Filed 8/8/17 P. v. Swain 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

THEODORE SWAIN,

Defendant and Appellant.
D070272



(Super. Ct. No. SCD199072)

APPEAL from an order of the Superior Court of San Diego County, Charles R. Gill, Judge. Affirmed.
Theodore Swain, in pro. per., for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Theodore Swain appeals from an order of the trial court approving the sale of real property in New Mexico that the receiver acquired from Swain after Swain was convicted of securities fraud and other financial crimes. In connection with his convictions, Swain was ordered to pay his victims approximately $6.775 million in restitution, and the trial court appointed a receiver to take possession of Swain's assets, which included the real property in New Mexico, in order to effectuate the restitution order.
Swain, acting in propria persona, raises a number of arguments on appeal. We conclude that Swain's arguments are either moot, not cognizable on appeal from the order from which Swain is appealing, or have been forfeited by Swain's failure to adequately brief the issue. We therefore affirm the order of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
"In 2002, Theodore Swain founded First Fidelity Assurance Company (First Fidelity) to raise money for real estate development projects. Swain testified at trial that as First Fidelity's president, he established different development funds for different construction projects and sought investors for each development fund. Specifically, he established La Honda Project, Inc.; SoCal Development Fund LLC; New Mexico Development Fund LLC; Southwest Development Fund; and Southwest, El Segundo Fund. He mailed flyers advertising the projects to prospective investors and to those who responded, a packet including a prospectus describing a particular project, a subscription agreement and a First Fidelity business card. The prospectuses stated the investors would receive 'investment mortgage certificates,' which were promissory notes identifying an ownership share or ownership interest and were secured by a first trust deed or warranty deed on real property that First Fidelity held.

"Several individuals returned completed subscription agreements specifying the amount of their proposed investment in a particular development project to First Fidelity, which issued them mortgage certificates identifying their investment in a specific project, the investment amount, the interest rate, and the accrual date.

"In approximately 2003, Swain started the La Honda project to build five detached homes in Escondido, California, but the homes were not built because of problems obtaining permits and a City of Escondido moratorium on construction due to water unavailability. In 2004, Swain started the SoCal Development Fund, LLC to build condominiums and a duplex in the area around Lake Elsinore, California, but construction of that project never started. Swain sold securities classified as series A, B, and C, for the Southwest El Segundo Fund to build 139 dwelling units in Deming, New Mexico. The securities were differently classified based on the different time periods before they became redeemable; they yielded higher interest rates the longer the investment period. Only two model homes were completed.

"Swain testified he did not disclose to investors, either in the prospectuses or otherwise, his previous bankruptcy and three prior convictions for grand theft based on his prior real estate dealings. He explained he had never seen that kind of information disclosed in prospectuses. Swain sent the investors a quarterly newsletter, but never notified them of construction delays.

"In 2006, Swain was served a cease and desist order to stop offering or selling securities. He was arrested in 2006." (People v. Swain (Oct. 27, 2009, D053185) [nonpub. opn.].)

"In 2008, . . . Swain was convicted of several counts of securities fraud and other financial crimes and was sentenced to a 24-year prison term. The trial court ordered Swain to pay $6,775,213.82 in restitution to his victims, as recommended in the probation report, and appointed Thomas Seaman as receiver to take possession and control of Swain's assets for the purpose of effectuating the restitution order.[ ]

"In 2013, the receiver filed a motion to approve the sale of certain real property that the receiver had acquired from Swain. The receiver intended to use the proceeds of the sale toward Swain's restitution obligation.[ ] The trial court approved the sale. After the trial court approved the sale, the court received a letter from Swain challenging the propriety of the sale and requesting that the court set a new restitution hearing. The trial court denied Swain's challenge as moot in light of fact that the property had been sold, and also denied his request for a new restitution hearing." (People v. Swain (Apr. 23, 2014, D063960) [nonpub. opn.].)

