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People v. Caro

Court of Appeals of California, Second District, Division Six.
Nov 4, 2003
2d Civil No. B161905 (Cal. Ct. App. Nov. 4, 2003)

Opinion

2d Civil No. B161905.

11-4-2003

THE PEOPLE, Plaintiff, v. SOCORRO SUSAN CARO, Defendant. XAVIER CARO, Movant and Appellant; COUNTY OF VENTURA, Objector and Respondent.

Law Offices of Henry Friedman and Henry Friedman, Van Etten, Suzumoto & Becket and Keith A. Sipprelle for Movant and Appellant Xavier J. Caro Frank O. Sieh, County Counsel, Matthew A. Smith, Assistant County Counsel for Objector and Respondent County of Ventura.


Xavier Caro (Xavier) appeals from an order denying his motion to intervene in the criminal prosecution of his ex-wife for the purpose of vacating an order that she reimburse the public defender for legal fees. (Code Civ. Proc., §§ 387, 663; Pen. Code, § 987.8.) We affirm.

Because two of the interested parties in this case share the same last name, we refer to them by first name only.

BACKGROUND

Xavier had been married to Socorro Caro (Socorro) for many years when she shot and killed three of their four children in the family home. Socorro was charged with capital murder. Xavier filed for divorce and brought a separate wrongful death action against Socorro. The proceedings in both of those civil cases were stayed pending Socorros murder trial.

Socorro was originally represented by retained counsel in her criminal case. She petitioned the family court for an early disbursement of her share of the couples community property so she could pay her legal fees. Xavier objected and the family court refused Socorros request. Because Socorro could not gain access to any of her substantial community assets, her retained counsel withdrew from the case. The Ventura County Public Defender was appointed to represent her.

Following a jury trial, Socorro was convicted of murder and sentenced to death. Respondent County of Ventura (the County) sought reimbursement of the public defenders fees under Penal Code section 987.8. Socorro did not oppose the request and waived her right to appear at the hearing. The trial court determined that Socorro had the present ability to pay and ordered her to reimburse the County for $307,250 in legal fees. The County subsequently filed liens on two pieces of real property owned by Xavier and Socorro and sought a writ of execution on the property that had been the family home.

Xavier filed a motion to intervene in the proceeding under Penal Code section 987.8 and to vacate the reimbursement order awarding legal fees to the County. As to his intervention request, Xavier argued that his motion should be granted because he had a community property interest in the assets that would be used to pay the fees and the payment of fees would interfere with his ability to satisfy any civil judgment he received in his wrongful death action against Socorro. As to the claim that the reimbursement order should be vacated, he argued that there had been no adequate showing at the prior hearing that Socorro had the ability to pay those fees.

The trial court denied Xaviers motion. It stated at the hearing that it was not convinced Xavier had standing to seek intervention, but assuming he did, there was no reason to set aside the prior order for reimbursement. The court noted that evidence of Xaviers and Socorros community assets had been presented during the criminal trial and showed that Socorros share of those assets was "in the seven figures." Based on this evidence, Socorro had a present ability to reimburse the County for her legal fees.

DISCUSSION

Code of Civil Procedure section 387, subdivision (b) allows a third party to intervene in a pending case as a matter of right when "any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that persons ability to protect that interest . . . ." Code of Civil Procedure section 663, paragraph 1, provides that a "party aggrieved" may move to vacate a judgment on the ground that there was an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ."

Xavier contends he was entitled to intervene in the Countys proceeding to recover legal fees from Socorro because he is a person who "claims an interest relating to the property or transaction which is the subject of the action" under Code of Civil Procedure section 387, subdivision (b). He further argues that he was a "party aggrieved" under Code of Civil Procedure section 663. The County responds that these statutes apply only to civil cases and supply no basis for Xaviers participation in a proceeding for reimbursement of attorneys fees under Penal Code section 987.8.

