Clara County Super. Ct. No. B1683806 Trial Judge: Hon.
Vincent J. Chiarello
COUNSEL FOR PLAINTIFF AND RESPONDENT: THE PEOPLE XAVIER
BECERRA ATTORNEY GENERAL GERALD A. ENGLER CHIEF ASSISTANT
ATTORNEY GENERAL JEFFREY M. LAURENCE SENIOR ASSISTANT
ATTORNEY GENERAL RENÉ A. CHACÓN SUPERVISING
DEPUTY ATTORNEY GENERAL BRUCE ORTEGA DEPUTY ATTORNEY GENER
COUNSEL FOR DEFENDANT AND APPELLANT: MUHAMMAD KHAN JARED G.
COLEMAN SIXTH DISTRICT APPELLATE PROGRAM
a trial, a jury found defendant Muhammad Kahn guilty of arson
of an inhabited structure (Pen. Code, § 451, subd.
(b)). The jury found true an enhancement
allegation that he committed the arson by use of a device
designed to accelerate the fire (§ 451.1, subd. (a)(5)).
Defendant was sentenced to a total term of nine years, which
consisted of a five-year term on the arson and a four-year
appeal, defendant challenges the trial court's denial of
his motion to suppress evidence obtained through a warrant to
search his home. He contends that the trial court erred
because (1) the warrant affidavit did not present a
substantial basis for a finding of probable cause and (2) the
good-faith exception to the exclusionary rule did not apply.
Defendant also asserts that under the reasoning of In re
Estrada (1965) 63 Cal.2d 740 (Estrada), this
court must remand this case so that the trial court may order
pretrial diversion for treatment of his mental health
condition pursuant to section 1001.36, which went into effect
while his appeal was pending.
his contentions without merit. Based on legislative history,
we conclude that section 1001.36, which authorizes pretrial
diversion for mental health treatment, does not retroactively
apply to defendant, who had been found guilty following a
jury trial and is serving his sentence. Accordingly, we
affirm the judgment.
The Prosecution's Case-in-Chief
Relationship of Defendant and S.S.
met defendant in approximately late 2013 when S.S. was
working for SAP as part of its start-up-focus program and
defendant was an SAP intern. Later, when S.S. was vice
president of innovations, S.S. was responsible for getting
HanaHaus, which was a work space that was “anchored by
a coffee shop in downtown Palo Alto, ” up and running.
HanaHaus was a vision of an SAP founder. It was meant to
serve “the broader entrepreneurial community of Palo
Alto” and be a place “to hang out and work and be
approximately March of 2014, S.S. advertised the position of
HanaHaus manager, and defendant expressed an interest in the
job. Because defendant had done “a pretty good
job” as an intern on the projects he had done for S.S.
in 2013, S.S. had “no problem” bringing defendant
into the HanaHaus project.
April 1, 2014, defendant began working as the manager of
HanaHaus; he reported to S.S. During the planning and
construction phases, defendant performed his duties extremely
well. Defendant helped S.S. interact with contractors,
architects, and people in the Palo Alto community.
went to S.S.'s house on at least one occasion. In that
instance, S.S. had brought defendant over to his house
because he was lending bicycles to defendant's sisters,
who were visiting from the East Coast. S.S. and defendant
loaded the bicycles in S.S.'s car and took them over to
defendant's apartment. S.S. believed that defendant had
come over to his house one other time, but S.S. could not
recall the circumstances.
gave defendant a performance review for 2014. He rated
defendant “outstanding” in five of 14 categories
and “successful” in the remaining categories. In
the category of “teamwork, ” which refers to
“getting along with... fellow team members, ”
defendant received an excellent rating for 2014.
or as late as January 2015, S.S. wrote a recommendation for
defendant in support of his graduate school application.
job performance began to “drop quite a bit” as
they got close to the launch of HanaHaus. HanaHaus opened in
March 2015. After HanaHaus was up and running, S.S. took on
the additional responsibility of strategic product
development at SAP.
operated with the support of four or five outside
contractors. Blue Bottle Coffee ran the coffee shop.
Defendant's managerial duties required him to be
physically present to run HanaHaus's “day-to-day
operations.” His duties included ensuring that the
contractors “performed their jobs well” and
managing reservations for the workspace.
manager, defendant was also responsible for handling social
media for HanaHaus, including posts on Twitter, Facebook, and
Instagram. Defendant was supposed to create “a
marketing and communications buzz” and broadly
communicate information about HanaHaus. He had exclusive
control of HanaHaus's social media accounts.