On December 23, 2015, the receiver filed a motion seeking approval of the sale of additional real property that the receiver had acquired from Swain. The receiver proposed to sell approximately 187 acres of land, divided into 128 lots, together with two vacant homes in a "mostly undeveloped subdivision," outside of Deming, New Mexico, for $270,000. The receiver estimated that the receivership estate would "net approximately $140,000 from the sale," and expressed a belief that "the sale of the Property is in the best interests of the receivership estate and the investor/victims who are its sole beneficiaries." In addition, the receiver submitted a declaration in which he stated that he had fully complied with the requirements of Code of Civil Procedure sections 568.5 and 701.540 in effecting the sale, and that he had properly served all necessary parties.
On January 13, 2016, Swain submitted a document entitled "Objection to Motion and Sale of Real Property as Requested in Motion to Approve and Confirm Sale." (Some capitalization omitted.) In this document Swain claimed that "El Segundo Cincuenta Corporation was not served in the instant matter and suffered no judgment." He also asserted that "[n]o liability was established nor was the ownership of El Segundo established," and that the superior court "failed and refused to acquire jurisdiction over the corporation or it's [sic] assets." Swain contended that the trial court and the receiver had "perpetrate[d] a fraud upon investors, the 'People,' El Segundo obligees and shareholders, as well as defendant" by refusing to sell the properties in question for their full value, which, Swain contended was approximately $3,700,000. Swain concluded, "[T]he court is a con-man who wasted investor assets, defrauded the investors, and is responsible for investor losses which it wrongfully convicted and sentenced defendant for." Swain attached as exhibits a motion and a declaration filed by the bankruptcy trustee in 2008.
On the same day that Swain submitted his objection to the sale of the real property near Deming, New Mexico, Swain also filed a motion to vacate the judgment. Swain alleged that the bankruptcy trustee, former Attorney General Kamala Harris, and the trial court had conspired to prevent him from selling the properties for their true value, and that the receiver had allowed those assets to waste and depreciate. Swain asserted that as a result of this conspiracy, he was deprived of a fair trial and was precluded from making his investors whole. Attached to the motion to vacate the judgment were copies of the motion and declaration from the bankruptcy trustee that had also been attached to the objection to the sale that Swain had filed, two letters from an accounting firm, as well as a new trial motion that all appear to have been prepared between 2008 and 2010.
At a hearing held on January 29, 2016, the trial court determined that Swain had received adequate notice of the hearing, and that the sale of the New Mexico property was "in the best interest of the state as well as the victims." The trial court denied both Swain's objection to the sale and the motion to vacate the judgment. The trial court concluded, "As it relates to Mr. Swain's documents, all of those issues and arguments raised by Mr. Swain have previously been litigated and dismissed and/or denied by this court and appropriate appellate courts." The trial court filed an "Order to Approve and Confirm Sale of Real Property."
Swain filed a notice of appeal from the trial court's Order to Approve and Confirm Sale of Real Property on March 30, 2016.
III.
DISCUSSION
Although the precise nature and breadth of Swain's claims are not entirely clear from his briefing, it appears that he is attempting to challenge both the trial court's January 29 order approving the sale of the New Mexico property, as well as his 2008 conviction and the trial court's subsequent restitution order. As we explain, none of these challenges has merit.
A. Swain's challenge to the trial court's order approving the sale of the New Mexico property is moot

It appears from Swain's briefing that he is challenging the trial court's January 29, 2016 Order to Approve and Confirm Sale of Real Property.
The receiver sought permission to sell the property pursuant to section 568.5, which provides:
"A receiver may, pursuant to an order of the court, sell real or personal property in the receiver's possession upon the notice and in the manner prescribed by Article 6 (commencing with Section 701.510) of Chapter 3 of Division 2 of Title 9. The sale is not final until confirmed by the court."

Section 701.680, in turn, provides that "a sale of property pursuant to this article is absolute and shall not be set aside for any reason." (Italics added.)
The People have requested that this court take judicial notice of a Settlement Statement evidencing the sale of the 128 parcels of land in Luna County, New Mexico that were the subject of the trial court's order approving the sale of the New Mexico property. The People request that judicial notice be taken pursuant to Evidence Code section 452, subdivision (h), which provides that a court may take judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." Evidence code section 452, subdivision (h) refers to the taking of judicial notice of "[f]acts and propositions," not documents. However, we construe the People's request as a request for judicial notice of the fact of the sale of the New Mexico property that is the subject of the trial court's order approving the sale of that property. Given that such a fact is indeed capable of immediate and accurate determination by resort to a source of reasonably indisputable accuracy—i.e., the settlement statement establishing the fact of the sale for the price approved of in the trial court's order—we grant the People's request for judicial notice of the fact of the completed sale of the property to a third party.
We have taken judicial notice of the fact that the New Mexico property has been sold. That sale is final and may not be set aside. (§ 701.680.) Thus, even if Swain had a valid claim that the sale of the New Mexico property was somehow improper, he identifies no meaningful relief that this court could grant him, given the fact that the property has been sold. " ' " ' "When no effective relief can be granted, an appeal is moot and will be dismissed." ' " ' " (Costa Serena Owners Coalition v. Costa Serena Architectural Com. (2009) 175 Cal.App.4th 1175, 1206.)
We therefore conclude that to the extent that Swain is claiming that the trial court erred in approving the sale of the New Mexico property, any such claim is moot in light of the sale of the property. We therefore dismiss his appeal to the extent that it challenges the January 29, 2016 order approving the sale of the New Mexico property.
B. Swain's arguments regarding his restitution hearing are not cognizable on appeal from the court's order approving the sale of the New Mexico property; these claims have already been considered and decided against Swain in an earlier proceeding

