Cal.Rptr.3d 394] Santa Clara County Superior Court, Superior
Court No. B1683806, Trial Judge: Hon. Vincent J. Chiarello
(Santa Clara County Super. Ct. No. B1683806)
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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
General, Counsel for Plaintiff and Respondent: THE PEOPLE.
G. Coleman, Sixth District Appellate Program, Counsel for
Defendant and Appellant: MUHAMMAD KHAN.
Cal.Rptr.3d 395] Following a trial, a jury found defendant
Muhammad Khan 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, 48 Cal.Rptr. 172');">48 Cal.Rptr. 172, 408 P.2d 948
(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.
find 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
The 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
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.
Defendant 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
gave defendant a performance review for 2014. He rated
defendant "outstanding" in five of 14 categories
and "successful" [254 Cal.Rptr.3d 396] 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.
2014 or as late as January 2015, S.S. wrote a recommendation
for defendant in support of his graduate school application.
Defendant’s 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.
HanaHaus 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.
Nevertheless, 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 year’s evaluation.
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.
Defendant’s 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 [254 Cal.Rptr.3d 397] 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
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 had
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 accounts.
The 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. [254
Cal.Rptr.3d 398] Y.S. was screaming to wake up their
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.
Shortly 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
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.
William 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.
Sergeant 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, ...