in pro per of the twenty minutes that our side have so i will never speak for about ten and michael who represents the third party will speak for about five would like to residence being subject to execution without having had the right to a due process hearing more evidence was presented to support bases for the enforcement of a judgment against that family home indicate mr hugh was not charged and was not a party to the judgment in fact the argument is that he cannot be a party to the judgment he cannot participate in challenging the judgment because it's a criminal judgment and that third parties do not have the right to attack criminal judgments for the purpose because criminal judgments are considered to be final and not subject to attack by the third party by a third party in this case that's a serious problem because as the briefs in the record indicate there was no evidence produced to show the amount of lost profits suffered by microsoft he wants to recently by the tenth circuit not only involved the specific issue it involves microsoft and the sale of counterfeit software and the third circuit in that case reversed a restitution hearing for the exact reasons or restitution determination for the exact reasons that we are arguing he was here restitution determination as to the defendant in the in the tenth circuit yes yes it was just what i thought creditor now wants to execute on the community what's your best case that the other spouse a good spouse can really get the amount the amount of the de let's not quibble let's say she it was litigated just let's say that in my crazy world it was litigated ok what's your best case from california ramification because the reason that he's that affected by this is because it's community property is that correct that's correct so is the ramification of your position then that in any restitution order where the we're not saying that it's not reachable on a i think your question your honor assumes that the fact that the restitution order against the defendant is final judgment as indicated there's no for the litigation there are but we have not just as we're arguing we've not established a situation where the innocent spouse for want of a better phrase at this point is not has not had an opportunity to litigate it and there's always the issue that is interesting is not subject to this debt that the non innocent spouse has incurred executes on the community california law says you can do it all the california on talking about what property is if it's community property what it is is that creditors can execute on the whole community for the death of one of the spouses that's what it's ok i think you're you're saying well yeah but when they do that they only get to keep half what i'm going to have does it transmitted to something other than community that's not an issue that has been raised by anyone at this point will i know that but but on your theory if the husband gets that it has to transfer mewed into something other than community if it doesn't it's still community property and we can exit the government can execute on her half of that community and if that works then he can next kid in the other half and i think the what's your ignoring that's well that's a question that i think it has not been raised i'm not prepared to answer because i haven't even considered it quite frankly is the we here we want the opportunity for mr yoo to be able to challenge the restitution order as applied to his interest in the community property that he's never had that opportunity judge fernandez question presumes that in a criminal restitution situation a defendant can contract away the innocent spouse has rights if this were a civil situation then he would have a right to intervene if for for one of criminal forfeiture situation he would have a right to intervene  the defendant spouse yeah correct we take the position that it can be attacked because it's illegal restitution order because it doesn't there was no evidence to support it but that's a separate issue i'm just assuming as ju as ask me too that it is a valid binding order in answering questions in that context but is still part of our argument that the restitution order is illegal because it wasn't supported by evidence in the civil situation that you may mention yesterday if this was just a different kind of a gag would be innocent have to be joining in order to go after the community in california no in arizona yes  it's interesting that it varies by state and there if it's not necessary and one spouse goes out and incurs just runs up a credit card bill or something like that that might get reduced  judgement and the other spouse is going to maybe lose a community property interest one never had anything to do with i think i think it would be probably inconceivable that a substantial judgment would be obtained against one spouse without the other spouse being aware of the litigation and having the right to intervene if that spouse felt that there was a basis for challenging the claim  what that hudson case in the twenty eight j letter says and what's the denouement of this procedure so now we have a judgment against her out of the restitution hearing and like say two million dollars just hypothetically and now the husband comes in at the execution hearing and he is permitted to attack the restitution amount and he gets it down to a million dollars ok so now you have les judgement for two million dollars husband is shown there really should only be a million dollars where do we go from there in terms of execution this is an execution procedure that happens that's correct your  think first of all i think it's it's not appropriate to presume there would be a million dollars a year at the prison the end just saying let's say that's what happens you can call it you can say that hers is is a and his is be which is less than a against her and he gets to have this big fight and at the execution stage to show that he really should have been being against her now what happens now in the execution order  depends on the value of the property that would be applied against his community property interest which i would presume much that they now execute on the property and what is it that we apply against his community property int in your view the amount of whatever the restitution order was determined to be on his hearing so we take half of being say he gets to keep the rest of that your position b is the amount that he's liable half of the community the pay paid out over to the government that would be my understanding ok i understand your point may i well i've been trying to feel the other questions here i would like to respond to your question about the severance of the community propert security property can be severed if the parties agree to it through chancery taishan and i would presume this would be quasar i voluntary involuntary severance of the community property so that that would be what would occur i'm sorry i wasn't prepared to answer that right off because you obviously had thought of the new issue that hadn't been brought up and i've only been in this case for a week so i would also like to point out that mccloy vs ashcroft on which the government relies really isn't sound precedent for the ignoring the rights of the third parties that case specifically stated that incited three circumstances in which third parties have been found unable to attack a criminal defendants judgment and those were related to free speech free association residence and employment none of them related to property and the courts specifically said we leave for another day th a crime and the government orders and the court orders a forfeiture of got defendants property anybody who has an interest in that property can come in an ancillary proceeding and in that ancillary proceeding they can assert their interest in that property and in those proceedings