Opinion
G052630
09-14-2017
THE PEOPLE, Plaintiff and Respondent, v. DEANTE MONTEZ DOWELL, Defendant and Appellant.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF1373) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer and John S. Adams, Judges. Affirmed as modified. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Deante Montez Dowell of pandering by procuring a person for prostitution (Pen. Code, § 266i, subd. (a)(1) [count 1]; all statutory citations are to the Penal Code), pimping (§ 266h, subd. (a) [count 2]), and misdemeanor attempted destruction or concealment of evidence (§§ 135, 664 [count 3]). Dowell contends the trial court erred by denying his motion to substitute appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), admitting a witness's preliminary hearing testimony, and admitting an expert's opinion that Dowell was acting as a pimp. For the reasons expressed below, we affirm as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
Twenty-four-year-old Amanda H. testified at Dowell's preliminary hearing under a grant of use immunity and her testimony was admitted at Dowell's trial. She testified she lived in Colorado for 21 years before she and Dowell together came to Orange County about a week before June 23, 2015. She and Dowell drove a red Camaro they purchased together around January 2015. On the way to California, they spent three days in Las Vegas.
Amanda had known Dowell for six years. They dated off and on and she described their current relationship as "best friends." She admitted working as a prostitute for a little over three years, but claimed Dowell only learned of her prostitution about a year before the preliminary hearing. Dowell often aided her endeavors over the course of the year by giving her a ride to meet her customers and picking up her afterward. Dowell would not be with her during her encounters, but they would text back and forth to each other.
The couple shared an apartment in Denver, Colorado. She paid the $1,400 monthly rent and utilities, using money she earned from prostitution. She and Dowell dated during the same time she engaged in prostitution, but were "best friends" when they arrived in California and were last "in a relationship" a few months earlier. They sometimes had sex with each other even though they were not in a dating relationship.
Amanda and Dowell were together "24-7" during the one-year period before her preliminary hearing testimony. Dowell did not work during this time. Amanda gave Dowell $275 a month to make the $530 monthly car payments with money she earned from prostitution. Amanda and Dowell split expenses dividing "everything [e.g., gas for the car] down the middle." She bought him food using her money, but he also shared on the expenses. She claimed she did not support him financially.
Amanda used hotel rooms to engage in prostitution, posted prostitution ads online, and negotiated pricing with clients over the phone.
Amanda and Dowell came to California looking for "new scenery." She gave Dowell money to pay for the Costa Mesa motel, but he paid for "gas and food and stuff" on the way to California. He also sold some personal items (a laptop, a tablet, a video game console) to finance their trip.
She posted a prostitution advertisement in Orange County. The ad said "no African Americans" because she did not want problems and hoped to avoid "people that are rough or pimps." She reserved the rooms when they were in Colorado and Las Vegas, but Dowell reserved the room at the Costa Mesa motel because she did not have identification.
Amanda denied having a pimp, but she had worked for a pimp, "Moshay," about a year earlier in Colorado for "about a weekend." She had no place to go and Moshay gave her a place to stay if she worked for him. She testified Dowell was not her pimp, he did not encourage her to engage in prostitution, and he "didn't want [her] to do it."
On the day of his arrest, Dowell told her "this day just felt off" and he "had a funny feeling." Amanda received three or four texts about doing some "work." She replied it would be "300 roses," but asked if the person was affiliated with law enforcement. She eventually provided the motel's address, and later the person phoned to say he was at the motel in a silver Pontiac. Amanda told Dowell to leave, but he returned to the room and warned her he saw "cars with a bunch of people [wearing sunglasses] scattered around the parking lot." Frightened they were the police, she took the batteries out of her cell phone, thinking the police might be tracking her or listening to her conversations. She waited until Dowell left the parking lot, and then walked to a neighborhood behind the motel where she had arranged to meet Dowell. She drove the car initially, and they switched drivers at a gas station. She did not recall Dowell mentioning that anyone was trying to steal their car.
Amanda admitted to a detective after her arrest she was a prostitute, and that Dowell was holding over $200 for her. She had given Dowell the money, which was in the car cup holder, at the gas station just before the arrest because she did not have pockets or a purse and did not want it flying out of the window. She had earned $280 working the day before, but asserted she never asked Dowell to "look out for" her while she worked at the motel.
