to $512,540.
3
the scheduled hearing, that the hearing was supposed to have occurred for
the past year, and that the amount of Hail’s actual theft exceeded the
corrective costs “by hundreds of thousands of dollars.”
The court said the restitution amounts agreed to by the prosecution
and Jensen were “more than reasonable for resolution,” “the exposure [of
Hail] is much higher,” and the parties had had “many, many months to
prepare, subpoena witnesses, prepare their own side of the case. Waiting
until the last minute to do anything with the contractors is a little bit
dilatory.” The court was determined not to “waste everybody’s time” and
“come back here and arrive at the exact same numbers,” and said that if Hail
did not stipulate to the amounts agreed to by the prosecution and Jensen, “all
bets are off and the Court will go through a full analysis. And right now, . . .
my analysis shows numbers quite a bit higher than that and [I] may consider
making adjustments between the defendants as to exposure, liability.”
Hail’s counsel responded that he had only received the corrective costs
a few weeks before the hearing, submitted on his motion for a continuance
and indicated that he did not have any witnesses to call.
The court then denied Hail’s motion for a continuance and invited
Hail’s counsel to argue the merits of the restitution amounts. Counsel
declined to argue, and indicated that Hail would object to whatever
restitution amounts the court ordered.
The court then said that, in its analysis, Hail was liable for a total
restitution amount that was close to or over $700,000. The court said that,
even without hearing expert testimony, it thought Hail’s exposure was “a lot
more” than the restitution amounts agreed to by the prosecution and Jensen.
The court ruled that Jensen and Hail were jointly and severally liable for
restitution to Jane Doe in the amount of $202,127 and to the estate of John
4
Doe in the amount of $310,413, and that this was a just and reasonable
compromise and fair amounts to the victims given the defendants’ exposure.
Hail filed a timely notice of appeal from the court’s ruling.
DISCUSSION
Crime victims are entitled to restitution for losses suffered as a result
of a criminal act. (Cal. Const., art. I, § 28, subd. (b)(13).) “[V]ictim restitution
is mandated by both the Constitution and [Penal Code] section 1202.4.”
(People v. Rowland (1997) 51 Cal.App.4th 1745, 1751.) As summarized by
one of many appellate courts, “[i]n every case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court shall require
that the defendant make restitution to the victim or victims. (§ 1202.4,
subd. (f).) The restitution order must be sufficient to fully reimburse the
victim or victims for every determined economic loss incurred as a result of
the defendant’s criminal conduct . . . (§ 1202.4, subd. (f)(3)(H)).” (People v.
Williams (2010) 184 Cal.App.4th 142, 146.)
“At a victim restitution hearing, a prima facie case for restitution is
made by the People based in part on a victim’s testimony on, or other claim or
statement of, the amount of his or her economic loss. [Citations.] ‘Once the
victim has [i.e., the People have] made a prima facie showing of his or her
loss, the burden shifts to the defendant to demonstrate that the amount of
the loss is other than that claimed by the victim.’ ” (People v. Millard (2009)
175 Cal.App.4th 7, 26.)
“ ‘The standard of review of a restitution order is abuse of discretion.
“A victim’s restitution right is to be broadly and liberally construed.”
[Citation.] “ ‘When there is a factual and rational basis for the amount of
restitution ordered by the trial court, no abuse of discretion will be found by
the reviewing court.’ ” [Citations.]’ [Citation.] However, a restitution order
5
‘resting upon a “ ‘demonstrable error of law’ ” constitutes an abuse of the
court’s discretion. [Citations.]’ [Citation.] ‘In reviewing the sufficiency of the
evidence [to support a factual finding], the “ ‘power of the appellate court
begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the trial court’s
findings.” [Citations.] Further, the standard of proof at a restitution hearing
is by a preponderance of the evidence, not proof beyond a reasonable doubt.
[Citation.] “If the circumstances reasonably justify the [trial court’s]
findings,” the judgment may not be overturned when the circumstances
might also reasonably support a contrary finding. [Citation.] We do not
reweigh or reinterpret the evidence; rather, we determine whether there is
sufficient evidence to support the inference drawn by the trier of fact.
[Citations.]’ ” (People v. Millard, supra, 175 Cal.App.4th at p. 26.) Where the
legal basis for a restitution award is under challenge, we conduct de novo or
independent review. (People v. Brunette (2011) 194 Cal.App.4th 268, 277.)
We have conducted an independent review of the record under Wende
regarding the court’s restitution orders, including of the People’s extensive
analysis of the victims’ economic losses. We conclude there are no arguable
appellate issues requiring further briefing and affirm.
DISPOSITION
The order appealed from is affirmed.
6
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
People v. Hail (A158722)
7