Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA105990 Richard R. Ocampo, Judge.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant Roosevelt Kahn.
Julie Sullwold-Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant Derek Kelley.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven M. Mercer and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Defendants Derek Kelley and Roosevelt Kahn appeal from their convictions of possession of a firearm by a felon and the finding that the crimes were committed for the benefit of a criminal street gang. Both contend: (1) the trial court applied the incorrect standard to a Wheeler motion; (2) the verdict was tainted by a police officer’s perjured testimony; and (3) the trial court erred in denying a hearing on a midtrial Penal Code section 1538.5 motion. Kelley also makes the following contentions, in which Kahn joins: (1) Kelley was denied due process by the denial of a hearing on the midtrial section 1538.5 motion; (2) it was error to deny Kelley’s motion for new trial; and (3) the order assessing attorney fees was not supported by substantial evidence. We affirm.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
All future undesignated statutory references are to the Penal Code.
PROCEDURAL BACKGROUND
Kelley and Kahn were jointly charged in a second amended information with possession of a firearm by a felon (§ 12021, subd. (a)(1)), and committing the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)); in addition, a “Three Strikes” law enhancement was alleged as to Kahn (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)); and an enhancement for committing the primary offense while released on bail was alleged as to Kelley (§ 12022.1). A jury convicted both defendants and found true the enhancements.
Defendants were jointly charged and tried with a third codefendant, Marcus Stewart. A mistrial was declared as to Stewart after the jury was unable to reach a unanimous verdict as to him.
Kelley was sentenced to seven years in prison, comprised of the two-year midterm for the gun possession, plus a consecutive three years for the gang enhancement, plus a consecutive two years for the on-bail enhancement. After his three strikes enhancement was stricken, Kahn was sentenced to six years in prison, three years each for the gun possession charge and the gang enhancement.
Kelley and Kahn timely appealed.
FACTS
A. The People’s Case
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that in October 2008, Officer Warner Carias was assigned to the Los Angeles Police Department’s South East Division Gang Enforcement Detail. In that capacity, he was primarily responsible for investigations involving the criminal street gangs known as the Denver Lanes Bloods and the Athens Park Bloods, among others. On October 9, 2008, Carias received three calls on his personal cell phone from a concerned citizen complaining about a loud party at a four-unit apartment building; in one call, the citizen mentioned that gang members were in attendance; in another call, the citizen mentioned guns. Carias knew the building identified by the caller was associated with the Denver Lanes Bloods and he believed the party might be a celebration of the Denver Lanes Bloods’ birthday, known as a “Hood Day” party. In response to this citizen’s complaints, Carias arranged for a detail of nine gang enforcement officers and several supervisors to meet a few blocks from the party to discuss a tactical plan for entering the location.
Gangs celebrate “Hood Day” on a date that corresponds with a street in the area claimed by the gang. In this case, 109th Street was in the area claimed by the Denver Lanes Bloods and they celebrated Hood Day on October 9.
The tactical meeting lasted just a few minutes and the officers arrived at the building shortly after 10:00 p.m. While some officers monitored the rear of the property, other officers simultaneously pulled up in front of the apartment building, including partners Justin Kravetz and Mario Jacinto in one police vehicle and Carias and his partner, Lozano, in another police vehicle. Carias, Kravetz and Jacinto saw between 10 and 15 people standing in small groups inside of a fenced area in front of the apartment building; these people were all wearing something red, some were drinking alcohol in public and others were smoking marijuana cigarettes; the scent of marijuana was in the air.
A woman tried to prevent the officers from coming through a gate in the fence and sounded a warning that the police had arrived, but Jacinto pushed his way through the gate. In accordance with the tactical plan, Jacinto and Kravetz immediately started running up the walkway toward the building, while Carias broke to the west and started running up a driveway. Jacinto heard codefendant Kelley say to codefendant Kahn, “Break, Blood, Crash, ” and then saw defendants start running; defendants were the only people congregated in front of the building who Kravetz and Jacinto saw run away. Kravetz and Jacinto gave chase. The fact that defendants were holding the front of their waistbands as they ran and were disregarding the officers’ commands to stop made Jacinto believe they were trying to conceal something.