At the time of their arrest, police officers found several cell phones in the Camaro. Amanda identified phones belonging to Dowell and her, which they used to text each other. She saved Dowell's contact information in her cell phones under the names Jupiter Jack or Jack Jupiter.
At trial, Huntington Beach Police Detective Thoby Archer and other officers testified concerning the investigation of Dowell and Amanda, and Archer also testified as an expert concerning prostitution and pimping. On or before June 23, 2015, Archer located Amanda's ad on a prostitution-linked Web site. On the afternoon of June 23, he texted the phone number, and arranged to meet her. Archer dispatched several undercover officers to the motel. When he arrived at the motel Archer phoned Amanda and described his vehicle. Dowell exited room 116, briefly walked around the parking lot looking into parked vehicles, entered a red Camaro and drove slowly through the parking lot and onto surrounding streets looking "in all directions," and into parked vehicles. Approximately an hour later, Amanda left room 116, walked to Dowell's location about a block or two from the motel, and they drove off, followed by undercover vehicles. Archer concluded the operation had been compromised when Dowell drove at least a hundred miles an hour on the freeway with the officers in pursuit.
After stopping the Camaro, an officer spotted Dowell taking apart a cell phone by removing the battery. Dowell had $275 in his pocket when he was arrested. Dowell initially denied to Archer he knew Amanda, then admitted they were friends, and stated they had been romantically involved for a couple of years. He explained he drove fast because he thought someone was trying to steal his car. He admitted he did not work and had no income, but claimed he had been sleeping with a woman whose husband had gone off to war, and the woman had given him $10,000. He claimed he was "working with an attorney," but could not relate the "last legal job he ever had."
Amanda told Archer she had been working as a prostitute for a long time, but claimed she worked independently, and Dowell was not her pimp. Amanda told Archer she and Dowell were best friends, dating occasionally, and she cared about him.
Archer obtained a warrant and searched the cell phones found in the Camaro and another belonging to Amanda. He downloaded text messages and photographs. Text messages between Dowell, listed as "Jupiter Jack" or "Jack Jupiter" on Amanda's phones, and Amanda from the day before Dowell's arrest, included discussions referencing Amanda's clients and instructions from Dowell. In one message chain, Dowell texted "Mexican and white boy white," Amanda replied, "Mex," and then "He[']s done." Dowell responded, "K" and "Let me kno when other inn." In another message chain, Amanda texted, "he said he only has 150," Dowell responded "?" and then "5 mins then stop him." Amanda then texted "Said they here," Dowell responded, "K," and Amanda replied "In 15." In another chain, Amanda texted "This is retarded," Dowell responded, "Lol just get it done women," Amanda replied, "Never again am I doing this," and Dowell responded, "Ok don't forget about pills ask." Archer recovered text messages from another phone belonging to Amanda covering the period May 21, 2015 to June 11, 2015, that supported the prosecution's claim Dowell was Amanda's pimp. Photographs in the cellphones depicted Dowell handling large sums of cash, sometimes placing it in his mouth.
Defense
Javier Godinez, an investigator with the Orange County District Attorney's office, testified concerning his attempts to contact and subpoena Amanda before trial. Calling a phone number given to him by the defense, Godinez spoke with Amanda on September 14, 2015. She stated she was in one of the Carolinas. She asserted Dowell had nothing to do with her prostitution, and she had testified truthfully at the preliminary hearing. Godinez searched the phone number he used to contact Amanda using Google, and learned it was linked to a prostitution-related Web site. Information in the listing suggested Amanda had been working in August and September 2015 in various locales, including New Mexico, Utah, Indiana, Tennessee, and Virginia.
Following trial in September 2015, a jury convicted Dowell as noted above. The court imposed a three-year low term for pandering, and stayed (§ 654) or suspended sentencing on the remaining convictions.
II
DISCUSSION
A. The Trial Court Did Not Err in Denying the Marsden Motion
On August 27, 2015, a few weeks before trial, the court conducted a hearing to entertain Dowell's complaints about his appointed lawyer. (See Marsden, supra, 2 Cal.3d 118). Among other grievances, Dowell complained the deputy public defender had failed to interview Amanda "the young lady in question that was given immunity." He noted "it would be appropriate to talk to her because the simple fact of the matter she never once got up there and implicated me in any wrongdoing in the case," and in fact "said that she acted alone in what she did . . . ." Dowell asserted defense counsel wanted him to "get on the stand and lie and say that [he] knew what [Amanda] was doing because" they were friends and it would "look better . . . ." Dowell complained that counsel was asking him "to implicate myself in something that I have no recollection of."
