THE PEOPLE, Plaintiff and Respondent, v. WILLIAM JEFFREY HUTCHINGS, Defendant and Appellant. No. D057451.

Court of Appeals of California, Fourth District, Division One. Filed October 18, 2011. NOT TO BE PUBLISHED IN OFFICIAL REPORTS HUFFMAN, J. A jury convicted William Jeffrey Hutchings of one count of conspiracy to commit grand theft (Pen. Code,[1] 182, subd. (a)(1)); 65 counts of grand theft ( 487, subd. (a)); 41 counts of deceitful practices by a mortgage foreclosure consultant (Civ. Code, 2945.4); and 56 counts of rent skimming (Civ. Code, 890, 892). The jury also found true the 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 the charges exceeded $150,000 ( 12022.6, subd. (a)(2)), and the charges involved a taking in excess of $500,000, through a pattern of fraud and embezzlement ( 186.11, subd. (a)(2)). The court sentenced Hutchings to prison for a term of 46 years, consisting of a two-year base term for the conspiracy conviction, plus 63 consecutive eight-month terms for his grand theft convictions and two years for the section 186.11, subdivision (a)(2) enhancement. The court also stayed or ordered concurrent the remaining terms and dismissed the remaining enhancement in the interest of justice. Hutchings appeals, contending the court violated the Sixth and Fourteenth Amendments of the United States Constitution by inserting the concept of reasonableness into the jury instruction for mistake of fact. We affirm. FACTS Prosecution Beginning in 2006, Hutchings commenced a purported federal land grant program promising to save homeowners facing foreclosure from losing their homes. He promoted the program with the following assertions: (1) the United States agreed to honor the land grants issued by the governments of Spain and Mexico in 1848 in the Treaty of Hidalgo, through which the United States acquired

California as a territory; (2) when California became a state in 1850, it issued patents to the land owners to protect their respective titles in real property under federal and California law; (3) because the land and the structure upon the land were separate entities, a homeowner facing foreclosure could defeat the mortgage by (a) placing the land back under federal control in a "federal land grant program" mimicking the Treaty of Hidalgo and (b) waiting four to seven years, at which time the house would revert to the title holder free and clear of any mortgage when the bank wrote off the loan or the statute of limitations expired. Hutchings and/or his representatives provided manuals and seminar presentations assuring homeowners the land grant was superior to any other forms of title and prohibited the bank from enforcing its loan, trespassing on the property, initiating eviction proceedings, or taking any action to defeat the homeowner's possession of the house permanently affixed to the land. Hutchings and his representatives promised to prepare and file the deeds and other necessary paperwork with the recorder's office to perfect the land grant, once homeowners transferred title to the property to a designee, usually one of Hutchings's companies like Land Services, LLC. Under a contract between a homeowner and Hutchings or one of Hutchings's companies, Hutchings and/or his representatives promised to provide homeowners with paperwork, guarantee legal assistance throughout the process, and forward any paperwork from the mortgagee, including any notices of default, eviction, and sale. Hutchings's program operated in two different ways. Homeowners would be charged a $10,000 one time fee for the service, with the fee for any additional property discounted. In the alternative, delinquent homeowners paid one of Hutchings's companies or a designee the market lease rate for the particular property in a purported fee and leaseback arrangement. Under the purported leaseback arrangement, homeowners were told they retained an equity share in the property, ranging from 10 to 50 percent, and had an option to purchase the balance once the land program was completed. The resulting documentation, however, showed the homeowner ceded all interest in the property to one of

Hutchings's companies. Once eviction proceedings commenced, Hutchings did not provide any legal assistance to the homeowners and sometimes advised the homeowners to simply ignore the foreclosure proceedings. Moreover, homeowners' further attempts to communicate with Hutchings and/or his representatives failed. Michael Dullea, an expert witness for the People, explained Hutchings made the following false representations in a seminar promoting his land grant program. The federal government owns the land in California (including the homeowners' properties) through its right of eminent domain. The federal government owns the land in California (including the homeowners' properties) because it was taken in the war with Mexico. A mortgage only provides ownership of the house, not the land. Once Land Services, LLC gets the grant deed, it starts the process of setting up a federal land grant. People have been putting property in federal land grants for 200 years. Because the federal government owns the land, neither the banks (mortgagees) nor the homeowners (mortgagors) own the land. The bank does not really own the home it acquires by virtue of a trustee's deed upon sale. The mortgagor (borrower) can end the mortgage by giving away the deed of trust. The mortgage disappears four years after the deed of trust is given away. Giving away the trust deed before the foreclosure sale stops the foreclosure sale and the enforcement of the lien. Banks will try to prove Hutchings's leaseback and purchase is a sham if the full market rent has not been paid. A house subject to foreclosure cannot be sold because of the land grant. The postforeclosure sale eviction may only be temporary. Once the bank writes off the mortgage, Hutchings's companies transfer the property out of the land grant and terminate the agreement with the homeowner. Neither Hutchings nor his representatives ever told homeowners entering the program about the foreclosures the program had failed to avert. Further, none of the documents provided by Hutchings's program and signed by the victims thwarted foreclosure or conveyed title in the manner represented by Hutchings or his associates, and none of the victims retained possession of their homes or avoided foreclosure by virtue of Hutchings's

