Filed 6/28/17 P. v. Badu CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

MEARL KOFI BADU,

Defendant and Appellant.
D070654



(Super. Ct. No. SCD264750)

APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Brendon W. Marshall, Deputy Attorney General, for Plaintiff and Respondent.
A jury convicted Mearl Kofi Badu of pimping (Pen. Code, § 266h, subd. (a)) and pandering by encouraging (§ 266i, subd. (a)(2)). The trial court also found true a prior conviction that qualified as a strike under sections 667, subdivisions (b) through (i) and 1170.12. The court granted Badu's request to strike his prior strike, then sentenced him to four years in prison for pimping and stayed the sentence imposed on the pandering charge under section 654. Badu appealed the judgment, and appointed appellate counsel filed a brief setting forth the evidence in the trial court, presenting no argument for reversal and asking this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.
Appellate counsel also identified several possible issues under Anders v. California (1967) 386 U.S. 738: (1) Whether the trial court erred in denying Badu's motion to suppress evidence obtained without a warrant; (2) whether the court erred in denying motions for mistrial and a new trial based on testimony that violated an in limine ruling; (3) whether the court erred in admitting text messages from Badu on a witness's cell phone; (4) whether the court erred in admitting testimonial statements in violation of the confrontation clause; (5) whether the court erred in admitting transcripts of a phone call made by Badu while in jail; (6) whether the cumulative effect of these evidentiary errors requires reversal; and (7) whether there was sufficient evidence to show Badu was the perpetrator of the offenses. We provided Badu the opportunity to file his own brief but he did not respond.
After reviewing the entire record, we requested additional briefing on the issue of whether the trial court prejudicially erred in admitting testimonial statements made by a witness to a detective. In response, the Attorney General concedes the admission of the testimony was error, but asserts the error was harmless beyond a reasonable doubt. Badu's counsel did not provide further briefing. We agree the error was harmless and affirm the judgment.
BACKGROUND
In September 2014, detectives in the San Diego Police Department's vice unit were operating a prostitution sting. As part of the operation, detective Gerardo Serrano called a telephone number he found on a well-known escort website and arranged to meet a woman who identified herself as Ashia at a hotel. Serrano and Ashia, later identified as Marie W., met at the hotel room and agreed on terms of the prostitution transaction. When Marie took money from Serrano, he gave a prearranged signal and four additional police officers, including Detective Andrea Taylor, entered the room. The officers arrested Marie, who agreed to let Taylor look at her cell phone. Taylor found messages to a contact called "Most," in which Marie referred to the contact as "Daddi," a common term for a pimp. Other messages from Marie to Most asked him to "post her up," parlance for advertise her online. Taylor also saw messages from Marie to Most asking if she could go to sleep because she had made a certain amount of money.
Marie told Taylor that she was part of Most's team and that she gave him the money she received from prostitution. Taylor sent Most a text message from Marie's phone telling him she had a large amount of money and asking him if he could come to the hotel to collect it. Most responded that he would come to get the money right away. About a half-hour later, a black Cadillac arrived and a man, later identified as Badu, knocked on the door to the hotel room. The police officers opened the door and ordered Badu to the ground. Badu ran and was not apprehended. The Cadillac that was left behind in the hotel parking lot was registered to Badu, who the officers identified by the picture of him on file with the DMV.
Soon after Badu fled, another woman, Tanisha S., arrived at the hotel. The officers arrested Tanisha and took her cellphone and a key she had for another room in the hotel. In that room, officers found a planner that listed Badu as Tanisha's husband and emergency contact. The phone number written in the planner for Badu was the same number as the number for Most in Marie's phone. Tanisha's cell phone also contained a picture of her groin that had the word Most tattooed on it. The officers also searched Badu's abandoned Cadillac, which contained multiple keys to different rooms in the hotel, an iPhone, a Samsung tablet, and other electronics. Messages to Badu's iPhone from Marie, Tanisha and others indicated when men were arriving and leaving from the hotel, and asked permission from Badu to go to sleep after a certain amount of money was earned. The tablet's internet history showed numerous searches on prostitution websites. DNA taken from the steering wheel of the Cadillac matched Badu's known profile.
On January 15, 2016, Badu was arrested driving the same Cadillac. While in jail, Badu made a call to a woman and an unidentified man in which he instructed the man to erase the contents of his cell phones.
The district attorney charged Badu with pimping and pandering by encouraging, and alleged a prior strike conviction. After trial, the jury found Badu guilty of both charges and the trial court made a true finding on the prior strike allegation. At sentencing, the court granted Badu's request under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike his prior conviction. The court imposed a prison sentence of four years for the pimping conviction and stayed the lesser sentence it imposed on the pandering conviction under section 654.
DISCUSSION
