Filed 4/25/07 P. v. Ghoghas CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Affirmed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________

A jury convicted appellant, Francois Ghoghas, of one count of attempted second degree robbery[1]while using a deadly and dangerous weapon, a knife.[2] He appeals his conviction, claiming the court erred in denying his motion for mistrial because it was an incurably prejudicial error for the investigating officer to mention he checked the police departments computer for appellants prior contacts. Appellant also asserts the courts order requiring him to reimburse the county $6,856.45 in legal fees and $734.36 in investigative costs must be reversed because the court imposed its order without notice, a hearing or findings regarding his ability to pay, and thus in violation of the statutory requirements for assessing the cost of court-appointed legal representation. We find, and the People agree, appellants latter argument has merit. Accordingly, we will vacate the order assessing attorney fees and costs and remand to the trial court to conduct a noticed hearing on appellants current ability to pay such fees and costs consistent with the statutory mandates. We affirm the judgment in all other respects.

FACTS AND PROCEEDINGS BELOW

The victim, Elena Kryvko, was the cashier in a mini-mart of a Savon gas station in Burbank.[3] On November 12, 2004 she was working alone in the mini-mart and was preparing to close up for the night. Sometime between 10:00 and 10:30 p.m. Kryvko went outside to get some water to wash the coffee pot. She noticed a car and thought it unusual for the car to have backed into, rather than pulled into, a parking spot near the edge of the lot. Kryvko thought the car looked as if it was ready to leave the station. Kryvko was about seven feet away from the car as she walked past. She described the car as a big, black SUV.

Kryvko walked to the back of the store with the water to finish cleaning the coffee pot. A minute later a man entered the store. He was wearing blue jeans and a long sleeve shirt. He had a baseball cap on his head and a bandana covering his face. He gestured to her with his hand, motioning for her to come over to him. The man was standing by the swinging door leading to the cash register. He told her, Come over here and give me the money. The man told her he had a knife and gestured with his hand so Kryvko could see the knife. The blade was between five to six inches long. The man was very persistent in his demands for the money and told her to hurry up. He pointed the knife at her and warned her not to make him mad.

Kryvko told the man to back away from the cash register. Kryvko refused to give the robber the stores money as a matter of principle. She approached the cash register as he little by little began to back away. He kept demanding money and Kryvko kept telling him to move further away. By this time only six feet separated them. The man became very nervous and yanked off the bandana covering his face. With his mask removed Kryvko instantly recognized the man as a regular customer of the gas station. Kryvko testified the man also came into the mini-mart on average two to three times a week to purchase Marlboro Light cigarettes. Kryvko had been working at the mini-mart for approximately two years. She estimated she had seen the man at least 100 times before. The man was appellant.

Just then a car drove into the gas station and pulled up to a gas pump. Appellant ran out of the store and toward the SUV.

Kryvko ran to the door to close it. She saw the big, black SUV drive out of the gas station very quickly. A woman with long blond hair in a pony tail drove the SUV.

Kryvko called 911 for emergency assistance. She told the dispatcher a man had just attempted to rob her at the mini-mart and he was armed with a knife. Kryvko told the dispatcher the man had just driven off in a black SUV, like Suburban, driven by a female. Kryvko said she recognized the would-be robber as a regular customer of the gas station. Kryvko told the dispatcher she thought he might be Hispanic. Officers arrived at the mini-mart within minutes.

A few days later Detective Brent Dyrness of the Burbank Police Department interviewed Kryvko at the mini-mart. Kryvko told the detective she recognized her would-be robber as a regular customer. She said he frequently came into the gas station and also purchased Marlboro Light cigarettes two to three times a week. Kryvko explained she recognized the robbers face but did not know his name. Kryvko told the detective she thought it unusual how the large black SUV had parked that evening. She also explained how the SUV took off at a high rate of speed shortly after appellant left the mini-mart.