Dowell's lawyer responded that the court had appointed the alternate defender's office (Brian Martin) to represent Amanda before the preliminary hearing in conjunction with the prosecution's petition to grant Amanda use immunity and to compel her testimony. After the preliminary hearing, Amanda had called Dowell's lawyer and left messages asking to speak with him. He contacted Amanda's attorney and asked if he could speak to her, but her lawyer refused his request. Dowell's attorney wanted to speak to Amanda, but his supervisors, who consulted the State Bar ethics line, told him he could not talk to her.
The court denied the request to substitute counsel. Responding to Dowell's complaint about trial counsel's failure to interview Amanda, the court explained counsel was "stuck legally" because she was represented by a lawyer who wanted to "protect her interest and doesn't want her giving out statements." The court stated "it's against the rules, go to someone who's represented by a lawyer behind their back to try to get information. It's improper. It can't be done. [¶] As a matter of fact, if he tried to do that and he actually did that, he could lose his license to practice law."
Dowell argues the trial court abused its discretion by denying the Marsden motion because counsel failed to interview Amanda. He asserts trial counsel misconstrued the ethical rule prohibiting contact with a represented party. (Rules Prof. Conduct, rule 2-100 (Rule 2-100) ["While representing a client, [an attorney] shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer"].) Dowell asserts Amanda was not a "party . . . in the matter." He further asserts Amanda's lawyer represented her for the limited purpose of advising her at the preliminary hearing regarding her Fifth Amendment rights and did not represent her after the preliminary hearing: "Once her testimony was taken on the record, [Martin's] representation of her concluded. [¶] When Amanda attempted to communicate with defense counsel, counsel had no ethical duty to seek permission from her former attorney on a different matter to interview the key witness against his client."
Under Marsden, when a defendant seeks to discharge appointed counsel because of inadequate representation and substitute another attorney, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's allegedly inadequate performance. (People v. Abilez (2007) 41 Cal.4th 472, 487-488 (Abilez); Marsden, supra, 2 Cal.3d at p. 123.) Defendant must demonstrate counsel provided inadequate representation or an irreconcilable conflict existed that made effective representation unlikely. (Abilez, supra, 41 Cal.4th at p. 488; see Strickland v. Washington (1984) 466 U.S. 668, 691 (Strickland) [to establish a claim of ineffective assistance of counsel, a defendant must show counsel's representation failed to meet an objective standard of professional reasonableness and absent counsel's deficiencies there is a reasonable probability the result would have been more favorable to the defendant]; A Marsden motion is addressed to the discretion of the trial court (People v. Vera (2004) 122 Cal.App.4th 970, 979), and a defendant bears a heavy burden to prevail on the motion. (People v. Bills (1995) 38 Cal.App.4th 953, 961.) No abuse of discretion will be found unless refusal to relieve "'counsel and appoint replacement counsel would "substantially impair" the defendant's right to effective assistance to counsel.'" (Abilez, supra, 41 Cal.4th at pp. 487-488.)
The trial court did not abuse its discretion in concluding trial counsel was providing adequate representation. Trial counsel consulted with his supervisors, including the public defender, and the office also consulted with the State Bar ethics hotline. These sources advised trial counsel he could not communicate with Amanda without her lawyer's permission, but Amanda's attorney refused to allow any contact. In denying the Marsden motion, the court concurred trial counsel could not communicate with Amanda under the circumstances. Dowell failed to establish his trial attorney's representation fell below an objective standard of reasonableness under prevailing professional norms.