Code of Civil Procedure sections 387 and 663 are contained in part 2 of that code, which pertains to civil actions. Numerous published decisions have determined that statutes contained in this portion of the Code of Civil Procedure govern criminal cases or special criminal proceedings only if they have been made expressly applicable thereto. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 727-729 & fn. 12; People v. Hernandez (2000) 22 Cal.4th 512, 525 & fn. 2; Gonzales v. Superior Court (1935) 3 Cal.2d 260, 263; People v. Castello (1998) 65 Cal.App.4th 1242, 1247; People v. Glimps (1979) 92 Cal.App.3d 315, 325, fn. 6.) Under these authorities, and absent an explicit provision to the contrary, the intervention procedure under section 387 and the motion to vacate under section 663 do not apply to criminal cases or special criminal proceedings. But this leaves open the question of whether a hearing under Penal Code section 987.8 is a "criminal" proceeding, given that its purpose is the reimbursement of legal fees rather than the adjudication of guilt or a determination of the evidence admissible in a criminal trial to determine guilt. (Contrast People v. Superior Court (Laff), supra, 25 Cal.4th at pp. 722-727.)

Ultimately, we need not resolve this issue. Xaviers sole reason for seeking intervention in the proceedings under Penal Code section 987.8 was to bring his motion to vacate the trial courts earlier order that Socorro reimburse the County for her legal fees. Assuming his motion to vacate under Code of Civil Procedure section 663 was properly before the trial court, Xavier has not established that the court erred by denying the motion.

Legal fees were awarded to the County under Penal Code section 987.8, subdivision (b): "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, . . . the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. . . ." The statute further provides that "[i]f the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county in the manner in which the court believes reasonable and compatible with the defendants financial ability." (Id., subd. (e).)

"Ability to pay" for purposes of fee reimbursement is defined as "the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her . . . ." (Pen. Code, § 987.8, subd. (g)(2).) Relevant factors include the defendants present and "reasonably discernible" future financial condition, although "[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendants reasonably discernible financial position." (Id ., subd. (g)(2)(A) & (B).) "Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense." (Id ., subd. (g)(2)(B).) The trial court in this case concluded that Socorros interest in substantial community property assets was an unusual circumstance supporting a reimbursement order, notwithstanding her commitment to prison on a death sentence.

Xavier complains that when the court entered the reimbursement order, the family law action was still pending and the exact value of Socorros assets was unknown. He argues that the court should have granted his motion to vacate the reimbursement order because Penal Code section 987.6, subdivision (g)(2)(B) limits the court to a period of six months when considering the defendants reasonably discernible future financial condition, and it was unlikely the couples assets would be distributed within six months.

A successful motion to vacate requires a showing that the challenged order had an "incorrect or erroneous legal basis" that was "not consistent with or supported by the facts" under Code of Civil Procedure section 663. It is a limited remedy to be used only when the trial court has made an incorrect conclusion of law or rendered an erroneous judgment on the basis of uncontroverted evidence. (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) A motion to vacate may not be used to challenge the sufficiency of the evidence supporting the underlying order. (Ibid.)

When it ordered Socorro to reimburse the County for her legal fees, the court made the factual determination that her assets were adequate to cover those fees. Having made this determination, the legal basis of the reimbursement order was correct and consistent with the facts found true. The motion to vacate was properly denied.

Xaviers real complaint is that the evidence presented at the earlier fee hearing did not support the factual determination that Socorro had the present ability to pay her fees. But this is a challenge to the courts original order awarding fees and is not cognizable in an appeal from the denial of the subsequent motion to vacate under Code of Civil Procedure section 663. "[W]e are confined in our review to a determination of whether the conclusions of law and judgment are consistent with and supported by the findings of fact." (Newbury v. Civil Service Commission (1940) 42 Cal.App.2d 258, 259.)

In any event, the record does not support Xaviers claim that the court abused its discretion when it concluded that Socorros financial condition supported a fee award. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1393.) The order was justified if Socorro had a sufficient present interest in community property to reimburse the County, even if the County could not collect the fees within six months. Xavier presented no affirmative evidence in support of his motion to vacate to suggest the court had been mistaken about the overall value of the couples assets when it ordered reimbursement. Nor did he show that the reimbursement order was unsupported by the evidence presented during the criminal trial. A lower court order is presumed to be correct on appeal and the appellant has the burden of affirmatively demonstrating reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Xavier did not carry his burden of demonstrating that the reimbursement order was an abuse of discretion.