Detective Dyrness separately interviewed the businesss owner, Daniel Ishekian. Ishekian showed the detective the security camera video of the incident. Eventually, the detective produced freeze frame still photographs of the events recorded on the security camera video. The photos show, among other things, Kryvko going outside to get water, the black SUV parked at the edge of the lot, and later the black SUV leaving the gas station.

Ishekian provided the detective with appellants name as a possible suspect based on Kryvkos description of the would-be robber as a Hispanic looking, frequent customer of the gas station and mini-mart who regularly purchased Marlboro Light cigarettes and drove a big, black SUV.

Ishekian had not always known appellants name. Recently, appellant had brought in his black Lincoln Navigator to have its battery repaired and persuaded Ishekian to accept his personal check in payment. Appellants check was returned to Ishekian for insufficient funds. From the information on the check Ishekian learned appellants name and the fact he lived only two doors away from the gas station. Ishekian also learned appellant and his family were of Armenian heritage. For this reason Ishekian believed appellant would make good on the returned check.

Detective Dyrness ran appellants name though the police departments inhouse computer which contained prior contacts with the police department. From Department of Motor Vehicle (DMV) records the detective learned appellant was the registered owner of a black 1999 Lincoln Navigator. The other registered owner was Margaret Hull, appellants sister-in-law.

Detective Dyrness prepared two six-pack photographic line-ups. One six-pack included a photograph of appellant obtained from the DMV. The other photographic line-up included a photo of Margaret Hull and other females. After admonishing Kryvko, the detective showed her the photographic line-ups. Kryvko immediately selected appellants photo. She explained she selected his photo, [b]ecause this is the very same person who was there at the gas station that night and who demanded money. She explained he also just happened to be a regular customer at the gas station. Kryvko could not identify any of the females in the six-pack photographic line-up.

Based on Kryvkos identification Detective Dyrness obtained a warrant for appellants arrest. Appellant was arrested a few days later. During the booking process Dyrness recovered a package of Marlboro Light cigarettes from appellants pocket.

Appellant presented alibi and mistaken identity defenses.

Miguel Angel Contreras Diaz was the gas station customer who had apparently interrupted the robbery. Diaz testified he drove into the gas station, pulled his car up to a gas pump and started walking toward the cashier. While walking, Diaz started pulling his money from his pocket. Just then he saw a shadow quickly pass him. He barely saw the person and did not see the persons face. The person was wearing a baseball cap. Diaz thought the person was Latino or Mexican. Diaz did not see any other vehicle in the gas station.

Officer Jared Cutler was one of the first officers on the scene in response to Kryvkos 911 telephone call. He interviewed Kryvko but it was difficult because of her limited English skills. Kryvko had described the would-be robber to him as a male Hispanic, approximately five feet, six inches tall, wearing a blue shirt, blue jeans and a black bandana covering his face. She did not mention a baseball cap. She told the officer the knife was approximately three inches long. Kryvko told the officer she recognized the would-be robber as a regular customer of the gas station and mini-mart and that he came in regularly to purchase Marlboro Light cigarettes.

Officer Cutler removed the wooden swing door leading to the cash register area in order to test it for possible fingerprints.

Margaret Hull is appellants sister-in-law. She and appellant worked at the same aircraft company and used to car pool to work together in the Lincoln Navigator. Hull worked in the office and appellant worked in the shipping and receiving department. In September 2004 appellant sustained an injury requiring surgery and stopped working. Hull lived in the same apartment building as appellant and his mother. She visited appellant at his mothers house and noticed he was still sore and not walking properly in November 2004.

Hull often went to the Savon gas station and mini-mart and knew Kryvko. They had frequent chats about their children or pets.

May Ghoghas is appellants mother. She and appellant lived together two buildings away from the Savon gas station. She knew the owner, Ishekian, well. Sometimes the two conversed in Armenian. She shopped at the mini-mart on nearly a daily basis to purchase small items needed for the house. She also knew Kryvko. Mrs. Ghoghas testified the two women became friendly after Mrs. Ghoghas saw Kryvko in tears when someone damaged her cars windshield. Mrs. Ghoghas comforted Kryvko and they had had a pleasant relationship ever since.