The record does not support Dowell's argument the alternate defender's representation of Amanda terminated at the conclusion of the preliminary hearing. The court's order following the grant of immunity required Amanda to "answer such questions as may be propounded, and produce such evidence as may be requested in all hearings and trial in the above entitled case . . . ." (Italics added.) As noted in the petition for an order compelling her testimony, Amanda was advised she could "be prosecuted or subjected to penalty or forfeiture of any perjury, false swearing or contempt in answering, or failing to answer, or in producing, or failing to produce evidence in accordance with the Court's order . . . ." Dowell's lawyer asserted the alternate defender "maintain[ed] representation of her throughout this process." Amanda's lawyer continued to represent her after the preliminary hearing and continued to deny permission for Dowell's attorney to speak with Amanda.
We also reject Dowell's contention his lawyer did not need the permission of Amanda's lawyer to speak with her because Amanda was not a "party . . . in the matter." In Jackson v. Ingersoll-Rand Co. (1996) 42 Cal.App.4th 1163, 1167, defense counsel communicated with a represented former plaintiff, the wife of a coplaintiff in a personal injury case who had been dismissed because she no longer had a claim for loss of consortium. The appellate court rejected the notion an attorney could contact a former party still being represented by counsel without obtaining counsel's permission, explaining, "Under Rule 2-100, 'party' broadly denotes person, and is not limited to litigants, so [her] dismissal from the case does not conclusively settle the question." (See also Drafter's notes foll. Rule 2-100 ["Rule 2-100 is intended to control communications between a member and persons the member knows to be represented by counsel unless a statutory scheme or case law will override the rule"].) Even if Amanda was not a party in Dowell's prosecution, she was a participant in the alleged criminal activity, a witness to that activity, and the court appointed counsel to advise her and protect her interests. The rule against communicating with a represented party without counsel's consent is designed to protect the represented person's substantive interests. Under these circumstances, we discern no reason to give rule 2-100 the cramped interpretation urged by Dowell.
Finally, any misapprehension by defense counsel concerning the ethical constraints against communicating with Amanda, a view shared by the trial court, did not result in demonstrable prejudice. (See Strickland, supra, 466 U.S. at p. 691 [defendant must demonstrate a reasonable probability of a more favorable result but for counsel's deficient performance].) Amanda spoke to officers, and defense counsel cross-examined her at the preliminary hearing. The appellate record does not reflect Amanda had exculpatory information she previously had not disclosed. The evidence of guilt, apart from Amanda's statements and prior testimony, was strong. Text messages from Dowell's and Amanda's cell phones reflected Dowell directed Amanda in performing acts of prostitution. His actions in attempting to detect surveillance, evade officers, and conceal or destroy evidence reflected consciousness of wrongdoing. It is not reasonably probable that Dowell would have achieved a better result had counsel spoken with Amanda. B. The Trial Court Did Not Err in Admitting Amanda's Preliminary Hearing Testimony
Dowell asserts admission of Amanda's preliminary hearing testimony at trial violated his Sixth Amendment right to confront and cross-examine witnesses because the prosecution failed to exercise reasonable diligence to secure her attendance. Because the record demonstrates the prosecution made substantial and good faith efforts to produce Amanda for trial, we conclude Dowell's claim lacks merit.
On the first day of trial, September 15, 2015, the court conducted a hearing (Evid. Code, § 402) to determine whether to authorize admission of Amanda's preliminary hearing testimony based on the prosecutor's claim she was unavailable for trial. The evidence showed that after her arrest, Amanda, who had no family in California, took a bus back to Colorado. Before she departed, the prosecution team served a subpoena on her to testify at the July 9, 2015, preliminary hearing. Amanda returned from Colorado with a female friend and testified at the hearing. She stated at the hearing she intended to return to Colorado. She gave Archer her current cell phone number, but claimed she had no address. Archer contacted Amanda via text message on July 11, and again via text and phone on July 27. The court arraigned Dowell on the information on July 23, and set trial for September 10. On July 24, the prosecution team sent a subpoena to Amanda's last known address on Lynn Crest Drive in Colorado Springs. The post office returned the subpoena as undeliverable on August 21. The prosecution team unsuccessfully attempted to contact Amanda via phone on August 27, August 31, and September 14.