Xavier argues that the court should have vacated the reimbursement order because it will inevitably result in the sale of the family home, in which he currently lives, and could prejudice his property rights in the family law proceeding. We are not persuaded. The court ordered that Socorro reimburse the County for legal fees, but left open the manner in which the County can collect those fees. Penal Code section 987.8, subdivision (e) provides that this order may be "enforced in the manner provided for enforcement of money judgments generally . . . ." The County subsequently filed a lien on the family home and attempted to execute on that lien through a sale of the property, but this lien and writ of execution were not a part of the reimbursement order and are not before us on appeal.

Xavier makes the point that it would be inappropriate to allow the County to force the sale of a particular piece of community property to pay Socorros legal fees when the family court has not yet divided the couples assets. We agree with him that the writ of execution on the family home appears premature. But the remedy is not to set aside the reimbursement order, which provides only that the County is entitled to recover fees from Socorro. Rather, Xavier may seek a writ of mandate postponing the sale of the property as not subject to execution until its status has been determined by the family court. (SeeAhart, Cal. Practice Guide: Enforcing Judgments and Debts (The Rutter Group 2001) ¶ 6.613 p. 6D-69, citing United Taxpayers Co. v. San Francisco (1927) 202 Cal. 264, 266-267.)

Counsel informed this court during oral argument that the writ of execution has been stayed pending this appeal.

Xaviers claim that the trial courts reimbursement order could be binding on the family court through the doctrine of collateral estoppel is unfounded. Collateral estoppel prevents a party or privy from relitigating in a second proceeding an issue that was already litigated and necessarily decided in a previous proceeding. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) Here, the trial court made a finding that Socorro had the financial capability of reimbursing the County for her legal fees, but did not purport to make any order regarding the division of community property. Even if the trial courts order could somehow be construed as a determination that Socorros share of community property was at least equal to the amount of her attorney fees, Xavier was neither a party nor a privy to the criminal proceeding, and the finding is not binding against him in the family court.

We also reject Xaviers claim that his wrongful death action requires that the reimbursement order be vacated. We have taken judicial notice that after the motion to vacate was heard and denied, Xavier obtained a $45 million default judgment against Socorro. He is now a creditor against her and may seek to enforce that judgment to the extent possible, but he cites no authority for the proposition that his civil judgment has priority over the Countys claim for reimbursement.

Xavier finally complains that the reimbursement order should be set aside because Socorro was not present at the hearing when it was issued. This argument has no merit because the record reveals that Socorro was represented by counsel at that hearing and had affirmatively waived her right to be personally present. Socorro did not dispute the amount of the fees or challenge the Countys entitlement to those fees under Penal Code section 987.8, but this was her prerogative and did not invalidate the reimbursement order.

CONCLUSION

The County has an obligation to provide legal services to indigent persons who are criminally accused. Penal Code section 987.8 reflects a strong legislative policy of preserving scarce financial resources by shifting the costs of trial from the taxpayers to the defendant whenever the defendant has the financial wherewithal to pay some or all of those costs. (People v. Smith (2000) 81 Cal.App.4th 630, 641.) The underlying facts of this case are inarguably tragic, but Socorro was obligated to reimburse the County for her legal expenses to the extent possible.

The trial courts order does not reduce Xaviers share of community property assets or prejudice his rights in the family law case that is still pending. The Countys enforcement of the reimbursement order may ultimately require the sale of some of the couples real property, but Xavier may seek a writ of mandate to forestall the execution of the lien on the family home until the community assets have been divided. We express no opinion as to the appropriate division of the couples assets.

The judgment is affirmed. Costs on appeal are awarded to the County.

We concur: GILBERT, P.J., PERREN, J.


Summaries of

People v. Caro

Court of Appeals of California, Second District, Division Six.
Nov 4, 2003
2d Civil No. B161905 (Cal. Ct. App. Nov. 4, 2003)
Case details for

People v. Caro

Case Details

Full title:THE PEOPLE, Plaintiff, v. SOCORRO SUSAN CARO, Defendant. XAVIER CARO…

Court:Court of Appeals of California, Second District, Division Six.

Date published: Nov 4, 2003

Citations

2d Civil No. B161905 (Cal. Ct. App. Nov. 4, 2003)