Kravetz and Jacinto chased defendants down the side of the building to the backyard where 30 or so people were congregated, drinking and socializing. Those people either stood still or made way for the runners to get through the crowd. Jacinto and Kravetz each lost sight of both defendants for a moment as they rounded the corner of the building. As he came around the same corner, Jacinto drew his weapon. Once around the corner, both Jacinto and Kravetz saw that Kahn was now holding a revolver; Kravetz also saw that Kelley was now holding a semiautomatic firearm. Both officers saw defendants run toward three garages; of these three garages, only the one on the right was open. Disregarding the officers’ orders to stop, defendants ran into the open garage. Kravetz saw Kahn and Kelley inside the garage throw the guns they were holding through a hole in the wall, into the closed garage next door. Jacinto did not specifically see either defendant throw a gun, but he saw Kahn inside the garage make a tossing motion and then heard a metal ping coming from the garage; when Kahn came out of the garage a few seconds later, he was not holding the gun that Jacinto saw him holding a few moments before.
After tossing the guns, defendants complied with orders to come out of the garage and stand against a wall along with other partygoers being detained by the police. While other officers watched the detainees, Jacinto and Kravetz entered the open garage and went through the hole in the wall to the closed garage next door. In the closed garage, Kravetz found the guns he saw Kahn and Kelley toss; both guns were loaded. For reasons of officer safety (the officers were far outnumbered by the partygoers), Jacinto and Kravetz made the decision not to take the steps necessary to preserve the gun for fingerprint analysis.
Defendants were transported to the police station. In the prebooking area at the station, Kahn was seated on a bench next to people who are unrelated to this case. Standing nearby, Kravetz overheard one of those people ask Kahn why he was arrested; Kahn responded, “For the gun that I threw.”
The person who asked Kahn the question was Kelley, not a person unrelated to the case. But the testimony was ordered sanitized in response to Kelley’s objection to being tied to the statement. Kelley’s counsel objected that the prosecutor violated the order by eliciting Kravetz’s testimony that Kelley and Kahn were both transported to the police station and booked there. The trial court did not agree, but instructed the jury to ignore the question and answer relating to Kelley.
B. Gang Evidence
Gang expert Kerry Tripp testified that a criminal street gang is defined in the Penal Code as “three or more people who have a common sign, name or symbol to commit certain crimes....” Respect is very important in gang culture and it is gained by committing crimes. Guns are important in gang culture because they facilitate the commission of crimes. Not every gang member has a gun; gang members lend or rent guns to other gang members. There is also what is known as a “hood gun, ” which is a gun left in a location accessible to others gang members.
Carias, also a gang expert, explained that gangs are hierarchal and members gain status in the gang by length of membership and by committing crimes; the more serious the crime the more respect it gains for the perpetrator from other gang members; more respect leads to increased stature in the gang. Gangs also use crimes to intimidate and instill fear into people in the community as well as rival gang members. This benefits the gang because people are reluctant to report crimes committed by gang members for fear of retaliation from the gang. Possession of a gun earns respect from other gang members and benefits the gang because the gun can be used to facilitate crimes, to intimidate the community and to protect the gang from rival gangs. These generalities applied specifically to the Denver Lanes Bloods and the Athens Park Bloods, which Carias testified were criminal street gangs. The primary activities of the Denver Lanes Bloods and the Athens Park Bloods are the commission of crimes including murder, attempted murder, robbery, vandalism, carjackings, narcotics possession and sales, and gun possession, among others.
In Carias’s opinion, Kelley was a member of the Denver Lane Bloods based on Kelley’s self-admission to police on multiple occasions, his gang tattoos, his presence at the Hood Party on October 9 wearing red and Kelley’s statement to Kahn, “Break, Blood, Crash;” Kelley was known by the moniker “D.” And it was Carias’s opinion that Kahn was a member of the Athens Park Bloods based on Kahn’s admission, his gang tattoos, his presence at the party wearing red and the fact that Kelley addressed Kahn as a fellow gang member; Kahn was known by the moniker “Big Rel.”
In a hypothetical based on the facts of this case, Carias was of the opinion that the defendants possessed the guns for the benefit of their gangs.
C. Defense Case
T.B. and K.S. were at the party that night. T.B. left early and did not see anything relevant. K.S. testified that Kelley did not run when the police arrived. A fingerprint expert was unable to lift any prints from the revolver. A forensic scientist did not find Kelley’s DNA on the guns recovered by police that day. The LAPD did not receive any 911 call on October 9, 2008, complaining about a party at the apartment building.