As discussed, after Badu's appellate counsel filed an opening brief indicating she had not discovered any arguable issues for appeal, we asked for additional briefing on the issue of whether the trial court prejudicially erred by allowing Detective Taylor to testify to hearsay statements made by Marie to Taylor after Taylor arrested Marie. In response to our request, the Attorney General concedes that allowing this testimony was error under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and Crawford v. Washington (2004) 541 U.S. 36. The Attorney General asserts, however, that the error was harmless given the overwhelming amount of other evidence that supported Badu's conviction.
At trial, the admissibility of Marie's statements was raised initially on cross-examination. When Badu's attorney asked Taylor whether Marie had "told [her] she had no pimp," the prosecutor objected on hearsay grounds. After an unrecorded sidebar with counsel, the court admonished the jury: "Detective Taylor is talking to you in some respects about her opinion as a detective as a law enforcement expert of sorts, so she's entitled to rely on hearsay in order to formulate her opinion, and the attorneys are allowed to ask her about in terms of forming her opinion what did she rely on and that could include hearsay. [¶] To the extent that she's relying on the statements just in terms of her opinion, to form her opinion, the statements as she repeats them are not admitted for their truth, but just so we can understand how the detective got where she got . . . . They are not admitted for their truth."
Taylor then testified that one of the things she relied on to form her opinion that Marie was being pimped by Badu was Marie's statements to her. During redirect examination, the prosecutor asked Taylor "Did Marie, in fact, tell you that she gives the money that she makes from prostituting to [Badu]?" Defense counsel objected on hearsay grounds. The court overruled the objection, but reminded the jury that it could not rely on the answer for its truth. Taylor then testified: (1) that Marie told Taylor that she gave money she earned from prostitution to Badu; and (2) that Marie told Taylor she had asked to join Most's team.
A
Sanchez, supra, 63 Cal.4th 656 provides a framework for analyzing the admissibility of expert testimony alleged to be inadmissible hearsay. "While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude." (Sanchez, at p. 675.) In Sanchez, the Supreme Court noted that historically, "an expert's testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds." (Id. at p. 676.) "By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." (Ibid.) Sanchez recognized the line between these two categories had become blurred and held firmly that "[w]hen an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Sanchez, at p. 682.)
Thus, "[l]ike any other hearsay evidence, [such statements] must be properly admitted through an applicable hearsay exception." (Sanchez, supra, 63 Cal.4th at p. 684.) "An expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so." (Id. at p. 685) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) If the out-of-court statement is testimonial and offered against the defendant in a criminal prosecution, Crawford v. Washington, supra, 541 U.S. 36 and its progeny govern its admissibility. (Sanchez, at p. 686.)
Specifically, the confrontation clause bars the use of out of court testimonial statements offered to prove the truth of the matter asserted unless there has been a showing of unavailability and the defendant had a prior opportunity for cross-examination. (Crawford v. Washington, supra, 541 U.S. at pp. 62, 68.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Sanchez, supra, 63 Cal.4th at p. 689.) "Violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show 'beyond a reasonable doubt' that the error was harmless." (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
B
We agree with the parties that the trial court erred in allowing Taylor to testify to hearsay statements by Marie. Because the statements were related to the jury as case specific facts, it could not "logically be asserted that the hearsay content [was] not offered for its truth." (Sanchez, supra, 63 Cal.4th at p. 682.) Further, the statements were testimonial. Marie was in custody at the time she was questioned by Taylor and the primary purpose of Taylor's questions was to obtain information about Badu's criminal activity. (See People v. Gutierrez (2009) 45 Cal.4th 789, 812-813 ["the confrontation clause addressed the specific concern of '[a]n accuser who makes a formal statement to government officers' because that person 'bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' "].) Finally, Badu was never provided with an opportunity to cross-examine Marie.
We agree with the Attorney General, however, that Badu's conviction should not be overturned on this ground. Overwhelming evidence supported the jury's determination that Badu had engaged in pimping and pandering in violation of sections 266h and 266i, subdivision (a)(2). There was extensive, uncontradicted testimony that Badu was the individual that came to the hotel to collect money from Marie in response to the text messages from her phone. Additionally, other text messages recovered from various cell phones connected to Badu and data from his other electronics showed he was Marie's and Tanisha's pimp. Finally, Badu's instruction to another person after he was taken into custody to wipe the data from his electronics was evidence of his guilt. We conclude that the exclusion of Taylor's statements concerning what Marie told her would not have affected the outcome of Badu's trial beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.



O'ROURKE, J.

WE CONCUR:




MCCONNELL, P. J.




HALLER, J.