The prosecution filed a trial brief requesting the trial court to admit into evidence Amanda's prior testimony. Although not all the facts contained in the brief were adduced through Godinez's testimony, the court and parties apparently relied on these facts in arguing the motion. We accept them for present purposes. --------
Godinez, the district attorney's investigator, testified one of his duties was to maintain contact with Amanda. Sometime after the preliminary hearing, he asked Archer for Amanda's contact information. According to Archer, Amanda had been cooperative, but as the trial date approached she stopped responding. Archer sent Godinez a text message that Amanda was returning to Colorado. Godinez called Amanda's phone number without success. Godinez performed a credit check on September 3 and discovered a more recent address in Colorado. At Godinez's request a Colorado police officer checked the new address, but the Colorado officer determined Amanda had not lived at the residence for about 18 months. He and Archer had no other leads concerning Amanda's whereabouts.
The defense gave Godinez a new phone number for Amanda shortly before he testified at the section 402 hearing. The first time Godinez called someone answered and immediately hung up. The second time he left a message. When Amanda called back, Godinez identified himself, stated his purpose in calling, and asked where she lived. She replied she "didn't really live anywhere." Godinez asked Amanda if the background noise he heard was aircraft. She confirmed there was aircraft and he thought she stated she was at an airport in South Carolina. Godinez said they would fly her out to testify, but Amanda said she wanted to make her own travel arrangements and would call him later to let him know. Godinez had not heard from her again.
Godinez performed an Internet search using her telephone number and found it was linked to a prostitution Web site. Information in the listing suggested Amanda had been in various locations during August and September, including New Mexico, Utah, Indiana, Tennessee, and Virginia. Godinez believed this pattern reflected Amanda was engaged in transient prostitution. Godinez testified he did not have an address to subpoena Amanda and had exhausted resources to secure her attendance at trial. Although she had not called him back, he had not tried calling her again at the time of his testimony.
The prosecutor noted Dowell had not waived time for trial, five days remained to try Dowell within the speedy trial period, and the prosecution had attempted to serve a subpoena on Amanda in Colorado immediately after the court set the trial date.
The trial court found Amanda was unavailable for trial despite the prosecution's exercise of due diligence in attempting to secure her attendance. The court explained a "considerable amount of effort" had gone into reaching Amanda, and although she was "nominally in touch," she had not "readily agreed to provide a verifiable location and a willingness with some degree of specificity to arrive at this trial." The court stated it was "not going to insist that the People do more than what appears they've already done."
"'"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) That right is not absolute, however. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. Under federal constitutional law, such testimony is admissible if the prosecution shows it made "a good-faith effort" to obtain the presence of the witness at trial. [Citation.] California allows introduction of the witness's prior recorded testimony if the prosecution has used "reasonable diligence" (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. [Citations.]' In this respect, '[t]he constitutional and statutory requirements are "in harmony." [Citation.] The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.'" (People v. Foy (2016) 245 Cal.App.4th 328, 338-339; see Evid. Code, §§ 1291, subd. (a)(2); 240, subd. (a)(5.)
Reasonable or due diligence means "'"persevering application, untiring efforts in good earnest, efforts of a substantial character."'" (People v. Cogswell (2010) 48 Cal.4th 467, 477.) Considerations "include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored." (People v. Wilson (2005) 36 Cal.4th 309, 341.) The prosecution is not required to perform a futile act (People v. Herrera (2010) 49Cal.4th 613, 622 (Herrera)) or "exhaust every avenue of inquiry" (Hardy v. Cross (2011) 565 U.S. 65, 71-72). An appellate court accepts the trial court's factual findings where supported by substantial evidence and conducts an independent de novo review to decide whether the facts demonstrate reasonable diligence. (Herrera, supra, 49 Cal.4th at p. 623; People v. Cromer (2001) 24 Cal.4th 889, 901.)
Dowell asserts the prosecution "waited until trial had begun to locate Amanda." We disagree. The prosecution asserted without contradiction it subpoenaed Amanda at her last known address in Colorado as soon as the court set the trial date. When the subpoena was returned as undeliverable, Godinez attempted to locate Amanda by using contact information Archer gave him, and searched for her using credit bureau information, to no avail. The defense provided a phone number for Amanda, but not until the day of the trial, five days before the expiration of the speedy trial period. Using that number Godinez was able to contact Amanda and attempted to persuade her to appear for trial, but she would not commit, and did not call him back.
