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People v. Khan

California Court of Appeals, Sixth District

October 28, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
MUHAMMAD KHAN, Defendant and Appellant.

          Santa 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

          ELIA, J.

         Following a trial, a jury found defendant Muhammad Kahn guilty of arson of an inhabited structure (Pen. Code, § 451, subd. (b)).[1] 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 enhancement.

         On 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.

         We 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.

         I

         Evidence

         A. The Prosecution's Case-in-Chief

         The Relationship of Defendant and S.S.

         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 productive.”

         In 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.

         On 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 circumstances.

         S.S. 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.

         In 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.

         As the 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.

         After 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.”

         S.S. 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.

         S.S. 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 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.

         On 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.

         On 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.

         Toward 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 cockroaches.

         On 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.”

         After 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

         On the 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.

         Y.S. 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.

         S.S. 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.

         S.S. 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 perpetrator.

         The Investigation

         Shane 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.

         On 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.

         Fire 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, flammable liquid.”

         A 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, and he began trying to determine whether defendant owned or had rented a vehicle.

         Christopher 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.

         In 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.

         Detective 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.

         Agent 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 ...


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