program. In all but three instances involving partial refunds, Hutchings and his representatives broke their promise that any and all monies paid for the land grant program would be refunded if the program did not work. Forensic reconstruction of bank records from January 2007 through June 2008 showed approximately $2 million passed through bank accounts controlled by Hutchings, the majority of the money coming from individuals and money orders. Of that amount, $275,000 was directly traceable from 64 individuals. Disbursements from the accounts showed a total of $411,000 transferred to Canadian banks. Only one check was found for attorney fees, in the amount of $5,000. Over $50,000 was traced to a mortgage company, the monies representing accelerated payments on the mortgage on Hutchings's primary residence, the title to which was held in Hutchings's wife's name. The title history on the property revealed it was not in danger of default, and it was not placed in Hutchings's program. Search warrants executed at Hutchings's office and home yielded a number of files, including a compensation agreement, a copy of the Civil Code section on rent skimming, and a Bureau of Land Management declaration that land patent declarations have no legal effect and cannot thwart foreclosure. Defense Testifying on his own behalf, Hutchings claimed, based upon the law and his research, the program he offered was valid, he had no intent to defraud, and he did not violate the foreclosure consultant law or any other law. Other defense witnesses testified to Hutchings's good character. DISCUSSION Hutchings asserts the trial court erred when it inserted the concept of reasonableness into jury instruction CALCRIM No. 3406 regarding mistake of fact. Hutchings contends the mistake of fact does not have to be reasonable if it negates the specific intent of either grand theft by false pretense or conspiracy to commit grand theft by false pretense. (See People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 3.) Therefore, Hutchings insists the given jury instruction violated his Sixth and Fourteenth Amendment rights to have the jury consider his primary defense. Hutchings, however, does not challenge that the People

proved the other elements of grand theft or conspiracy. Nor does he challenge his convictions for deceitful practices by a mortgage foreclosure consultant or rent skimming. Hutchings's appeal is focused exclusively on his alleged mistake of fact negating the specific intent for grand theft and conspiracy and the improper CALCRIM No. 3406 instruction. We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) In determining whether a defendant's mistaken belief disproves criminal intent, the courts have drawn a distinction between mistakes of fact and mistakes of law. (People v. Snyder (1982) 32 Cal.3d 590, 592-593.) While a mistake of fact can be a defense, a mistake of law usually is not. Ignorance of the law is no excuse. (See People v. Cole (2007) 156 Cal.App.4th 452, 483 (Cole).) "[I]n the absence of specific language to the contrary, ignorance of a law is not a defense to a charge of its violation." (Hale v. Morgan (1978) 22 Cal.3d 388, 396.) The distinction between mistakes of fact and mistakes of law is an "often difficult distinction." (People v. Young (2001) 92 Cal.App.4th 229, 233.) However, cases considering a mistaken belief as to legal rights or status have held it to be one of law, not fact. (See People v. Stewart (1976) 16 Cal.3d 133, 140; People v. Urziceanu (2005) 132 Cal.App.4th 747, 779; People v. Flora (1991) 228 Cal.App.3d 662, 669-670; People v. Vineberg (1981)125 Cal.App.3d 127, 137.) Here, Hutchings claims he mistakenly believed land grants were a valid means of protecting title to real property in California. He thus was mistaken about legal rights and his mistake is one of law. Although mistake of law can be a valid defense when the crime requires specific intent if the mistake of law negates the intent or other mental state that is an element of the crime (Cole, supra, 156 Cal.App.4th at p. 483), we are not convinced Hutchings's mistake is more than simple ignorance of the law. Hutchings's mistake centers on his belief that land grants are a valid way to protect title to real property. Specifically, Hutchings testified, "I had to figure out a what I believed was a way to stop the attack on title. [] The whole idea, the whole program, was to put the title and I put the title into an asset protection . . . vehicle excuse me, called a federal land grant." Thus, Hutchings's mistake was his belief that his