Dowell suggests the prosecution should have served Amanda with a subpoena before she left California. But Dowell does not explain how the prosecution could subpoena her to appear for trial when the court had not yet arraigned Dowell or set a trial date. (See § 1327 [requiring witness to appear at specified "day and hour"].) Nor was there yet any reason to believe Amanda would not cooperate. Amanda testified at the preliminary hearing she had just returned to California from Colorado to testify pursuant to a subpoena, and intended to return to Colorado at some point following the hearing. She testified she had lived in Colorado for 21 years, and she had evidently provided a Colorado address to law enforcement. She had been cooperating with the prosecution, and nothing suggested she would not appear at trial. As recounted above, her preliminary hearing testimony favored Dowell in certain respects. She denied he acted as her pimp and stated they split expenses equally. On July 23, the court set trial for September 10, and the prosecution apparently sent Amanda a subpoena to her Colorado address the following day, which was returned as undeliverable around August 17. The record does not pinpoint when Amanda left California, but nothing suggests the prosecution should have been on notice that she provided a false address, or that she would disappear. The prosecution did not act unreasonably by failing to serve a trial subpoena on Amanda before the court set a trial date.
Dowell also complains Godinez did not ask Amanda to reveal her precise location. But a specific location would have been of little use since the record reflects she was leading a transient life as a prostitute and did not have an address, at least not one she would be willing to share with law enforcement. Dowell does not explain what other efforts the prosecution could have made "to pin down [Amanda's] exact location" so that it could secure her attendance at trial in time to honor Dowell's speedy trial rights.
Dowell relies on People v. Masters (1982) 134 Cal.App.3d 509, 526 (Masters) to support his argument the prosecution did not act with reasonable diligence. In Masters, the witness testified at the preliminary hearing, but later moved out of state without telling the prosecution. The prosecution ascertained the witness's address and successfully served her with a subpoena. (Id. at p. 521.) Although reluctant, the witness agreed over the phone to return to California and testify, but the witness moved again and did not appear. (Id. at pp. 520-521.) The appellate court concluded the prosecution should have employed the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases (§ 1334 et. seq. [Uniform Act]) to secure the witness's attendance at trial, as the district attorney's investigator knew the witness's address and phone number, and understood she was reluctant to testify, uncooperative, and out of state. (Id. at p. 526.)
Here, unlike in Masters, the prosecution had no reliable information about Amanda's location. The last contact with her was a phone conversation while she was in a South Carolina airport, but she had no address because she "didn't really live anywhere." The Uniform Act procedure presupposes the witness has been located in the other state. (See § 1334.3 [judge may issue a certificate under the seal of the court specifying the number of days the witness will be required and certificate shall be presented to a judge of a court of record in the county of such other state in which the witness is found].) As a transient moving from state to state, the Uniform Act would have been no help in compelling Amanda's attendance.
The record reflects the prosecution exercised reasonable diligence to secure Amanda's attendance at trial. The trial court therefore did not err in admitting her former testimony. C. Expert Testimony
Dowel next contends the trial court erred in allowing Archer, the prosecution's expert witness, to testify he believed Dowell acted as Amanda's pimp. We agree the trial court erred, but conclude the error was harmless.
Archer testified concerning his training and experience working as vice detective investigating human trafficking crimes. He described the "paradigm shift" in the way society and law enforcement viewed prostitution, explaining the focus had shifted to directing resources at the "people that are living off [exploited] females." Archer estimated 80 to 90 percent of Orange County prostitutes worked with pimps. In Archer's experience, "when prostitutes are contacted with males that they refer to as their boyfriends that are present during acts of prostitution, there has always been evidence that that person is acting as a pimp." Archer described advertising on Internet-based prostitution and Web sites, including the one Amanda used in this case. Some prostitution ads will use "no African-American [or black] males . . . because they're afraid of another pimp trying to take them over." He described a "Romeo" or "boyfriend-type pimp" who "will use brainwashing techniques . . . to have the female victims work for them and provide for them financially." A prostitute often covers for and protects this kind of pimp.