To the extent that Swain is arguing that he was effectively denied a restitution hearing because he was not personally present at the hearing, and that he is therefore entitled to a new restitution hearing, these claims are untimely, given that the time within which Swain could appeal from the restitution order has long since passed. Further, as Swain appears to concede, these arguments are simply reprisals of the same arguments that Swain raised and that this court rejected in People v. Swain (Apr. 23, 2014, D063960) [nonpub. opn.]. In that prior opinion, this court concluded that any appeal from the 2008 orders of the court would be untimely, and that " 'prior final orders are not reviewable in an appeal of a subsequent order.' " (People v. Swain (Apr. 23, 2014, D063960) [nonpub. opn.].) This court's prior determination of these issues is law of the case; these issues are thus not cognizable in this appeal. (See People v. Whitt (1990) 51 Cal.3d 620, 638 (Whitt) [law of the case doctrine "prevents the parties from seeking appellate reconsideration of an already decided issue in the same case absent some significant change in circumstances"].)
Swain also "reasserts his argument in D063960, that this court again unconstitutionally denied counsel in this matter of his liberty interests." This issue was also decided against Swain in the prior appeal. (People v. Swain (Apr. 23, 2014, D063960) [nonpub. opn.].) This court's prior opinion on this issue is also law of the case, and Swain's argument regarding the appointment of counsel is therefore not cognizable on appeal from the trial court's order approving the sale of the New Mexico property. (See Whitt, supra, 51 Cal.3d at p. 638.)
C. Swain's argument regarding a Brady violation
Swain also now contends that the prosecution committed a Brady violation by engaging in prosecutorial misconduct related to the properties that were seized from Swain. In this regard, Swain states, in relevant part:
"(1) [D]espite the state's fraudulent acts in the first instance, the Trustee's investor payoff was obstructed and thwarted by the government in 2007, beginning long before defendant's 2008 wrongful conviction; [¶] (2) the state failed/refused to disclose or report its bad acts to defense or jury; [¶] (3) the information not disclosed was material to the defense and the jury, and the nondisclosure itself, was prosecutorial misconduct; [¶] (4) the fraudulent and bad faith acts of the government caused real and personal properties to lose value owed to loss of foreclosure, waste, and devaluation, the same properties being security for relevant investor notes [citation]; and [¶] (5) the nondisclosure was material; was a Brady violation affecting [Swain]-Petitioner's substantial rights, his conviction, and his sentence. The Brady violation altered outcome of the proceedings."

Essentially, Swain appears to be suggesting that by seizing and freezing Swain's assets, the prosecution prevented those assets from being sold for a higher price, thereby effectively preventing Swain from being able to more fully reimburse those who had "invested" with him. Swain seems to be contending that if the assets had been sold in a timely manner, they could have been sold for far greater amounts than were ultimately realized, and he would have been able to pay back the investors; thus, according to Swain, he would either have been exonerated of the crimes for which he was convicted, or he would have been relieved of the obligation to pay the victim restitution ordered by the court.
To the extent that Swain is suggesting that the prosecution's conduct in freezing his assets constitutes a Brady violation, such an argument is wholly without merit. "To challenge a conviction on Brady grounds, defendant must show that the prosecution suppressed evidence, that the suppressed evidence was favorable to the defense, and that it was material." (People v. Zaragoza (2016) 1 Cal.5th 21, 52.) Swain has identified no evidence that the People purportedly suppressed, let alone exculpatory evidence. Further, even if the freezing of his assets could form the basis of a Brady violation, Swain and his defense attorneys were aware during the pendency of the criminal proceeding that Swain's assets had been frozen. "If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then, at least as far as evidence is concerned, the defendant has all that is necessary to ensure a fair trial, even if the prosecution is not the source of the evidence. [Citations.] Accordingly, evidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it ' "by the exercise of reasonable diligence." ' " (People v. Salazar (2005) 35 Cal.4th 1031, 1049.)
To the extent that Swain suggests that the prosecution's conduct in freezing his assets made it difficult or impossible for Swain to contest the amount of restitution that the trial court ordered, he has already raised this claim in a previous appeal, and it has been denied. (See People v. Swain (Apr. 23, 2014, D063960) [nonpub. opn.].) Further, such a claim is not cognizable on appeal from the trial court's final order approving and confirming the sale of the New Mexico property. (See In re Vincent M. (2008) 161 Cal.App.4th 943, 953 ["prior final orders are not reviewable in an appeal of a subsequent order"].)
Finally, Swain requests permission to file "a cross-complaint against the culprits" based on the purported conduct associated with the freezing of his assets. It is not clear what, exactly, Swain would like this court to do with respect to such a claim; however, given that Swain is not a defendant in a civil action, there is no basis for the filing of a civil "cross-complaint."
D. To the extent that Swain is raising an argument regarding the former Attorney General of California, any such argument has been forfeited

Swain uses a portion of his brief to complain about the purported actions of former Attorney General Kamala Harris. Swain's argument in this regard lacks coherence and is not supported by citations to legal authority or evidence. We therefore consider this issue to be forfeited. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364 ["If a party's briefs do not provide legal argument and citation to authority on each point raised, ' "the court may treat it as waived, and pass [on] it without consideration" ' "].)
IV.
DISPOSITION
The January 29, 2016 order of the trial court is affirmed.


AARON, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.