DISCUSSION
A. The Trial Court Used the Correct Standard to Decide the Wheeler Motions
Defendants contend the prosecutor improperly used peremptory challenges to exclude jurors on the basis of their race in violation of Batson v. Kentucky (1986) 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258. They argue that the prosecutor’s stated reasons for excusing the jurors who are the subjects of defendants’ five Wheeler motions were implausible and insincere. They also contend that the standard utilized by the trial court – the prosecutor’s “reasons that were not unlawful” – was incorrect and did not consider the totality of the circumstances. We disagree.
A prosecutor’s use of peremptory challenges on the basis of group bias violates a criminal defendant’s right to be tried by a representative cross-section of the community and the defendant’s equal protection rights. (People v. Zambrano (2007) 41 Cal.4th 1082, 1104, disapproved on another point in People v Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The three-step approach to responding to a Wheeler motion is well known. “ ‘ “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” ’ [Citation.] [¶] ‘We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish “bona fide reasons from sham excuses.” [Citation.] As long as the court makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered its conclusions are entitled to deference on appeal.” ’ [Citation.]” (Zambrano, at p. 1104.)
Here, defendants made the following Wheeler motions:
The First Wheeler Motion
Kelley made a Wheeler motion after the prosecutor used peremptory challenges against Juror Nos. 6540 (an African-American male), 0147 (an African-American female) and 0409 (a Latina). The prosecutor explained that he dismissed one of the jurors because that juror seemed pleased that the charges had been dropped in another case in which he served as a juror; he dismissed another juror because her occupation as a counselor suggested she may be too liberal and because she was rolling her eyes at the responses of the other potential jurors; and he dismissed the third juror because she seemed too liberal. The trial court denied the Wheeler motion because the prosecutor had articulated “reasonable and solid reasons for using his premptories [sic], that’s perfectly acceptable. He does not have to have a reason or articulate a reason he just has to establish that it’s lawful, and I think he has done that.”
The Second Wheeler Motion
Kelley renewed his Wheeler motion after the prosecutor excused another juror. The prosecutor explained that he excused this juror because she indicated that she would be unlikely to convict in the absence of scientific evidence, such as fingerprints or DNA, which the prosecutor knew would not be introduced in this case. The trial court denied the Wheeler motion on the grounds that the prosecutor’s reasons were not unlawful.
The Third Wheeler Motion
Kelley renewed his Wheeler motion again after the prosecution excused another African-American juror. The prosecutor explained that he excused this juror because she had passed several notes to the judge about not being able to be in court the next day. The trial court acknowledged that the juror had made two requests to be excused the next day. It found that to be a “sufficient” reason for excusing the juror.
The Fourth Wheeler Motion
Kelley once again renewed his Wheeler motion after the prosecution excused Juror Nos. 0818 and 3368. The trial court did not agree that Juror No. 0818 was Latino. The prosecutor explained that he dismissed Juror No. 3368 because he was young and inexperienced, and because he indicated an inability to disregard sentencing when determining guilt or innocence. The trial court denied the motion. In response to Kelley’s counsel’s complaint that the prosecutor had not explained why he had not challenged “Anglo” jurors whose answers were similar to the excused jurors, the trial court stated: “He’s made a proper explanation for the ones he’s excused. He does not have to explain about the ones he’s left on.”
The Fifth Wheeler Motion
Kelley renewed his Wheeler motion a final time after the prosecution excused an African-American female. The prosecutor explained that because of the juror’s job as a social worker, he believed she might be sympathetic to the defendants. The trial court denied the motion, observing: “The particular profession that she’s in, social services, lends itself to a liberal side, a liberal bent. And I think that the District Attorney can use that as a lawful reason. It’s not unlawful, and I think that’s persuasive.”
Analysis
In each case, the record demonstrates that the trial court made the requisite “sincere and reasoned effort to evaluate the nondiscriminatory justifications offered by the prosecutor.” (Zambrano, supra, 41 Cal.4th at p. 1104.) Substantial evidence supports the trial court’s finding that the prosecutor had race-neutral reasons for dismissing the jurors subject of the Wheeler motions. We are not persuaded otherwise by the fact that the trial court used the phrase “unlawful.” In context, the term “unlawful” was clearly intended to be synonymous with “discriminatory” and “lawful” was intended to be synonymous with “race-neutral” or “nondiscriminatory.” The trial court was not required to use any magic words.