Mrs. Ghoghas cared for appellant after his hernia surgery in September. He was in a lot of pain and had difficulty moving around. His condition became worse when his surgical wound became infected. Appellant had to return to the hospital on several occasions to clean the wound and cure the infection. In November appellant still limped and had difficulty walking up and down stairs.

One day while waiting in the hallway in the courthouse, Kryvko sat down next to her and apologized. According to Mrs. Ghoghas, Kryvko said some days she had doubts about the accuracy of her identification of appellant as the would-be robber. Mrs. Ghoghas testified Kryvko explained she did not want to jeopardize her chances of getting a green card and for that reason was too scared to change her testimony now.

Claudia Schwartz is appellants girlfriend. She has long, light colored hair. They started dating in July 2004 but after appellant stopped working the first and last time they went out was November 12, 2004. That evening Schwartz put her children to bed and appellant picked her up in his Lincoln Navigator between 8:30 and 9:00 p.m. She and appellant then stopped at his mothers house before driving to Hollywood. They cruised back and forth on Sunset Boulevard for several hours and then stopped at a McDonalds to eat. They parked along Sunset Boulevard and made out. Appellant drove her home around 12:30 or 1:00 a.m. They did not stop at the Savon gas station.

Schwartz acknowledged Detective Dyrness called and asked her to come to the station for an interview. She agreed to meet with the detective but had no intention of actually going. Schwartz explained she had an outstanding warrant and was fearful the detective might arrest her if she showed up at the station.

The prosecution recalled Detective Dyrness on rebuttal. He testified he wanted to interview Schwartz after he learned she might be an alibi witness. The detective knew Schwartz had an outstanding warrant. He called her and left a message. When Schwartz returned his call he informed her he knew about her warrant but told Schwartz he would not arrest her because his first priority was to solve the attempted robbery case. Schwartz promised to meet with him, but did not.

Detective Dyrness was present when appellant was booked into jail. According to the detective, appellant did not complain of pain, did not limp and had no difficulty walking. During the booking process appellant stated he did not need any medical attention, although he said he had had a hernia operation and was then on antibiotics. A video of the booking process showed appellant bending down to take off his belt, shoes and socks and then walking down the corridor.

The prosecution presented a portion of appellants former testimony from his first trial. Appellant testified he had been in the mini-mart hundreds of times and had never had an unpleasant encounter with Kryvko. He denied attempting to rob Kryvko. Appellant stated on the date of the attempted robbery he was with Schwartz in Hollywood, cruising Sunset Boulevard, eating at McDonalds and making out. Appellant testified he did not get home until around 1:00 a.m. and did not go to the Savon gas station.

An information charged appellant with attempted second degree robbery.[4] The information alleged appellant personally used a deadly and dangerous weapon, a knife.[5] The information also alleged appellant had committed the offense while released on bail,[6]had suffered a prior conviction for robbery within the meaning of the three strikes law,[7]and had suffered another prior conviction for possession of a controlled substance.[8]

Appellants first trial ended in a deadlocked jury and the court declared a mistrial. On retrial, the court granted appellants motion to bifurcate trial on the prior conviction allegations. Appellant waived jury trial on the prior conviction allegations.

The jury convicted appellant of the attempted robbery charge and found true the personal use of a deadly weapon allegation. The court found the prior conviction allegations true, but found insufficient evidence to sustain the on bail enhancement allegation, and found it to be not true.

The court denied appellants motion to strike his prior robbery conviction under People v. Superior Court (Romero).[9] The court also denied appellants motion for new trial which asserted a claim of insufficient evidence to support the jurys verdict and a claim the trial court had coerced the jury to reach a verdict.

The court sentenced appellant to the mid-term of two years in state prison, doubled to four years as a second strike. The court added one year for the weapon enhancement and five years for the section 667, subdivision (a) enhancement, for a total term of ten years. The court assessed fines and made other orders. The court also directed appellant to reimburse the county $6,856.45 in attorney fees and $734.36 in investigation fees.