they in fact have a seems to be that a restitution order if there is no proof of loss by the victim a clear proof of loss presented to the court that constitutes an illegal sentence and if it's an illegal sentence and the court has no statutory jurisdiction to impose that illegal sentence and i would think that that issue is never waved not issue is something that can be raised by anybody any time so i'm not going to say any more about restitution other than to add that mr lay when chance stands in a completely different position even if she does not have the right to attack the restitution order which lisa chan has continues to attack that restitution order cannot apply to her interest in this property she provided the mother provided the down payment of almost five hundred eighty plus ten thousand dollars for the purchase of the property it's uncontroverted that money came from the mother's account the government and the court made some broad generalized statements about well maybe that wasn't her account well maybe that wasn't her money but there's no evidence by the government nothing with a given discovery that they asked for discovery of the source of the money did the government ask perfectly obvious this this case supposedly in money comes from her and supposing the properties put in the kids names so they can trick the bank into thinking it's their money and so they're going to loan to start with end then the property supposedly did to a trust not to the mother but to a trust the mother's trustee for the daughter and then the property is conveyed from the trust to the kids again so they can put it up for her bail at which point they represent to the court that it's her their property so your are are over now we're told even though it's not in the record obviously it can't be that they're now they have a separation agreement guess what now it's all split but of course it looks like she still lives on the property even though the property supposedly belongs to him it looks like an awful lot of moving around things and it seems to me that in that situation the government and the court could well ask for proof that the money in that account actually came from the mother we're going to bust that's not exactly what happened at all i mean you can give the sinister characterization to probably any particular fact in fact the property was put in the name of lisa g and her husband at the time of the purchase and the money and the down payment for the purchase was in fact provided by the mother there's nothing wrong about that there's nothing sinister about that it happens all the time in fact immediately afterward all the time if it's a gift it does not happen all the time unless the bank is told oh guess what we got we got this money from somebody else we want you to loan us the money but we're not putting our moen money and it's coming from someone else who told me all that was me playing to the bank yes it was you are in fact immediately after the purchase there was an attempt to submitted the issue on the construct of trust in the resulting trust also to me most that would and grand jury testimony so i just want to recreate a record for myself briefly to address the question of proof of the money that was paid judge we did request discovery on the source of the funds that were used thousand dollars quickly i'd like to address to the question of the chain of title it is a confusing chain of how the court seems to have a handle on how it works but i would like to point out that in spite of the fact that about the time of the purchase of the homestead on the property so whatever was happening and the district court gave very little weight to those documents whatever was happening was inconsistent with the declaration of homestead by the two community property holders the husband and wife two months it that is shown there and where does that get you well that would get me to the point where i would think she made a gift to her daughter because she put the title in her daughter's name with her husband and the community you know the position christie was making payments it's a matter of fact and the record shows that they were married at that time those has have to have been community property pa ok i'd like to i think councils argument confused a couple things were sort of two things going on at the same time so it's like a sort of stretching out a little bit the first is the community property issue and the second is really to my mind sort of a standing issue i think the court seems to have a handle on the community property issue that being when a spouse incurs a debt that the other spouse doesn't is does not incur any judgment is entered what can be used to pay that debt well under california chris you at the time the debt was incurred the property was community property and quite clearly under california law community property is used to pay those debts we think that's quite simple and it can be true that i mean i can  individual has a credit card that a spouse doesn't know about gets into trouble with a credit card and the judgment is entered and the credit card company i think would be surprised to learn that it wouldn't be able to collect that debt against the entire community there are  neighbors that chris you share is being taken well he doesn't really have a share on a community property law he has a right to community property which under california law is subject to the claims of creditors he doesn't have to share with the community property there's no part that he can protect on his own that's not the way community property works and in terms of standing i think i would refer the court against them a clear case which i thought was very well decided and clear makes clear that it is not appropriate for a third party to intervene in a criminal action i mean what counsel is arguing here is that the entire criminal case should be reopened a case that's been closed for five years you know where there when it's a criminal forfeit your you can get time to resolve ultimately when the question of whether it's a debt under california law was solved by the california legislature the california legislature look at the decision and said  restitution has to be paid victims are entitled to restitution and it should be collected just as any civil debt is collected so california the california legislature effectively overrule that decision by saying restitution should be collected just  basically ask the court to reconsider a settled judgment i think the answer to that is no there there was an appeal that was dismissed there was a twenty two fifty five motion which was that was by her by her right i think under federal case tells us that the appellant's don't have standing to attack the criminal sentence and i think that's the right result i think this is purely a matter of debt collection and basically a matter of federal federal law looking to california law for the rules or whether restitution judgment is a death the legislature did not overturn those cases by making the enforcement of judgments law applicable to the enforcement of restitution order it simply provided a procedure for collection it did not say that restitution order was a debt finding something is it dead as a matter of substantive law and procedural statutes don't change substantive law they only give a procedure for effecting collection in this case or some other procedural aspect the southerly case in which the government relies for the fact that they claim  case and the calhoun case was never raised probably because the defendants there weren't in pro per and they probably weren't aware of it the court did not consider it and i don't think it can be taken as precedent that  determines the issue because not only was calhoun not mentioned the the issue of whether restitution order was a judgment was not addressed calhoun remains sound law that restitution order