B. Defendants Were Not Denied Due Process or a Fair Trial
Defendants contend they were denied due process and a fair trial because their convictions were based on perjured testimony. They argue that Kravetz, Jacinto and Carias must have testified falsely because their testimony was based upon a review of a police report which contained several false statements, most notably that the police received numerous calls from citizens complaining about a party, when in fact Carias admitted at trial that he received three calls on his personal cell phone from just one person. We find no error.
“ ‘Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 711 (Avila).) “Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citation.] This obligation applies to testimony whose false or misleading character would be evident in light of information known to the police involved in the criminal prosecution [citation], and applies even if the false or misleading testimony goes only to witness credibility [citations].” (People v. Morrison (2004) 34 Cal.4th 698, 716-717; see also § 1473, subd. (b)(1) [writ of habeas corpus may be prosecuted based upon a claim that “[f]alse evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration....”].) But it is not perjury unless the challenged testimony was actually false. (People v. Curl (2009) 46 Cal.4th 339, 354.) Inconsistency between a witness’s pretrial statements, including preliminary hearing testimony, and trial testimony “does not ineluctably demonstrate his trial testimony was false, or that the prosecutor knew it was false.” (Avila, at p. 712.) In any case, when a witness whose testimony is alleged to be false is subjected to cross-examination and impeachment, the defendant is not denied a fair trial or due process. (People v. Riel (2000) 22 Cal.4th 1153, 1180-1182.) In People v. Morales (2003) 112 Cal.App.4th 1176, 1193 (Morales), the court articulated the rule as follows: “presenting false evidence does not violate due process; the violation consists of failure to disclose whatever other evidence there may be that the evidence presented is false.”
Here, on direct examination, Carias testified that he organized the October 9, 2008 offensive on the Hood Day celebration after receiving several calls on his personal cell phone from a concerned citizen complaining of a loud party at an apartment building Carias knew was associated with the Denver Lanes Bloods. On cross-examination, Carias conceded that he did not mention in the police report he authored or in his prior testimony at the defendants’ preliminary hearings that he was acting on information that he personally received from a citizen. On the contrary, at the preliminary hearing Carias testified that he acted based on a “radio call” from the police dispatcher, which was generated by a call to 911. The first time Carias mentioned the calls to his cell phone was during the trial. Counsel for all three defendants spent substantial time questioning Carias about the discrepancy in his preliminary hearing testimony and his trial testimony concerning how he learned of the Hood Day party.
At the preliminary hearing, Carias testified he went to the location to investigate a report of a “415 gang party.” This was in response to a radio call from a police dispatcher which was in response to a citizen’s call to 911 complaining about a loud party; Carias did not personally “interview” the citizen. Carias was familiar with the location as a “known Denver Lane hangout.” We understand the reference to a “415 gang party” to be a reference to section 415, subdivision (2), disturbing the peace.
Out of the presence of the jury, counsel for codefendant Marcus Stewart (not a party to this appeal) moved to exclude all of Carias’s testimony on the grounds that Carias had committed perjury. The trial court denied the motion to exclude, observing that it was for the trier of fact to determine whether Carias was being truthful. Counsel for Kahn asked for a mistrial. The trial court denied the motion for mistrial.
Defendants have not shown that they were denied a fair trial or due process as a result of Carias’s testimony. First, defendants have not shown that their convictions were based on false evidence. The failure of the police report to specify whether the citizen complainant called Carias’s cell phone or 911 does not render the substance of the report false. Assuming that the police report did not accurately describe how Carias first learned of the party, it does not necessarily follow that the officers who used the police report to refresh their recollection of events testified falsely. The officers testified to their recollection of events. To the extent there was evidence that events were other than the officers recalled, defendants were free to show the inconsistencies. Moreover, it is not at all clear that Carias testified falsely at the trial. Under Avila, supra, 46 Cal.4th at page 712, the fact that Carias’s trial testimony was inconsistent with his preliminary hearing testimony does not ineluctably demonstrate that his trial testimony was false, or that the prosecutor knew that it was false. Any inconsistencies were for the jury, as the trier of fact, to sort it out.