Appellant appeals from the judgment.

DISCUSSION

I. APPELLANT HAS FAILED TO ESTABLISH THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING HIS MOTION FOR MISTRIAL.

The investigating officer, Detective Dyrness, testified in the prosecutions case-in-chief. The prosecutor asked the detective what actions he took after Ishekian told him appellants name. Detective Dyrness testified he went to the Burbank Police Department and ran appellants name in the police departments in-house computer. The detective stated the in-house computer had all of appellants prior contacts with the police department.

Defense counsel immediately requested a side bar hearing and in chambers moved for mistrial. Defense counsel explained the detective had also mentioned prior contacts at appellants first trial and was then admonished not to mention anything about appellants prior arrests or convictions. Defense counsel told the court, [h]e did the exact same thing again, just indicated before the jury that my client has prior contacts. Your honor, that is uncalled for and I am moving for a mistrial.

The prosecutor was surprised by the detectives testimony because both he and the court had admonished the detective not to mention anything about appellants prior police contacts. The prosecutor agreed the detective should not have mentioned prior contacts, but pointed out the contacts referred to could also mean vehicular violations.

The court brought the detective into chambers and told him defense counsel had just moved for a mistrial because he had mentioned appellants prior contacts with the Burbank Police Department. The court inquired precisely what the detective meant by prior contacts. Detective Dyrness explained he used the prior contacts in the police departments computer to learn the license plate numbers of vehicles registered in appellants name, and specifically in this case, to learn whether appellant in fact was the registered owner of a big, black SUV as described by the witness.

The court explored ways to mitigate the potential damage from the detectives testimony. The court suggested the prosecutor ask a series of follow-up questions to clarify in the jurors minds the contacts referred to were DMV contacts for the purpose of learning whether appellant owned the described vehicle.

In response, defense counsel argued now the jurors had heard of prior contacts nothing could cure the prejudice already inflicted on the defense case. Defense counsel informed the court, I dont think it can be cured by some simple instruction or line of questioning. Not unless the officer is willing to go out there and testify by prior contacts I only meantI was talking about prior Department of [] Motor Vehicles contacts as far as the vehicle history is concerned.

The court denied defense counsels motion for mistrial. The court then directed the prosecutor to ask a series of questions so the detective could clarify that by mentioning prior contacts he meant prior DMV contacts. When the detective returned to the stand he testified as directed and explained he had been referring to DMV contacts to learn whether appellant was in fact the registered owner of a large, black SUV.

Appellant argues the error in mentioning prior contacts was incurably prejudicial and thus the court erred in denying his motion for mistrial. Appellant claims he was deprived of a fair trial because the detectives testimony in essence told the jury he had prior convictions/arrests, or had been under investigation for other criminal offenses in Burbank, the very location of the charged crime. He points out character or propensity evidence is so persuasive and damaging it is improbable the jurors could disregard the information once having heard appellant had prior contacts with the police department.[10] It is precisely because character evidence has such compelling force, appellant argues, character or bad act evidence may not be admitted if its relevance is only to prove the defendants bad character and propensity to commit crimes.[11]

On appeal, we review a ruling on a motion for mistrial for an abuse of discretion, and such a motion should be granted only when a partys chances of receiving a fair trial have been irreparably damaged.[12] An appellate court uses the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.[13]

Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witnesss volunteered statement can also provide the basis for a finding of incurable prejudice. (See People v. Rhinehart (1973) 9 Cal.3d 139, 152 [witnesss inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial].)[14] For example, the court in People v. Allen[15]found incurable prejudice when a witness unexpectedly testified the defendants sister told her the defendant was on parole and he couldnt stand another beef. In Allen, the court found the evidence extremely close, with the question of guilt resting entirely on the defendants credibility. In these circumstances, the Allen court found it reasonably probable a result more favorable to the defendant would have been reached had the prejudicial information of his parole status not been divulged to the jury.[16]