HanaHaus opened, his performance “really started to go
down, ” according to S.S. Defendant had “many,
many absences, ” and when asked about his absences,
defendant often gave medical reasons for them. Defendant also
disappeared from work during the day without telling S.S. or
anyone else at HanaHaus that he was leaving. S.S.'s
relationship with defendant became frayed because S.S. had
his “broader responsibilities” in addition to his
responsibility “to run HanaHaus efficiently.”
had received complaints about defendant's behavior from
his other HanaHaus staff. One complaint was that defendant
allowed people that he knew to use HanaHaus without a
reservation and without paying.
in April of 2015, S.S. signed off on defendant's raise
and promotion based on defendant's 2014 performance. At
trial, S.S. explained that it took about four months for SAP
management to approve recommendations based on the prior
informed “HR” that defendant was taking long sick
leaves and not showing up for work. In 2015, S.S. gave
defendant a memo, dated May 19, 2015, that documented
defendant's deficient performance, and S.S. then
discussed the memo in person with defendant while an HR
manager was on the phone. The memo also addressed improper
charges that defendant had incurred on an SAP credit card,
including “a very high Uber receipt.” S.S. went
over a three-month performance plan for defendant. It
specified tasks to be done by certain dates and provided for
weekly follow ups. The HR manager asked defendant to read the
memo and sign it, but defendant never signed it.
job performance did not improve. Defendant continued to take
unapproved leaves and vacation time. While supposedly on
leave, defendant showed up for at least one event hosted at
HanaHaus. In September or October of 2015, S.S. personally
informed defendant that he could not be at HanaHaus while on
sick leave. Defendant told S.S., “This is a public
place” and “I can come and go as I please.”
S.S. thought defendant's attitude was “[v]ery
aggressive” and “[v]ery arrogant.” The
staff reported to S.S. that defendant was at HanaHaus three
or four times. S.S. met defendant there and asked him to
leave a couple of times. Defendant did not appear to be sick
on those occasions. Defendant did not work most of the time
between the end of October 2015 and Thanksgiving.
November 26, 2015, at approximately 2:00 a.m. California
time, S.S., who was traveling abroad, received a phone call
from the security company responsible for HanaHaus's
alarm system. S.S. learned that there had been a possible
break-in and that a sensor had indicated “door open,
” but not “glass breaking.” S.S. inferred
that someone with a key who did not know the alarm code had
gone into HanaHaus. Only S.S. and those who had to enter
HanaHaus after closing, such as delivery personnel for Blue
Bottle, had the security code for the alarm system.
Defendant, as the manager of HanaHaus, had “full
clearance to come and go” as he pleased during open
hours, but he did not have the security code.
Monday, November 30, 2015, after S.S. had returned home, he
reviewed the security camera recording for November 26, 2015.
It showed someone entering HanaHaus from the back parking
lot. Although S.S. could not see the intruder's face
because he was wearing “some kind of mask, ” S.S.
identified him as defendant based on his body type, his walk,
his trousers, and his shoes. Toward the beginning of the
recording, S.S. saw defendant, who was wearing a red and
white-striped shirt, hunch down at an angle. This movement
was consistent with someone unlocking the bolt at the bottom
of the doors.
the end of the recording, S.S. saw defendant hop or skip.
S.S. subsequently found out that cockroaches had been
“thrown” into HanaHaus, which had never before
December 1, 2015, the day after S.S. had identified defendant
in the security recording, defendant was terminated from SAP.
Although S.S. was not the one who actually terminated
defendant, S.S. provided the information to HR. S.S.
indicated that he feared for his safety at this point because
of defendant's level of aggression and his lack of
respect for the law or rules. On cross-examination, S.S.
agreed that defendant had “never threatened, taunted or
intimidated [S.S.] in any way” during “the entire
time that [S.S.] worked with him at SAP.”
defendant's termination, it was discovered that “a
whole bunch of nonsense” and misinformation had been
posted on HanaHaus's Google Places account. Defendant had
also posted that HanaHaus was going to be converted into an
SAP office, which was inconsistent with the city's
approval of HanaHaus. Defendant had changed the passwords to
the social media accounts and not given them to anyone else.
It proved very difficult to recover control of those
Residential Fire on January 9, 2016
morning of Saturday, January 9, 2016, S.S and his wife, Y.S.,
awoke to a beeping sound in their Palo Alto home where they
lived with their daughter, who was a high school senior. The
noise was coming from a fire alarm and smoke detector in
their garage. Y.S. realized that their garage was full of
smoke and she screamed, “Fire. Call 9-1-1.” The
concrete appeared to be on fire. She saw that the wooden
corner of the garage was on fire and that flames were
shooting up. Multiple fires were burning. 911 was called.
was terrified. She thought her cars, which had full tanks of
gas and were parked in the garage, were going to blow up.