Second, the defendants had ample opportunity to cross-examine and impeach the officers, including with Carias’s inconsistent preliminary hearing testimony. Under Morales, defendants were therefore not denied a fair trial or due process. Third, at most, the false testimony went to the circumstances of the probable cause to be at the party and to arrest defendants. That was not an issue for the jury to decide.
C. It Was Not Error to Deny a Midtrial Section 1538.5 Hearing
Defendants contend the trial court erred in denying a midtrial request for a section 1538.5 hearing. They argue that “[o]nce the defense learned that the police officers did not have any justification for making a warrantless entry into the gated apartment complex, co-defense counsel timely moved for a hearing... to suppress all the physical evidence seized during the police officer’s illegal search of the gated apartment complex.” We disagree.
Although Kelley adopts Kahn’s arguments in support of this contention without adding any argument of his own, Kelley separately contends that he was denied due process as a result of the denial of a hearing on the motion. We address that contention separately.
Pursuant to section 1538.5, subdivision (a)(1)(A), a criminal defendant may move to suppress evidence obtained as a result of a search on the grounds that a warrantless search was unreasonable. The motion “shall be in writing and accompanied by a memorandum of points and authorities and proof of service. The memorandum... shall set forth the factual basis and legal authorities that demonstrate why the motion should be granted.” (§ 1538.5, subd. (a)(2).) “The time limits for bringing a motion to suppress for a felony offense are found in... section 1538.5, subdivisions (h) and (i). Those sections provide, ‘(h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial. [¶] (i) [If the evidence sought to be suppressed] relates to a felony offense initiated by indictment, the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial and at least 10 court days after notice to the people, unless the people are willing to waive a portion of this time.’ [Citation.]” (People v. Frazier (2005) 128 Cal.App.4th 807, 828 [no justification for delay in bringing motion where facts of search are within defendant’s knowledge].) A section 1538.5 motion not brought within those time limits is properly denied. (Frazier, at p. 828.)
Here, Carias testified that a citizen called his personal cell phone to complain about the Hood Day party and that he did not, as he had testified at the preliminary hearing, learn of it from a radio dispatch relaying a 911 call. Counsel for Kelley then objected that, if the defense had known about the citizen caller, defendants could have made the appropriate pretrial section 1538.5 motions. After a recess, counsel for Kahn and Kelley requested that the trial court hear a section 1538.5 motion to suppress “all of the evidence in this case, ” based on the officers’ unlawful entry onto the property. The trial court denied the oral motion observing: “Whether the phone call was made directly to the officer or whether a phone call was made to the dispatcher, then given to the officer, or whether the officers got there on their own, for whatever reason they went there and heard the noise, saw the drinking, whatever they saw, it’s irrelevant for this purpose. And there is no grounds for a 1538.5 motion at this time.” We find no error in the ruling.
Defendants’ stated justification for bringing a midtrial section 1538.5 motion was the discovery that Carias heard about the Hood Day party from a citizen’s call to his personal cell phone and not from a radio dispatch as he had testified at the preliminary hearing. But defendants did not explain to the trial court, and they do not explain on appeal, why this constitutes newly discovered grounds under section 1538.5, subdivision (h). After all, regardless of how Carias learned of the Hood Day party, defendants have always known someone in the police department received a telephone call from a citizen, the officers went to the described location to investigate a loud party at a known gang hang out, and they entered the property without a warrant. Thus, the grounds for the motion – an unreasonable warrantless search – were known to the defendants prior to trial. Whether the investigation was motivated by a citizen’s call to 911 or to Carias’s personal cell phone is a difference without a distinction for purposes of bringing a section 1538.5 motion. Under these circumstances, the trial court did not err in denying the midtrial section 1538.5 motion.
D. Kelley Was Not Denied Due Process by the Denial of a Hearing on the Midtrial Section 1538.5 Motion
In addition to adopting Kahn’s argument that the trial court erred in not hearing the midtrial section 1538.5 motion, Kelley contends he was denied due process as a result of the trial court’s refusal to hear the motion. He argues that the section 1538.5 motion should have been granted because defendants had a right to discover the identity of Carias’s informant. We find no merit in the contention.
A section 1538.5 motion is not a discovery vehicle. To preserve as an appellate issue the failure to disclose the identity of the caller, defendants had to request disclosure of that identity. Otherwise, the defense forfeits the issue. (2 Witkin, Cal. Evidence (3d ed. 1986) Witnesses, § 318, pp. 599-600; In re Stier (2007) 152 Cal.App.4th 63, 75.)