By contrast, when the evidence of guilt is strong and the allegedly prejudicial volunteered testimony is brief, ambiguous or insignificant, a trial court may properly conclude no incurable prejudice occurred requiring a mistrial. For example, in People v. Bolden,[17]a police officer volunteered he had located the defendant through the Department of Corrections parole office, although he had been admonished not to mention the parole office after he had provided the same testimony at the preliminary hearing.[18] The Supreme Court found the trial court had not abused its discretion in denying the defendants motion for mistrial. The court noted the incident was insignificant in the context of the entire guilt trial. The court also found it doubtful that any reasonable juror would infer from the fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction.[19]

Similarly, in the case at bar, the trial court did not abuse its discretion in concluding no irreparable damage occurred, and in denying appellants motion for mistrial. The officer provided an innocuous explanation for what he meant when he testified to prior contacts. Detective Dyrness clarified for the jury the contacts he referred to were DMV contacts. He testified he checked DMV records to see if appellant had a car registered in his name to determine whether appellant in fact owned a large, black SUV. From the DMV records Detective Dyrness learned appellant owned a 1999 Lincoln Navigator whose co-owner was his sister-in-law Margaret Hull. Once the detective clarified what he meant by the phrase prior contacts it is doubtful any reasonable juror would have nevertheless assumed this instead meant appellant had prior felony convictions, or had been previously investigated for criminal activity. This is especially true because the reference to prior contacts with the police department was not permitted to linger through the trial, but was immediately cured by the detectives explanation it was the method he used to check vehicle registration in appellants name. Moreover, no other evidence remotely suggested appellant had prior arrests, convictions or was on probation or parole.

Also, and unlike the situation in Allen, this was not a close case. The only contested issue was identity. Kryvko was a particularly powerful eyewitness. She had seen appellant so many times she was positive in her identification of him as the would-be robber. From her first description of him in her 911 call, to her testimony at trial, Kryvko consistently stated she knew the suspect because he was a regular customer at the mini-mart who purchased Marlboro Light cigarettes from her on average two to three times a week. When she saw the six-pack photographic line-up Kryvko immediately selected appellants photo as the would-be robber. She described his vehicle as best she could as a big, black SUV and in fact appellant owned a black 1999 Lincoln Navigator. Moreover, the court, when acting as the 13th juror, found appellants alibi witnesses totally lacking in credibility. For this, and other reasons, the court denied his motion for new trial based on the alleged insufficiency of the evidence.

On this record, and given the strength of the prosecution evidence and weakness of the defense evidence, there is no reasonable probability of a more favorable outcome had the detective not volunteered he had checked appellants prior police contacts.[20] Accordingly, even if it was error to deny appellants motion for mistrial, it was surely harmless.

II. THE COURT ERRED IN ORDERING REIMBURSEMENT OF ATTORNEY FEES AND COSTS WITHOUT COMPLYING WITH THE PROCEDURAL SAFEGUARDS OF SECTION 987.8.

At the sentencing hearing the court imposed a sentence of 10 years in state prison. The court also imposed various fines and made other orders. The court also directed, the defendant shall pay attorneys costs in the amount of $6,856.45 plus $734.36 for any investigative costs. Defense counsel objected on the ground appellant was indigent. The court commented, [h]is ability to pay will be something taken into consideration. For all Public Defender cases, based on the complexity of the case and at which stage it was resolved, the court has imposed those fees. Obviously, they are subject to ability to pay by the defendant.

Appellant argues the courts order directing him to pay $6,856.45 in attorney fees and $734.36 in investigative costs should be vacated because it was not imposed consistent with the due process requirements of section 987.8. Contrary to the statutory directive, he notes, the court imposed the order without any prior notice he may be responsible to pay attorney fees, without a hearing, without findings on his current ability to pay any amount in fees, and without any evidence presented on the actual costs of his legal representation.

The People agree the courts order imposed without notice, a hearing or an affirmative showing of appellants ability to pay, was erroneous. They further agree the order should be vacated and the cause remanded for a properly noticed hearing consistent with the requirements of section 987.8.