program was legal. Indeed, even after being charged with 65 counts of grand theft by false pretenses based on his program, Hutchings maintained at trial his program was legal and would work, if given enough time. On crossexamination, Hutchings reiterated his belief, based upon his research of the law, he did not violate the law. In other words, Hutchings's mistake is his belief that his land grant program does not violate the law. As such, Hutchings's position is no different than a defendant who claims he was not aware what he did was illegal. This is textbook ignorance of the law and not a recognized defense in California. (See People v. Meneses (2008) 165 Cal.App.4th 1648, 1663 ["Defendant's claim that he `did not think he did anything wrong' does not provide a cognizable defense to many of the crimes of which he stands convicted."]) Therefore, we conclude it was not reversible error for the trial court to give the modified CALCRIM No. 3406 instruction. No mistake of fact or mistake of law instruction was needed. Further, even if we were to assume Hutchings's mistake goes beyond mere ignorance of the law and could possibly negate specific intent, Hutchings's mistake would not negate the specific intent of either grand theft by false pretenses or conspiracy to commit grand theft in this matter.[2] "Grand theft by false pretenses `consists of three elements: (1) the making of a false pretense or representation by the defendant, (2) the intent to defraud the owner of his property, and (3) actual reliance by the owner upon the false pretense in parting with his property.' [Citation.]" (People v. Jackson (1987) 193 Cal.App.3d 393, 401.) Here, Hutchings insists he believed a land grant was valid. Thus, if the only false representation made by Hutchings that induced the victims into his program was that land grants were valid, Hutchings's argument might be persuasive. However, this is not the case. The evidence against Hutchings was overwhelming. The People offered the testimony of over 60 victims who were duped by Hutchings's scheme. The misrepresentations included: (1) Hutchings's program was a federal government program; (2) Hutchings's program worked in the past; (3) Hutchings's program worked in other states like Oregon and Florida; (4) Hutchings wanted to see how

the program worked before he sent refunds to foreclosed and evicted homeowners who demanded refunds; and (5) Hutchings and his ex-wife were on the program. Hutchings's mistaken belief that land grants were valid has no impact on these misrepresentations.[3] Further, Hutchings's argument ignores that a false pretense can be established if a defendant does one or more of the following: (a) gives information he knows is false; (b) makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth; (c) fails to give information when he has an obligation to do so; or (d) makes a promise not intending to do what he promises. (CALCRIM No. 1804.) The People also proved Hutchings's guilt of grand theft and conspiracy by providing evidence of several material false promises made by Hutchings. For example, the People proved Hutchings and his representatives falsely promised they would handle the default and foreclosure notifications and all the other legal mail from the mortgagee financial institutions once the homeowners sent these documents to Hutchings. The People also proved Hutchings falsely promised those who signed the land grant agreement would have "unlimited access to [the] consultant about the land grant." There also was evidence Hutchings and his representatives falsely promised they would represent or assist homeowners in court. In addition, Hutchings falsely promised the foreclosure and eviction judgments would be appealed and Hutchings retained lawyers who would make his program work and resolve the judgments against the homeowners. Finally, Hutchings falsely promised the homeowners' money would be refunded to them if the program did not work. In summary, the evidence against Hutchings was abundant. Hutchings's alleged mistaken belief would not have formulated a defense to the charge of grand theft by false pretense or conspiracy to commit grand theft and the jury need not have been so instructed. As such, even if the trial court erred in giving the modified CALCRIM No. 3406 instruction or by failing to sua sponte give an instruction for mistake of law, the error would be harmless. DISPOSITION The judgment is affirmed.

McCONNELL, P. J. and HALLER, J., concurs. [1] Statutory references are to the Penal Code unless otherwise specified. [2] Our analysis on this point is no different if we determined Hutchings's mistake is one of fact. Such a mistake is only a defense if it negates the specific intent of the charged crime. (See People v. Navarro, supra, 99 Cal.App.3d Supp. at p. 3.) As we explain, Hutchings's mistake does not negate the specific intent of grand theft by false pretenses or conspiracy. [3] A conspiracy is an agreement between two or more persons, with specific intent, to achieve an unlawful objective, coupled with an overt act by one of the conspirators to further the conspiracy. (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1402.) These misrepresentations satisfy the intent element of conspiracy as well.