Here, none of the defendants specifically asked the court to order the prosecutor or Carias to disclose the name of the informant. There was a general discussion with the court about how the defense could have brought an earlier motion to disclose Carias’s caller, but there was no request for disclosure during the trial. We also observe that the defense raised the informant issue as part of a general discussion of Carias’s testimony, and the court did state that the informant – be it a 911 or a cell phone caller – was not the issue. Arguably any further request for disclosure would have been futile. Without deciding the forfeiture issue, we address the merits. The evidence shows only that the calls triggered the investigation of a loud party at a location that was already known to the police as a gang hang out. There was no information about the identity of the individual partygoers or whether any particular person was armed. Upon arrival, the officers heard the loud music, saw the partygoers dressed in gang attire, smelled the marijuana and saw people smoking marijuana cigarettes. It was the officers’ observations that completed the probable cause to enter the premises, not merely the citizen’s calls to Carias’s cell phone. Under these circumstances, there was no obligation to disclose the identity of the caller.
E. Motion for New Trial
Kelley contends the trial court erred in denying his oral motion for new trial. He argues on appeal, as he did in the trial court, that Carias’s false testimony at the preliminary hearing prevented the defense from investigating the case and making a timely section 1538.5 motion. As we have already discussed, nothing prevented defendants from bringing a timely section 1538.5 motion; whether Carias went to the location because of a radio dispatch or because of a call to his cell phone from a citizen was irrelevant to any such motion.
Although Kahn purports to join in this contention, he made no such motion in the trial court. Accordingly, he has no standing to argue these grounds for appeal.
For the first time on appeal, Kelley further argues a new trial should be granted because the prosecutor violated the order to sanitize Kravetz’s testimony about what he heard Kahn say at the police station. (See fn. 5, ante.) And he argues, after the defense discovered that Carias had testified falsely, the trial court erred in denying Kelley’s request to now introduce the evidence that he had sought excluded – that it was Kelley who asked Kahn why he was arrested – because it showed that Kelley did not know why he and Kahn were at the police station. Although the prosecutor’s preliminary questions for no apparently legitimate reason linked Kelley and Kahn together at the police station, the trial court was in the best position to determine whether its sanitization order was violated. The trial court found that it was not. That Carias testified inconsistently at the preliminary hearing and at trial about how he knew of the Hood Day party had no relation to Kravetz’s testimony about what he overheard.
F. Attorney Fees
Defendants contend the court erred in awarding $8,674.06 in attorney fees for the cost of their appointed counsel. They argue inadequate notice of the attorney fee award, and there was insufficient evidence to support the award.
Respondent argues that these claims have been forfeited. We agree in part. As to the notice point, there was nothing to prevent or inhibit counsel from raising the notice issue with the trial court. Although there is some debate in the appellate courts on this issue (see People v. Viray (2005) 134 Cal.App.4th 1186, 1214, 1217; People v. Whisenand (1995) 37 Cal.App.4th 1383, 1395-1396), there is no suggestion that trial counsel might not have objected because of a perceived conflict between a criminal defendant and his attorney who would be paid in some fashion in any event. We conclude the notice point was forfeited.
As to substantial evidence, that issue is not waived by failing to object. The moving party is required to make the affirmative evidentiary showing and a failure may be raised on appeal without objection at trial. (See People v. Butler (2003) 31 Cal.4th 1119, 1126.) Here, the record reveals no evidence on the reasonableness of the amount of fees awarded either in terms of the attorney’s hourly rate or the number of hours expended. Nor does there appear to have been an inquiry into defendants’ ability to pay. The probation report does not address the issue head on, except to the extent it details meager income. No formal hearing on the subject was held (§ 987.8, subds. (b), (c)), nor did the trial court take into account the assumption set out in section 987.8, subdivision (g)(2)(B), that a defendant sentenced to state prison is not likely to have the ability to reimburse attorney fees.
Out of judicial economy we choose not to remand to the trial court for a hearing on attorney fees. The People have the opportunity by statute to ask the court to conduct an attorney fees hearing within “six months of the conclusion of the criminal proceedings” if they wish. (§ 987.8, subd. (b).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: FLIER, J.GRIMES, J.