[P]roceedings to assess attorneys fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing.[21] In California, the statutory procedure for determining a criminal defendants ability to reimburse the county for the services of court-appointed counsel is set forth in section 987.8.[22] Under the statute, a court may order a defendant, who has the ability to pay, to reimburse the county for the costs of legal representation. However, the defendant must be given notice and be afforded specific procedural rights, including the right to a hearing, to present witnesses at the hearing and to confront and cross-examine adverse witnesses.[23]

Moreover, a criminal defendant must be informed of his potential obligation to reimburse the county for costs of legal representation before counsel is even appointed.[24] At the conclusion of the trial the court may, after notice and a hearing, make a determination of the defendants ability to pay all or a portion of the actual costs of his legal representation.[25] The court may also hold a second hearing within six months of the conclusion of the criminal proceedings to determine whether changed circumstances have affected a defendants ability to reimburse the cost of the legal assistance provided.[26]

Under the statutory scheme there is a presumption a defendant sentenced to prison does not have the ability to reimburse defense costs. However, this presumption may be overcome by proof of unusual circumstances.[27]

The record in the present case contains no evidence of notice, of a hearing, of the actual costs of appellants defense or of any consideration of appellants ability to pay any amount toward the costs of his legal representation.

There is similarly nothing in the report prepared by the probation officer to indicate appellant was forewarned, or aware of, the possibility he may be ordered to reimburse the costs of his legal representation.[28] Also, because appellant was sentenced to 10 years in state prison, there is a statutory presumption he will not have a reasonably discernible financial ability to reimburse the costs of his defense.[29] As noted, there is no evidence in the record of appellants present ability to pay, let alone of unusual circumstances to overcome the presumption of his inability to pay.

The record shows the court did not conduct an on-the-record hearing to determine appellants ability to pay. Nor is there any evidence whatever to substantiate the amount imposed was in fact the cost of his legal representation. In short, there is nothing in the record to show any attempt to comply with any of the requirements of section 987.8. Accordingly, the order must be vacated and the cause remanded for further proceedings consistent with section 987.8.

DISPOSITION

The order requiring appellant to pay attorney fees in the amount of $6,856.45 pursuant to section 987.8 and investigative costs of $734.36 is vacated and the cause is remanded to the trial court for further consideration consistent with the requirements of section 987.8. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Penal Code sections 664/211. All further statutory references are to the Penal Code unless otherwise indicated.

[2] Section 12022, subdivision (b)(1).

[3] Although Kryvko had obvious difficulty with the English language she nevertheless began her testimony in English. Kryvko soon requested the assistance of a Russian interpreter.

Kryvko later explained she had recently emigrated from the Ukraine and had been granted political asylum. Kryvko testified she had a valid social security number and drivers license, and had all her immigration papers in order. Kryvko explained she did not need a green card because she had been granted political asylum.

[4] Sections 664/211.

[5] Section 12022, subdivision (b)(1).

[6] Section 12022.1.

[7] Section 667.5, subdivision (a), section 667, subdivisions (a)(1) and (b) through (i) and 1170.12, subdivisions (a) through (d).

[8] Health and Safety Code section 11377, subdivision (a).

[9]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[10] Citing People v. Erving (1998) 63 Cal.App.4th 652, 663 [profile evidence is inadmissible because every defendant has the right to be tried based on evidence tying him to the specific crime charged, and not on general facts accumulated by law enforcement regarding a particular criminal profile.].

[11] Evidence Code section 1101, subdivision (a) [with certain exceptions, evidence of character is not admissible when offered to prove a persons conduct on a specified occasion]; People v. Hayes (1990) 52 Cal.3d 577, 616-617 [same].

[12]People v. Ayala (2000) 23 Cal.4th 225, 283.

[13]People v. Bolden (2002) 29 Cal.4th 515, 555, citing People v. Ayala, supra, 23 Cal.4th 225, 282.