Their daughter was asleep in the house, and teenagers are
hard to wake up. Y.S. smelled burning wood and gasoline. Y.S.
was screaming to wake up their daughter.
came running out, and they began trying to put out the fires
using garden hoses. S.S. smelled gasoline and thought that a
rag or piece of towel was soaked with gasoline. Pieces of
towel or rags, some in containers, had been placed under the
garage door, and they kept burning. Gasoline that was puddled
along the length of the garage door kept burning.
and Y.S. finally managed to put out the fires. The police and
firefighters responded. Y.S. realized that her hand was
burned. She believed that had happened when she unhooked the
red hot, metal clasp that held the two sliding, single-car
garage doors in place.
after the fire was out, S.S. realized that the fire had been
intentional. S.S. did not have enemies or neighbors with whom
he did not get along. He could think of only one person who
would set fire to his house while his family and he were
sleeping, and that person was defendant. Approximately five
to 10 minutes after the fire had been put out, S.S. reached
the conclusion that defendant was the perpetrator.
Lopes, a fire investigator and a fire inspector for the City
of Palo Alto Fire Department, testified as an expert. On
January 9, 2016, Fire Inspector Lopes was the on-call arson
investigator, and he was called out and asked to determine
whether arson had occurred at the residence.
January 9, 2016, Dujan Green, a detective with the
investigative services division of the Palo Alto Police
Department, collected pieces of blue singed cloth, singed
headwear with a “TOP headwear” label, and a
rubber gasket. At the crime scene, Detective Green smelled an
odor “resembl[ing] gasoline.” He took swabs of
possible accelerant for testing.
Whitaker, a City of Sunnyvale police officer, was certified
as both a police officer and a firefighter. He was a
“K9 handler” of Kodiak, “a police service
dog, ” which was certified in detecting accelerants,
including gasoline. Officer Whitaker responded to the scene
and was asked to perform an accelerant search. There were
four burnt areas along the garage, and Kodiak alerted in
three of the locations.
Inspector Lopes determined that someone had intentionally set
the fire. There were multiple start points, and the burn
patterns suggested sequential ignition. The arson originated
on the residence's exterior, specifically the corner of
the garage near a sliding garage door. There were remnants of
“shop rags or dish towels” on the driveway. He
smelled gasoline. “Gasoline is an extremely volatile,
neighbor on S.S.'s street had a “Nest Cam, ”
which continuously sent time-and-date-stamped video
recordings to Google Cloud. Upon request, the neighbor
provided recordings from the early morning hours of January
9, 2016 to the Palo Alto Police Department. In one recording,
a vehicle could be seen leaving at 6:18 a.m. and the Fire
Department could be seen arriving at 6:23 a.m.
Anthony Becker, an officer with the Palo Alto Police
Department, saw the home security video showing a vehicle,
believed to be a Cadillac ATS, driving to and away from the
crime scene. The sergeant learned that defendant had been
identified as a person of interest, and he began trying to
determine whether defendant owned or had rented a vehicle.
Moore, a City of Palo Alto police officer, was involved in
the arson investigation on January 9, 2016, and he was tasked
with searching the area for a dark colored sedan. His
vehicle's mounted camera recorded as he drove. A
photograph of a vehicle that he passed at approximately 8:30
a.m. that morning was later extracted.
reviewing Officer Moore's video, Sergeant Becker saw a
dark (either black or dark gray) Cadillac ATS parked along
the curb, adjacent to defendant's address. The sergeant
could see the vehicle's license plate, and he was able to
track the vehicle to Zipcar. Zipcar rental records obtained
by search warrant showed defendant had rented a Cadillac ATS
with that license plate. It would have taken 10 to 15
minutes, depending upon the route, to drive from
defendant's address to the victims' address at about
6:00 a.m. on a Saturday morning.
Eric Bulatao, an officer with the City of Palo Alto Police
Department, also investigated the January 9, 2016 arson. The
police obtained defendant's phone number from S.S. and
then contacted the carrier. The police obtained the past 24
hours of defendant's phone records and determined that
the last phone call had been made to Zipcar.
Anajanette Holler, a police officer with the Palo Alto Police
Department, was part of a team that executed a search warrant
of defendant's home, a small studio apartment, at
approximately 10:00 a.m. on January 10, 2016. She was looking
for evidence of arson. Officer Whitaker and Kodiak
participated in the search of defendant's home. Kodiak
alerted on the shoe and sock found together on the ground
inside the front doorway. Kodiak showed ...