Toward the end of Archer's redirect testimony, the prosecutor asked Archer: "Officer, even though Amanda, during your conversation or interview with her, told you that . . . she didn't have a pimp, [Dowell] was not her pimp, that she was independent based on your training and experience and your review of all of the totality of evidence in this case, do you have an opinion as to what the nature of their relationship was?" Defense counsel objected "Foundation. Improper opinion. And the testimony goes [to] the ultimate issue of fact." The court overruled the objection, and Archer testified, "I believe he was acting as her pimp." The prosecutor asked Archer to state the basis of his opinion, and Archer responded, "The fact that he had no legitimate source of income, we know that Amanda [], by her own admission and the fact that she's posted advertisements, was acting as a prostitute. It seemed to me that he was living and not only directing her on how to perform such acts, he was acting as a de facto security person when she was telling him that she was going in an out. [¶] Or I should say, dates would come in and out of the hotel rooms and he would direct her what to do like some of the messages that I previously read." Archer also agreed, over a foundational objection, it was common for a prostitute to assume sole responsibility for the crime and minimize the pimp's involvement.
A person with special "knowledge, skill, experience, training, or education" in a particular field may qualify as an expert witness (Evid. Code, § 720) and testify in the form of an opinion (Evid. Code, § 801) if the subject matter is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a).) But a witness may not express an opinion on a defendant's guilt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.) "The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.'" (Ibid.) We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
In People v. Leonard (2014) 228 Cal.App.4th 465 (Leonard), the trial court admitted a detective's testimony the defendant started out as a "finesse" pimp and developed into a "gorilla" pimp who uses violence and threats against the prostitutes who work for him. (Id. at pp. 492-493.) The detective also opined the testimony he heard supported the inference the defendant engaged in pimping behavior, explaining the defendant's social media postings referenced pimping and prostitution and his style mimicked successful pimps. (Ibid.) The appellate court held the trial court erred in admitting this testimony, but the error was harmless: "Here, [the detective's] testimony regarding what type of pimp [the defendant] was and what 'patterns of behavior in pimping' were shown in [the prostitute's] testimony could reasonably be interpreted as unhelpful comments on [the defendant's] guilt or innocence on the charge of pimping. [Citation.] The jury was as qualified as [the detective] to determine whether the evidence showed [the defendant] was acting as a 'gorilla pimp' or 'finesse pimp,' for example, after [the detective] had explained those terms. [Citations.] [¶] However, even assuming the trial court abused its discretion in admitting this testimony, any error was harmless." (Id. at p.493; People v. Brown (1981) 116 Cal.App.3d 820, 829 [testimony the defendant acted as a runner was tantamount to an opinion the defendant was guilty of the charged crime].)
As in Leonard, we conclude the trial court erred in admitting Archer's opinion that Dowell was acting as a pimp, but the error was harmless. Archer's opinion was brief, and hardly a shock given his other properly admitted testimony. As in Leonard, the court instructed the jury with CALCRIM No. 332, which advised jurors they need not accept the expert's testimony as true or correct and "must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable or unsupported by the evidence." Finally, strong evidence showed Dowell successfully persuaded, procured and intended to influence Amanda to be a prostitute (§ 266i [pandering]; count 1) and derived support from her prostitution (266h [pimping]; count 2). Amanda stated Dowell knew she engaged in prostitution, he was with her "24-7" in the year leading up to his arrest, he had no job or other means of support, and he drove Amanda to her encounters and picked up her afterward. Amanda paid his living expenses and paid for the motel room in Costa Mesa with money derived from prostitution. Amanda's ad "no African Americans" suggested she had a pimp, and text messages reflected Dowell directed Amanda in handling her prostitution clients on June 22. Dowell surveilled the motel parking lot on June 23, he attempted to evade police officers by driving at a high rate of speed, and he attempted to conceal evidence contained on his cell phone by removing the battery. When arrested he possessed money belonging to Amanda derived from her prostitution, and he initially denied knowing Amanda. It is not reasonably probable Dowell would have obtained a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We invited the parties to submit supplemental letter briefs addressing whether the trial court imposed an unauthorized sentence by staying sentencing (§ 654) for pimping (§ 266h, subd. (a); count 2) without imposing a term. (People v. Alford (2010) 180 Cal.App.4th 1463.) The parties agree the sentence was unauthorized, and agree this court should correct the sentence (§ 1260) to impose and stay the low term of three years for pimping.
III
DISPOSITION
The judgment is modified (§ 1260) to impose and stay (§ 654) a three-year low term for pimping (§ 266h, subd. (a); count 2). As modified the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward it to the appropriate correctional authorities.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.