[14]People v. Wharton (1991) 53 Cal.3d 522, 565 [witness complained of having been beat up after testifying and blurted out the defendant had put the word out; witnesss volunteered statement did not result in prejudicial error where trial court admonished the jury to disregard the statement and where the witness later explained his assailant was someone other than the defendant].

[15]People v. Allen (1978) 77 Cal.App.3d 924, 935.

[16]People v. Allen, supra, 77 Cal.App.3d 924, 935; see also, People v. Ozuna (1963) 213 Cal.App.2d 338, 342 [the witnesss volunteered statement the defendant was an ex-convict resulted in reversible error]; People v. Figuieredo (1955) 130 Cal.App.2d 498, 505-506 [a witnesss statement the defendant had done time in San Quentin resulted in reversible error].

[17]People v. Bolden, supra, 29 Cal.4th 515.

[18]People v. Bolden, supra, 29 Cal.4th 515, 554-555.

[19]People v. Bolden, supra, 29 Cal.4th 515, 555; see also, People v. Valdez (2004) 32 Cal.4th 73, 128 [police officers reference to the Chino Institute did not result in incurable prejudice; the comment was brief and isolated and thus the trial court properly denied the defendants motion for mistrial]; People v. Ayala, supra, 23 Cal.4th 225, 285 [witnesss volunteered remark he had heard a lot about the defendant in prison was too ambiguous to suggest the defendant, rather than the witness, had served time in prison and thus the court properly denied the defendants motion for mistrial based on the allegedly prejudicial comment].

[20]People v. Watson (1956) 46 Cal.2d 818, 836.

[21]People v. Poindexter (1989) 210 Cal.App.3d 803, 809, citing People v. Amor (1974) 12 Cal.3d 20, 29-30.

[22] Section 987.8 subdivision (b) provides: 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, or upon the withdrawal of the public defender or appointed private counsel, 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 court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided. (Italics added.)

[23] Section 987.8, subdivision (e) provides in pertinent part: At a hearing, the defendant shall be entitled to, but shall not be limited to, all of the following rights:

(1) The right to be heard in person.

(2) The right to present witnesses and other documentary evidence.

(3) The right to confront and cross-examine adverse witnesses.

(4) The right to have the evidence against him or her disclosed to him or her.

(5) The right to a written statement of the findings of the court. (See also, People v. Amor, supra, 12 Cal.3d 20, 30 [the due process requirements of notice and a hearing are part of the statute, as are the rights to discovery, confrontation, cross-examination and other procedural devices].

[24] Section 987.8, subdivision (f) specifies: Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost. . . . (Italics added.)

[25] Section 987.8, subdivision (b); People v. Poindexter, supra, 210 Cal.App.3d 803, 811 [The court must review evidence of the actual costs to the county before it can assess costs or attorneys fees to the defendant. (Citation.)]; People v. Cruz (1989) 209 Cal.App.3d 560, 566 [the word cost as used in section 987.8 means the cost of the legal services provided to a criminal defendant as represented by a pro rata share of the public defenders budget. In addition, cost includes any proven expenses to the county established by the evidence, such as investigators fees and expenses, expert witness fees or expenses, long distance telephone expenses, etc.]; People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [The order here is entirely unsupported by evidence that the amount requested by the public defender, and allowed without opposition, represents the actual costs to the county of the services provided to defendant.].

[26] Section 987.8, subdivision (b); see People v. Flores (2003) 30 Cal.4th 1059, 1066 [The provision for holding a second hearing, six months after the conclusion of criminal proceedings, was intended to permit the trial court to take such changed circumstances into consideration.].

[27] Section 987.8, subdivision (g)(2)(B) provides when determining a defendants ability to pay the court should consider [t]he defendants reasonably discernible future financial position. In 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 future financial position. 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. Italics added.

[28] Compare People v. Phillips (1994) 25 Cal.App.4th 62, 74-75 [the probation officers report included attorney fees in its recommendation for issues to be considered at the sentencing hearing, thus placing the defendant on notice he may be assessed the cost of his legal representation].

[29] Section 987.8, subdivision (g)(2)(B).